Hellessey v MetLife Insurance Limited - [2017] NSWSC 1284 - NSWSC 2016 case summary — Zoe

NSWNSWSC

Hellessey v MetLife Insurance Limited

[2017] NSWSC 1284

Supreme Court of NSW|2016-12-09|Before: Robb J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-12-09

Before

Robb J

Catchwords

INSURANCE - Life insurance - Whether second defendant validly rejected plaintiff's claim - Whether plaintiff was totally and permanently disabled at the assessment date.

Source

Original judgment source is linked above.

Catchwords

INSURANCE - Life insurance - Whether second defendant validly rejected plaintiff's claim - Whether plaintiff was totally and permanently disabled at the assessment date.

Judgment (97 paragraphs)

[1]

Solicitors: Slater and Gordon Lawyers (plaintiff) HWL Ebsworth Lawyers (defendant) File Number(s): 2015/241436

[2]

Table of contents Introduction TPD definitions Events that caused Ms Hellessey's PTSD and Major Depressive Disorder Pleaded case concerning MetLife's response to claim Primary issues Proper construction of TPD definition Legal principles When will the insurer's decision be reasonable? Should the insurer's decision be subject to critical analysis? What is the significance of the timing of the medical evidence? When will the insurer have constructively rejected the claim? Why can the court decide whether the claimant is TPD? What is the effect of the insurer agreeing to reconsider the claim? What is the significance of the words "unlikely ever"? What should be done when there is psychological injury? What are the consequences of the incapacity that must be established? MetLife's first procedural fairness letter dated 12 April 2004 Ms Hellessey's application Dr Durrell's reports Mr Ward's reports Dr Falk's reports Vocational assessment report Dr Hodgson's reports Dr Bertucen's report MetLife's internal email dated 4 September 2014 Processing of claim by MetLife First rejection dated 22 December 2014 Treatment of Dr Falk's reports Treatment of Mr Ward's reports Treatment of Dr Bertucen's report Treatment of Dr Hodgson's reports Treatment of vocational assessment report Treatment of surveillance report Treatment of Facebook posts Failure to deal with Dr Durrell's reports Adequacy of MetLife's reasoning Request for review of first rejection MetLife's second procedural fairness letter dated 10 September 2015 Dr Bertucen's 17 August 2015 report Second rejection dated 19 October 2015 Adequacy of MetLife's reasoning Request for review of second rejection Dr Westmore's report Release of 'implied undertaking' MetLife's third procedural fairness letter dated 11 May 2016 Communications after MetLife's third procedural fairness letter MetLife's fourth procedural fairness letter dated 31 October 2016 Third rejection dated 30 November 2016 Lay evidence Evidence of Ms Bernadette Hellessey Affidavit evidence Cross-examination Credibility of Ms Hellessey's evidence Evidence of Mr Paul Hellessey Evidence of Ms Gloria Eves Evidence of Ms Maree Manning Evidence of Ms Lahnee (Lorraine) Cleary Evidence of Mr Daniel Harvey Medical evidence Evidence of Dr Anthony Durrell Evidence of Professor Mattick Evidence of Mr Peter Rawling Evidence of Dr Bruce Westmore Ms Hellessey's Facebook posts Ms Hellessey's medication Alleged first constructive rejection Entitlement to contest the validity of the first and second rejections Validity of first and second rejections Internal MetLife report that TPD finding was probable Alleged second constructive rejection Validity of third rejection Summary of the process that led to the third rejection Third rejection letter dated 30 November 2016 (pars 520 to 534 above) Fourth procedural fairness letter dated 31 October 2016 (pars 440 to 519 above) Third procedural fairness letter dated 11 May 2016 (pars 387 to 426 above) MetLife's treatment of the evidence MetLife's treatment of Ms Hellessey's sworn lay evidence MetLife's rejection of Mr Rawling's supplementary report MetLife's rejection of Dr Westmore's supplementary report MetLife's rejection of Mr Rawling's report MetLife's failure to engage seriously with the evidence of Dr Durrell MetLife's rejection of Dr Westmore's primary report MetLife's reliance upon the vocational assessment report MetLife's reliance upon Dr Bertucen's 17 August 2015 report and Dr Hodgson's 13 May 2012 report MetLife's rejection of Dr Westmore's supplementary report dated 20 June 2016 MetLife's reliance upon Professor Mattick's report MetLife's determination of the significance of Ms Hellessey's activities Horse related shows and events Facebook posts Fairymead Palomino Association and the Goulburn Pony Club Shopping activities Conclusion as to validity of third rejection Entitlement of Ms Hellessey to TPD benefits Conclusion

[3]

Introduction

The plaintiff, Ms Bernadette Cyd Hellessey, commenced these proceedings by statement of claim filed on 18 August 2015, in which she joined FSS Trustee Corporation (the Trustee) and MetLife Insurance Ltd (MetLife) as defendants.
The Trustee has at all material times been the trustee of the First State Superannuation Scheme (Scheme), of which Ms Hellessey has been a member. Under the rules governing the Scheme, Ms Hellessey was entitled to a benefit if by reason of illness or injury she satisfied the definition of Total and Permanent Disablement (TPD). The rules also permitted the Trustee to provide the benefit by means of insurance policies entered into by the Trustee for the benefit of the members of the Scheme.
Relevantly, the Trustee entered into two policies of insurance with MetLife called the "Blue Ribbon" Group Life Insurance Policy and the "MetLife Insurance" Group Life Insurance Policy.
Ms Hellessey was formerly a member of the New South Wales Police Force from which she was retired by reason of her acquiring Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder as a result of events that occurred in the course of her duties as a police officer. Ms Hellessey ceased work on 30 August 2010 and has not worked since.
Ms Hellessey claims that she is entitled to be paid a benefit under the rules of the Scheme, and that under each of the policies MetLife is required to pay the TPD benefit provided for in the policies to the Trustee for Ms Hellessey's benefit.
Ms Hellessey claims that if the Trustee is entitled to be paid the benefits under each of the policies, the amounts payable will be not less than $618,653 in the case of the Blue Ribbon policy, and not less than $170,100 in the case of the MetLife Insurance policy.
The Trustee and Ms Hellessey have come to an accommodation and the case has proceeded upon the basis that Ms Hellessey has prosecuted her claim against MetLife for recovery of the amounts that she claims are payable by MetLife under the policies to the Trustee. If Ms Hellessey succeeds in her claim, then the court will make orders in terms that are appropriate to ensure that she receives the benefits to which she is entitled under the Scheme. The Trustee did not participate in the hearing. MetLife did not object to the arrangement whereby Ms Hellessey prosecuted against it the Trustee's claims under the policies.

[4]

TPD definitions

Clause 6 of the First Schedule to the Blue Ribbon policy contained the definition of TPD relevant to that policy as follows: TOTAL AND PERMANENT DISABLEMENT: While covered under this Policy Total and Permanent Disablement shall mean: (a) The Insured Member suffering the loss of use of two limbs or the sight of both eyes or the loss of use of one limb and the sight of one eye (where limb is defined as the whole hand or the whole foot), or (b) In the case of an Insured Member whose Normal Hours are 15 hours each week or more at the time of the Insured Event giving rise to the claim: The Insured Member having been absent from their Occupation with the Employer through injury or illness for six consecutive months and having provided proof to our satisfaction that the Insured Member has become incapacitated to such an extent as to render the Insured Member unlikely ever to engage in any gainful profession, trade or occupation for which the Insured Member is reasonably qualified by reason of education, training or experience. (c) In the case of an Insured Member whose Normal Hours are less than 15 hours each week at the time of the Insured Event giving rise to the claim: The Insured Member, because of injury or illness becomes permanently unable to perform the basic activities normally undertaken as part of everyday life. This will be evidenced by being unable to undertake any two of the activities listed below: (i) Bathing - to shower or bathe (ii) Dressing - to dress or undress (iii) Toileting - to use the toilet including getting on and off (iv) Feeding - to eat & drink (v) Mobility - to get in or out of their wheelchair (vi) Continence - to control bladder and bowel function If the Insured Member can perform the activity on their own by using special equipment the Insured Member will not be considered unable to perform the activity.
Clause 3 of the Blue Ribbon policy required MetLife, subject to the provisions of the policy, to pay to the Trustee the Sum Insured in respect of a member, if that member "suffers from TPD while this policy is in force".
The MetLife Insurance policy contained an identical definition of TPD in the Definitions section of the policy, save that it contained an additional provision that is not material to the present case, which provided that TPD also included the situation where the member suffered from permanent deterioration or loss of intellectual capacity so as to be required to be under continuous care and supervision by another adult on a permanent basis.
The part of the definition of TPD that is relevant to the present case is that set out in par (b) of the TPD definition above concerning the occurrence of an injury or illness that incapacitates the member to such an extent as to render the member unlikely ever to engage in any gainful profession, trade or occupation for which the member is reasonably qualified by reason of education, training or experience.
It has been necessary to set out the other components of the definition of TPD for the purpose of dealing with an argument put by MetLife in final submissions to the effect that the court should assess the extent of the incapacity that was required to satisfy par (b) of the definition in cases where the injury or illness has led to psychological incapacity, by comparing that incapacity in some way against the physical incapacities described in the other paragraphs. I will return to this issue below.
The parties agreed that the six consecutive months during which Ms Hellessey was absent from her employment through injury or illness ended on 1 March 2012. I will refer to this date as the "assessment date".

[5]

Events that caused Ms Hellessey's PTSD and Major Depressive Disorder

Ms Hellessey provided in her affidavit a detailed explanation of the experiences that she had while in the Police Force that caused her to suffer from what she claims to be chronic PTSD and Major Depressive Disorder. MetLife has not challenged that evidence. It is nonetheless fitting that the evidence be recorded, albeit in a somewhat abbreviated form.
Ms Hellessey was made a constable in the Police Force on 4 May 2001. She said in her affidavit that she had attended numerous traumatic incidents including fatal motor vehicle accidents, cases of death and abuse of children, murders, suicides, violent crime scenes and assaults, drug and alcohol abuse, aggressive behaviour from criminals, and other traumatic incidents.
In May 2001, she attended a fatal truck crash in which the truck had rolled down a hill, and she had to remove the deceased truck driver's personal items when the corpse was on the roof of the truck and "squashed" in the truck.
While she was still a probationary constable, she attended the site of a suicide where a 19-year-old boy had hung himself from a tree. The deceased's head was black. Ms Hellessey and her partner had to cut him down from the tree. Ms Hellessey had to deliver the death message to the family. She was required to accompany the family to identify the body at the morgue. The rope was still attached to the deceased.
Ms Hellessey attended a fatality at a home in which a 40-year-old man had died in his sleep. His wife refused to believe that the deceased was dead. On another occasion Ms Hellessey was called to a scene where a 30-year-old man had died on a lounge, and Ms Hellessey had to deal with the deceased's partner who became extremely upset when a crime scene was established.
On 13 April 2002, Ms Hellessey's highway patrol partner was killed on duty in his highway patrol vehicle. Ms Hellessey was at home getting ready for her shift with her partner when she was called by a colleague who told her that her partner had been killed but that she still had to go to work to do point duty. She was driven to the accident scene and instructed to guard the scene. She was at the scene of the crashed vehicle from 6 PM to 2 AM. She saw her partner's body in the car where it remained until 1 AM when it was removed by the ambulance. She vomited on the side of the road when her partner's body was being removed from the car.
A few weeks following her partner's death, she had to protect the unlicensed, drink driver who killed her partner from the media when he was attending court.
Subsequently, Ms Hellessey attended a number of other traumatic incidents involving domestic disputes, car accidents and incidents involving mental patients. This often involved people who had been killed and had suffered horrific injuries, including infants as well as a number of suicides.
Ms Hellessey gave the following evidence in her affidavit about the most traumatic incident that she suffered: 25. The most notable traumatic incident occurred on 16 November 2004. While I was sitting and typing at my desk, my colleague, Senior Constable [name suppressed] came up behind me and removed my service pistol from my holster, proceeded to waive the gun around in the air and then pointed it at me. He removed the magazine from the gun and gradually emptied the magazine by throwing bullets at me. I cowered and covered myself as the bullets hit me. The bullets were also hitting a metal chair. It made a noise that made me think that the bullets would go off. I said "Oh my God, it's going off, I'm going to die". I was fearful that the gun was going to be discharged because I had loaded the gun before my shift and knew there was one bullet remaining in the chamber. I repeatedly said to [suppressed], "Stop! Give the gun back" and "You fucking idiot, give it back". I thought I was going to die. I was terrified. [Suppressed] then stripped the pistol and put all the parts in a pile on the floor. After he left the room, I sat there with my head in my hands thinking what just happened. It was a blur…
Ms Hellessey said that her psychological symptoms started at this time. She felt humiliated, angry, scared and numb. She felt dazed and confused about the incident for a long time after the incident. She was very scared of the person responsible for the incident from that point on. She felt he was out of control and capable of anything.
On 22 November 2004, Ms Hellessey was required to attend a scene where a 20-year-old man was waving and pointing a gun at houses, shops and passing motorists in a residential area. Ms Hellessey and her partner approached the man with their guns trained on him. They handcuffed the man and then discovered that the gun was not real. They were then told that the man was disabled and fascinated with guns. Ms Hellessey was distressed and disturbed after the incident as she had almost shot at a disabled man.
On the same day as this incident, Ms Hellessey was required to attend a high-speed motor vehicle collision where three people had been killed when their vehicle had crashed into a pole. The vehicle was ripped in half and the occupants of the vehicle had been ejected from the vehicle, except for a 15-year-old girl who was 7 months pregnant at the time. The limbs had been ripped off the two male occupants' bodies in the collision. Ms Hellessey performed point duty at the scene for several hours during which she could see what was left of the victims. There was a victim's leg on the driveway. There was part of a victim's head and skull on the telegraph poll where the car had hit and body parts around the car. Ms Hellessey was required to cover the body parts up as she was waiting for the crime scene investigation team to attend. Ms Hellessey said that she felt physically ill, nauseous and overwhelmed. For a long time after the incident, she had nightmares of the body parts that she had seen.
Also on that same day, Ms Hellessey was directed with her partner to a domestic dispute at around 3 AM. A male person had assaulted his partner in front of their toddler children.
After these events, Ms Hellessey felt overwhelmed and stressed. She felt numb, lost her appetite, and was anxious and depressed. She was unable to sleep.
On 6 December 2004, a doctor gave Ms Hellessey a Work Cover Certificate certifying that she was unfit to work from 30 November 2004 to 13 December 2004. Ms Hellessey was diagnosed with anxiety and conversion reaction and referred for counselling.
Ms Hellessey began to develop sleep paralysis, and was waking up during the night, unable to move her body, and having a 'panic' attack feeling that someone was holding a pillow or blanket over her head. Ms Hellessey was given antidepressants by her general practitioner, and lost approximately 10 kg in weight due to stress.
Ms Hellessey remained fearful of encountering the police officer who was responsible for the incident with her gun, and during the time she was off work she had a panic attack when she saw the officer at a supermarket. Ms Hellessey stopped going out of the house by herself after she saw the officer on a number of occasions around the local area. Ms Hellessey was certified as fit for normal duties from 11 January 2005.
Ms Hellessey arranged to be transferred to Hay to get away from the police officer who had threatened her. She was on full duties between July 2005 and January 2008. In January 2008, a drug affected man assaulted her and two other officers, as well as hospital staff. From January 2008, Ms Hellessey was on restricted duties. She did not carry a weapon and was not engaged in operational duties.
In July 2006, Ms Hellessey was subpoenaed to give evidence at the criminal trial of the police officer who had threatened her. Ms Hellessey gave evidence over a day and a half and was cross-examined. She described it as "a horrific experience". She was scared as the police officer was in the court room. She said: "I was shaking like a leaf. My hands would not stop shaking. I was sweating. I felt sick. I was pregnant at the time".
On 7 February 2008, Ms Hellessey was back at work at the Hay police station after having returned to duty from maternity leave. She was called to attend to an incident with a probationary constable. A man she knew was laying in the gutter. The man was aggressive and had to be taken to hospital with a police guard. At the hospital the man said to her: "I know you. You have two little girls. You live on my street. I'm going to slit their throats. Your German shepherd won't be able to stop me. You better watch your back. I'm going to kill your kids". Subsequently, Ms Hellessey was engaged in restraining the man and taking him home with another police officer. The man ran away and had to be restrained when he ran towards a main road. He was taken back to the hospital where he continued to yell threats at Ms Hellessey, saying: "I am going to kill you, I am going to kill your kids".
The next day at work Ms Hellessey had a panic attack and felt fearful. She was shaking and crying. She was taken to hospital.
After that incident Ms Hellessey was put on restricted duties permanently. She was under medical treatment.
In October 2008, Ms Hellessey was transferred to the Goulburn Academy on permanent restricted duties. She was given a clerical type role where she investigated matters within the police college.
Ms Hellessey was given psychological treatment and was prescribed medication by her general practitioner. Towards the end of October 2009, Ms Hellessey had a recurrence of panic attacks, and was prescribed Zoloft. In May 2010, Ms Hellessey had some panic attacks and sleep paralysis and her Zoloft was increased from 25 mg to 100 mg daily.
On 31 August 2010, Ms Hellessey was walking within the Police College and she thought she saw the officer who had threatened her sitting at a desk, which caused her to have a panic attack. She ran away screaming and eventually ran into her husband who was also working at the College. She saw her general practitioner and was put off work and has not returned since.
Ms Hellessey said that after that time she has never been able to properly control anxiety and panic attacks and does not believe that she will ever be able to consider working again.
Ms Hellessey said in her affidavit: 74. After the incident on 31 August 2010 I was overwhelmed with anxiety. I had intrusive thoughts virtually every day about people killing or hurting my children, thinking back to all the accidents and deaths that I had seen and thinking about [suppressed] and I started finding that I could not drive for long distances because I was getting anxious and did not have the confidence to drive. All I was thinking about was that we would die if I was doing the driving and I became overprotective of my children. I was continually frightened that they would be harmed in some manner. I started finding that the very sight of a police uniform was upsetting and seemed to bring on panic. I started to get the sleep paralysis that I had before, but now it was occurring much more regularly. The sleep paralysis is that I think that I am awake but my body is totally paralysed and I cannot move and quite often someone is smothering me. I have to lay there and eventually I force myself to break out of it. 75. I found that I was suffering from shaking. Often my heart was beating at very high rates and I was sweating. I was very irritable and angry and quite aggressive.
Ms Hellessey then gave evidence that she was referred to see Dr Durrell on 5 October 2010, and she has seen him regularly since that time, and often has had consultations over the phone during periods when she was having problems controlling her anxiety. Ms Hellessey also went to see Mr Ward, psychologist, on about 14 March 2011.

[6]

Pleaded case concerning MetLife's response to claim

The present case is not the usual simple one in which the insurer has failed to determine an application for a TPD benefit, or has rejected the application after issuing a single procedural fairness letter (as such letters are commonly described). In this case MetLife has issued four procedural fairness letters and rejected Ms Hellessey's application three times over a period of almost five years. The last rejection was effectively on the steps of the court, as it was delivered to Ms Hellessey's solicitors only a day or so before the commencement of the hearing. MetLife reconsidered the application following requests by the Trustee or Ms Hellessey for that to occur. However, in each case MetLife went beyond a simple reconsideration, and obtained new information upon which to base its determination. Consequently, the manner in which MetLife has responded to Ms Hellessey's claim has had a complex, interrelated and evolving history. As will be seen below, when the facts of this case are laid out in the necessary detail, this matter is exceedingly complicated. It will be necessary to address at the outset in relatively simple terms the history of Ms Hellessey's application in relation to the matters raised by the pleadings.
It appears that the Trustee made the claim for the TPD benefits by an Employer's Statement dated 5 January 2012, which was received by MetLife on 23 January 2012.
In par 24 of the statement of claim, Ms Hellessey alleged that the defendants had failed to make a decision in relation to the claim "and have thereby decided to refuse the…insurance claim". As I understand it, this is an allegation that before MetLife positively rejected Ms Hellessey's claim the first time, it had 'constructively' rejected the claim (to use the expression commonly used in this context). Ms Hellessey also alleged in par 29 that the decision to reject the claim was void and of no effect at law. (The notion that a failure to do something is void and of no effect is curious). Ms Hellessey alleged in par 34 that MetLife is liable to pay to her the TPD benefits under the two policies.
By letter to the Trustee dated 22 December 2014, MetLife rejected the claim made on behalf of Ms Hellessey (the first rejection), having sent to Ms Hellessey its first procedural fairness letter on 17 April 2014. The first rejection occurred almost 3 years after the date of the application.
In circumstances that I will consider in more detail below, the Trustee asked MetLife to reconsider the first rejection, and it agreed to do so. On 19 October 2015, in a letter to the Trustee, MetLife rejected the claim made on behalf of Ms Hellessey for a second time (the second rejection). That followed the second procedural fairness letter on 10 September 2015
Ms Hellessey's solicitors made a further request to MetLife by letter dated 18 December 2015, for the reconsideration of the rejection, and in circumstances that I will consider in more detail below, MetLife agreed to do so.
On 11 May 2016, MetLife sent to Ms Hellessey at her solicitors a third procedural fairness letter to advise Ms Hellessey of the information available to MetLife, and some preliminary considerations that were available, and to give her an opportunity to respond, before MetLife made its third determination of the claim. This is significant because, as will be seen, Ms Hellessey treated this third procedural fairness letter in the amended statement of claim that she subsequently filed as a third rejection of her claim.
In fact, MetLife did not deal with the claim further until after it wrote a fourth procedural fairness letter on 31 October 2016. It then wrote a letter to Ms Hellessey at her solicitors on 30 November 2016 rejecting her claim for the third time (the third rejection). That left only two full business days before the commencement of the hearing on 5 December 2016.
On 6 December 2016, which was the day on which the hearing effectively commenced, Ms Hellessey was given leave to file an amended statement of claim. The document was signed by the solicitor for the plaintiff on 28 November 2016, and did not contain any allegations concerning the third rejection.
In prayer A of the claim for relief, the amended statement of claim sought a declaration that the decisions of MetLife referred to in pars 24, 24D, 24P and 24V were void and of no effect. Prayer B sought a declaration that Ms Hellessey is entitled to the TPD benefits.
Paragraph 24 deleted the allegation in the statement of claim that MetLife had failed to make a decision in relation to the claim before the statement of claim was filed, and pleaded the making of the first rejection on 22 December 2014.
It is significant that in par 24C(h) Ms Hellessey pleaded the Trustee's request to MetLife to review the first rejection.
Ms Hellessey pleaded the reasons why the first rejection was void and of no effect in par 24B.
Paragraph 24D pleaded the second rejection on 19 October 2015. Paragraph 24J pleaded Ms Hellessey's solicitors' request for a second review on 18 December 2015.
The reasons why the second rejection was void and of no effect are alleged in par 24F.
Paragraph 24P alleged that MetLife rejected Ms Hellessey's claim for a third time on 11 May 2016. As I have noted above, that letter was not a rejection but was in fact the third procedural fairness letter, in anticipation of MetLife making the third decision on Ms Hellessey's application.
Having misconstrued the third procedural fairness letter as the third rejection, Ms Hellessey then alleged the reasons why it was void and of no effect in par 24R. In par 24S Ms Hellessey alleged that various letters constituted a request on her behalf for MetLife to review what she had categorised as the third rejection, but which was not a rejection.
Ms Hellessey alleged in par 24T that, by letters dated 7 July 2016 and 24 August 2016, she had informed MetLife that the failure to determine the claim constituted a rejection of the claim. By par 24V Ms Hellessey claimed that, because MetLife had not paid her claim by the date of the further amended statement of claim, it had decided to reject the claim and had thereby "wrongfully, constructively denied" that claim, so that the court ought itself determine on the evidence that she was entitled to the TPD benefits as at the assessment date.
Thus, by her pleading Ms Hellessey has alleged that the first rejection and the second rejection were void and invalid, even though requests were made on her behalf that were acceded to by MetLife that it review its decisions. There is an issue in the case whether, as asserted by MetLife, once it agreed at Ms Hellessey's request to review the first two rejections, Ms Hellessey lost the right to claim that those decisions were ineffective, as a basis for asking the court to determine her TPD claims itself.
Ms Hellessey has alleged that the third procedural fairness letter was an invalid third rejection of her claims, when it was not. Although reasons for the letter's invalidity are pleaded, the letter could not form a basis for the court's determining Ms Hellessey's claim itself.
Ms Hellessey has also pleaded what is usually called a constructive denial claim in relation to MetLife's failure to make a third determination of her claim before the commencement of the hearing.
In fact, as has been observed above, MetLife delivered the third rejection to Ms Hellessey, between the signing of the amended statement of claim and it being filed in court.
In her final written submissions dated 21 December 2016, Ms Hellessey attacked the decision-making process undertaken by MetLife in relation to her TPD claims both on the basis of constructive rejection and on the basis that individual decisions to reject the claims were invalid on the ground of unreasonableness.
Ms Hellessey submitted that there was a constructive rejection by reason of the failure of MetLife to make a determination of her claim by the date that the statement of claim was filed on 18 August 2015. That submission was made notwithstanding that the first rejection letter was written on 22 December 2014, and seems to be based on the overall length of time that had elapsed since the claim was first made, together with the time that had elapsed since the Trustee's request for a review of the first rejection on 24 February 2015. That is a period of about 6 months.
As I have noted above, the amended statement of claim deleted the allegation in the original pleading that MetLife had failed to make a determination by the date the statement of claim was filed.
Ms Hellessey submitted that a constructive rejection had occurred on a second basis by reason of MetLife having failed to make a redetermination on its review of the second rejection, or what Ms Hellessey misinterpreted as the effect of the third procedural fairness letter, before the date the amended statement of claim was filed.
In relation to the actual rejections of her claim by MetLife, Ms Hellessey submitted in her final submissions that the first rejection and the second rejection were invalid on the grounds that they were not reasonable.
Ms Hellessey described the 11 May 2016 third procedural fairness letter as the "Third Decline/Procedural Fairness Letter". She made submissions as to why it also was unreasonable.
Ms Hellessey made submissions in her final written submissions (pars 124 to 129) and her oral submissions (T 27/04/17 at 24 and 25) as to why the real third rejection should not be found to be valid. As I understand it, notwithstanding that the third rejection was not dealt with in the pleadings, the parties joined issue on whether the third rejection should be found to be valid and binding or invalid.
The approach adopted by Ms Hellessey concerning the validity of each of the rejections is evident in the following oral submission of her counsel (T 27/04/17 at 13.13): We would say the approach to it, your Honour, is that it is a cascading approach. One decline letter builds upon the second, and then builds upon two procedural fairness letters to incorporate into a final one, so that if your Honour, for instance, finds the first decline letter is decided, was not properly decided, then the plaintiff will be successful at the first stage.
Ms Hellessey therefore submitted that it was appropriate to determine the reasonableness of each of the rejections in chronological order, and if Ms Hellessey could demonstrate that any one of them was invalid, then the issue of her entitlement to the TPD benefits should be determined by the court.
MetLife relied upon the evidence of the requests made on behalf of Ms Hellessey after each of the first two rejections for MetLife to review its determination, and said that the effect of its agreement to do so was that Ms Hellessey waived any defect in the determination to be reviewed, so that any shortcoming in an earlier rejection would be irrelevant if the third rejection was sustainable. It was MetLife's case that the only rejection that required consideration was the third rejection.
It is appropriate to note at this point two specific aspects of Ms Hellessey's statement of claim.
First, it is not common for claimants to make a case based upon the internal decision-making process of the insurer, but in this case Ms Hellessey pleaded in particular (a) to par 24B of her amended statement of claim that the first rejection was not valid because MetLife had actually satisfied itself that Ms Hellessey satisfied the TPD definition, as evidenced by an internal email dated 4 September 2014, in which one of its officers reported to another that he felt that if the case was to go to court it would rule in favour of the claim, as Ms Hellessey's treating psychiatrist had known the patient from the date of injury and strongly supported the claim. The email recommended admitting the claim. I will return to this issue below.
Secondly, in her amended statement of claim, Ms Hellessey referred to the Claims Review Committee, which was a mechanism created by the terms of the policies for the review of determinations made by MetLife by a committee made up of a nominee of the Trustee, a nominee of MetLife, and an independent person. Ms Hellessey referred in par 24T to a request that her matter be considered by the Claims Review Committee, and in her final written submissions one alternative form of relief requested by Ms Hellessey was that the court order that her claim be referred to the Committee. In final oral submissions Ms Hellessey withdrew that claim for relief.
It will be appropriate to note one aspect of MetLife's defence to the amended statement of claim. In relation to the two policies, MetLife set out in par 12 the specific facts upon which it relied to support its determination that it had not been satisfied that Ms Hellessey had become incapacitated to such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, trading or experience. Omitting particulars, MetLife: (c) says that as at 1 March 2011, the plaintiff was 34 years of age and could reasonably be expected to have a further 31 years of working life; (d) says that as at 10 March 2011, the plaintiff's treating general practitioner, Dr Paul Falk, was of the opinion that the plaintiff was fit to work external to the NSWPF; (e) says that as at 18 May 2011, the plaintiff's treating psychologist, Mr Rodney Ward, said he was supportive of the plaintiff participating in a vocational assessment and that she may be fit for paid employment external to the NSWPF in work which was far removed from policing; (f) says that as at 30 August 2011 Dr Jeff Bertucen, consultant psychiatrist who assessed the plaintiff on behalf of the NSWPF for the purpose of her application for medical discharge, was of the opinion that the plaintiff may recover to the point where she would be fit for paid employment external to the NSWPF in a position which was unrelated to police work. Dr Bertucen believed that such a recovery may take place within six to twelve months after the plaintiff was medically discharged from the NSWPF; (g) says that shortly before the plaintiff's medical discharge from the NSWPF, Mr Ward was of the opinion on 4 October 2011 that there had been an improvement in the plaintiff's 'base line level' of anxiety; (h) says that shortly after the plaintiff's medical discharge, Dr Falk believed on 11 January 2012 that the plaintiff's long term goal should be returned to paid employment; (i) says that work as a learning and development officer, childcare worker, driving instructor, cashier or sales representative was work for which the plaintiff was reasonably qualified by reason of education, training or experience; (j) says that Dr Bertucen believed that, based on his assessment of the plaintiff on 30 August 2011, it was likely that the plaintiff was able to engage in employment as a learning and development officer, childcare worker, driving instructor, cashier or sales representative prior to the plaintiff reaching retirement age. (k) says that the plaintiff has not to date provided proof to the defendant's satisfaction that the plaintiff has become incapacitated to such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience…
The defence to the amended statement of claim was filed in court during the hearing. It is significant that MetLife only pleaded reliance on medical opinions expressed on about or shortly after the assessment date, 1 March 2011. The latest expression of medical opinion was Dr Falk's 11 January 2012 report. Although Dr Bertucen's report was made on 17 August 2015, it was a report concerning his assessment of Ms Hellessey made on 30 August 2011. MetLife ignored all of the later reports, including all of the reports of Ms Hellessey's treating psychiatrist, Dr Durrell, in pleading its defence to the amended statement of claim.
The case pleaded by MetLife in its defence is consistent with the position that it is the apparent likely effect of the claimant's incapacity as at the assessment date, based primarily upon medical opinions expressed on or about that date, that is determinative of whether MetLife ought to have been satisfied that Ms Hellessey's incapacity was in accordance with the TPD definition.

[8]

Proper construction of TPD definition

MetLife raised an argument that on the proper construction of the definition of TPD in the policies, the meaning of par (b) of the definition should be influenced by the terms of the other paragraphs of the definition. That submission was that par (b) "ought to be construed ejusdem generis with these other clauses, giving appropriate recognition to the enormity of the losses for which the other clauses confer exactly the same benefits". Further: "It cannot have been the intention that only those maimed catastrophically or deprived of fundamental independent living capacity be eligible for TPD benefits but that an insured relying on the occupational cover be entitled to the same benefit for much less significant losses".
MetLife made this submission in its written outline dated 2 December 2016, and supported it in oral submissions made on 27 April 2017. It submitted that par (b) "is only available in the most serious cases" (T 27/04/17 at 33.17). The submission sought to draw comparisons between the seriousness of the injuries and illnesses described in the different paragraphs of the TPD definition.
I reject this submission, both as a matter of the proper construction of the TPD definition and the supposed application of the ejusdem generis principle. I will take the statement of that principle from The Interpretation of Contracts in Australia by Lewison and Hughes (Law Book Co, 2012) at [7.12]: If it is found that things described by particular words have some common characteristic which constitutes them a genus, the general words which follow them ought to be limited to things of that genus.
The learned authors set out the following extract from the judgment of Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [31]: The reading down of general words is one of the most common mechanisms applied in the course of legal interpretation. The Court should not give one word in an interrelated, overlapping list of expressions a meaning that is so broad as to be inconsistent with adjoining words or that renders those words irrelevant.
In my view the simple response to MetLife's submission is that the three or four paragraphs of the TPD definition (as the case may be in the different policies) are not drafted in a manner that suggests that they were intended to form a genus, and the separate paragraphs do not contain general words that may be read down so that their effect is consistent with the other paragraphs. Each paragraph is a separate description of a risk covered by the policy. Far from treating the separate paragraphs as forming a genus, it is more likely that the TPD definition has evolved over a period of time by the accretion of essentially different risks.
The result is that each paragraph should be construed according to its own terms by applying the received principles of contractual construction.
Furthermore, in my view the submission should be rejected because it is essentially meaningless and impossible of application. One of the difficulties that arise in dealing with psychological injury in the first place is that the injury though universally accepted to be real has a largely subjective manifestation. From the perspective of the court there are no effective objective measures of the true effect and seriousness of the psychological injury (which is why the court is particularly reliant upon expert medical testimony and lay evidence of the outward manifestations of the injury). Consequently, the court cannot accurately assess the seriousness of a particular psychological injury for the purpose of making a judgment as to whether the injury is "most serious" in comparison to the consequences of the physical injuries described in the other paragraphs of the TPD definition. Put shortly, it is nonsense for the court to attempt to distinguish the seriousness of the psychological injury suffered by a person with PTSD and major depression as being more or less serious than the injury suffered by a person who has lost the use of one limb and the sight of one eye. The submission implies that persons who suffer from the serious psychological effects of PTSD and major depression are less seriously injured than a person who has lost one limb and the sight of one eye, for example, because the person in fact is physically uninjured. There is no basis for this implication either as a matter of scientific foundation or ordinary experience.
The fact that MetLife put the submission is in my view a serious cause for concern. It is not customary in cases of this kind for the insurer to go into evidence and call the claims managers responsible for the rejection of the claim for a TPD benefit. The claimant and the court are left to divine the insurer's decision-making process from any procedural fairness letter that has been issued by the insurer and the letter that explains the reasons for the rejection. Those letters generally do not disclose the precise meaning attributed by the insurer to the relevant TPD definition. The definition is usually set out at the beginning of the rejection letter, and the claimant and the court are left to assume that the insurer has adopted a correct construction of the meaning of the definition in determining whether it should be satisfied that the definition applies.
The vice of the construction of the TPD definition urged on the court by MetLife in this case is that it proposes a gloss to the meaning of the words of par (b). That is, it suggests that the first step in applying that definition is to determine whether the words apply to the particular case, and the second step is then to make a judgment as to whether in the case of a psychological injury, the seriousness of the consequences to the claimant are such as to put the injury in the same class of seriousness as the physical injuries described in the other paragraphs of the definition.
The very making of this submission by MetLife immediately suggested to the court that MetLife may in fact have acted on the basis that par (b) of the TPD definition should be construed in the manner submitted by MetLife. If MetLife in fact did that, in my view it would clearly have asked itself the wrong question in the course of determining whether it should be satisfied that the TPD definition was established.
When that possibility was put to counsel for MetLife in oral submissions the response was (T 27/04/17 at 65.37): I can tell your Honour from the bar table there was something formulated in my head and it's never been reflected in any instructions I've ever received, nor have I seen it anywhere referred to in any document in these proceedings, and what's more and I think this is pretty relevant it's not the subject of a pleading.
Ms Hellessey could hardly have ever pleaded this argument, because the real decision-making process engaged in by MetLife has always been completely opaque, save for what MetLife has chosen to disclose in its procedural fairness and rejection letters. The submission was first put by MetLife in written submissions delivered at the commencement of the hearing.
I have been very concerned by this matter, as a review of all of the evidence that emanated from MetLife would at least support an argument that MetLife may have been influenced by the attitude that underlies the submission in the way that it dealt with Ms Hellessey's application.
As it has happened, however, and as will be seen, I have been able to deal with the issues that arise in these proceedings without having to give any effect to the possibility that MetLife's determination of Ms Hellessey's claim was flawed at its inception because MetLife acted upon what I consider to be a seriously misconceived understanding of the proper construction of the relevant part of the TPD definition. I add that I accept counsel's explanation of the provenance of the submission, but that still leaves room for concern about the approach taken by MetLife in this case.

[9]

Legal principles

The effect of s 13 of the Insurance Contracts Act 1984 (Cth) as in force at the time the policies were entered into was to impose upon each of MetLife and the Trustee obligations of utmost good faith: TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [48] (TAL v Shuetrim) per Leeming JA (Beazley P and Emmett AJA agreeing). The duty is sometimes called a duty of utmost good faith and fair dealing.
As Leeming JA said in TAL v Shuetrim at [49]: [49] The obligation to act in utmost good faith, of course, predates statute. As Emmett J said in AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2005] FCAFC 185; 146 FCR 447 at [88]-[89], the concept of utmost good faith or uberrima fides has always been present in the law of insurance, and 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. That part of his Honour's reasons was agreed with by Moore J and, on appeal, by Gleeson CJ and Kirby and Crennan JJ: CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2007] HCA 36; 235 CLR 1 at [15] and [128].
In the present case, as experience shows often occurs, a time came when Ms Hellessey through her solicitors took over the role of prosecuting the Trustee's claim against MetLife with the acquiescence of both the Trustee and MetLife. Ms Hellessey acted informally as the Trustee's proxy. Although at that time Ms Hellessey was not bound by the duty of utmost good faith (see TAL v Shuetrim at [48]), at least in respect of her role in the prosecution of the claim, MetLife was entitled to require Ms Hellessey to conform to the Trustee's duty of utmost good faith.
MetLife was under an implied obligation to consider and determine whether it should form an opinion on the matter which was a condition of its own liability, being whether Ms Hellessey had satisfied the TPD definition. In forming the opinion MetLife was required to consider and determine the correct question. It was also required to have due regard to the interests of Ms Hellessey. See Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536 and Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; 13 ANZ Ins Cas 90-123 at [36], Santow JA (Spigelman CJ and Tobias JA agreeing).
The decision of the Court of Appeal in TAL v Shuetrim establishes the following propositions (Leeming JA): [60] I do not regard the following as controversial. First, the clause does not turn upon the fact that the Insured Person is unlikely ever to undertake employment, but instead is expressed to turn upon the state of mind of the insurer. [61] Secondly, in considering the matter and reaching a state of satisfaction, the insurer is required to act reasonably. That has been worked out in a series of decisions dating from the mid-nineteenth century, to which McLelland J referred in Edwards v The Hunter Valley Co-op Dairy Co Ltd at 77,536: "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 … 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." [62] Thirdly, there are limits to what flows from the obligation to act reasonably. As McLelland J added: "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." [63] Fourthly, the words "proof to the satisfaction of us" reflect an obligation on the part of the Insured Person to provide evidence in support of his or her claim. [64] Fifthly, the 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]. [65] Sixthly, all of the foregoing is subject to the obligations of good faith on the part of the insurer, as well as the (overlapping) implied obligations to act reasonably and to do all that is necessary to enable the other party to have the benefit of the agreement (see Mackay v Dick (1881) 6 App Cas 251 at 263, Butt v M'Donald (1896) 7 QLJ 68 at 70-71 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450), as set out in the passage in Edwards reproduced above. [66] Seventhly, the closing words of the definition ("any occupation or work for which he or she is reasonably qualified by reason of education, training or experience") are known, according to W I B Enright and R M Merkin, Sutton on Insurance Law (4th ed 2015, Thomson Reuters), vol 2 at 583, as the "ETE clause". That clause materially narrows the scope of the coverage given by the TPD definition, from the perspective of the Insured Person…
Leeming JA by his sixth proposition emphasised that the foregoing propositions were subject to the obligation of good faith "as well as the (overlapping) implied obligations to act reasonably and to do all that is necessary to enable the other party to have the benefit of the agreement".

[10]

When will the insurer's decision be reasonable?

For the purposes of the present case it is important to note that Leeming JA stated his second proposition simply in terms of the insurer being required to act reasonably. That language was adopted from the judgment of McLelland J, and has been used and applied in a great many subsequent cases.
MetLife made a submission that "the appropriate test is (or should be) whether the decision of the insurer was so unreasonable that a reasonable person in that situation could not have made it". The evident intent of this submission was to expand the latitude given to the insurer to decide for itself whether it was satisfied that the TPD definition had been established.
This submission was based upon observations made by Young AJ (as his Honour then was) in Chapman v United Super Pty Ltd [2013] NSWSC 592 at [53], where his Honour said: In this litigation, the onus is on the plaintiff to establish that the Insurer's or Trustee's decision on the material before them to deny the plaintiff indemnity was (a) so unreasonable in all the circumstances that the court is required to intervene, see Tonkin v Western Mining Corporation Ltd [1998] WASCA 101; or (b) that either the Trustee or the Insurer breached some duty to the plaintiff. It is not sufficient for the court to say that had it been the initial decision maker, or if it were an appeal court hearing the matter de novo, it would have come to a different decision. The court must focus on whether the decision of the Insurer or the Trustee or both was so unreasonable that a reasonable person in that situation could not have made it.
It must be accepted that Young AJ formulated the principle in a manner consistent with MetLife's submission in the final sentence of this paragraph. However, earlier in the same paragraph he had expressed the principle in terms of whether the decision was "so unreasonable in all the circumstances that the court is required to intervene". This latter formulation is consistent with Leeming JA's second proposition.
Young AJ's statement was repeated by Nicholas AJ in Folan v United Super Pty Ltd [2014] NSWSC 343 at [74], and by Stevenson J in Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [33] and Mehmet v IOOF Investment Management Ltd [2015] NSWSC 1914 at [30].
In my view, it does not follow from the fact that these judges have set out the extract from Chapman (above) relied upon by MetLife that they intended to endorse Young AJ's final sentence as expressing the correct basis upon which the court should address the reasonableness of the insurer's decision-making process. For example, in Mehmet (above) Stevenson J's final statement concerning the manner in which the insurer was required to determine whether it was satisfied that the requirements of the TPD definition had been established was: [33] However, as the authorities I have set out above emphasise, the insurer must, when making its decision, act reasonably and consistently with its duty of good faith and fair dealing to the insured. The insurer must ask itself the correct question, take into account all of the relevant material and not misstate the effect of the material before it.
That statement of principle is also, with respect, consistent with Leeming JA's second proposition.
A review of the judgment of the Court of Appeal of Western Australia in Tonkin v Western Mining Corporation Ltd [1998] WASCA 101, which was relied upon by Young AJ in Chapman, also shows that the Court of Appeal spoke in terms of aspects of the decision being "reasonable" or "unreasonable", rather than whether the decision was so unreasonable that no reasonable insurer could have made it. The decision does not support Young AJ's final sentence in par [53] of his judgment. It does support his Honour's proposition (a).
In my view, the submission made by MetLife should not be accepted. It is an unwarranted gloss on established principle. A trial judge should simply apply the principles stated by Leeming JA in TAL v Shuetrim (above) at [61], [62] and [65].
The submission that the requirement that the insurer act reasonably in deciding whether it is satisfied that the TPD definition has been established should be equated to an enquiry as to whether the insurer's decision was so unreasonable that no reasonable insurer could have made it invites comparison with the Wednesbury principle in administrative law. I have looked to that principle only in so far as it assists in casting light on what the true effect of the submission made by MetLife might be. It is sufficient in this case to look to the observations by Hayne, Kiefel and Bell JJ in Minister for Administration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [64]-[68] (footnotes omitted): [64] A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of "Wednesbury unreasonableness" in Associated Provincial Picture Houses Ltd v Wednesbury Corporation… … [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. … [68] Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified… See also Kamm v New South Wales (No 4) [2017] NSWCA 189 at [68] (Beazley P).
These considerations show that, although there may be scope for debate concerning the relationship between a test of reasonableness and a test that looks to whether the decision was so unreasonable that no reasonable decision-maker could have made it, the latter test is more liberal and would tend to allow the validity of decisions at the extreme margins of what could be regarded as being reasonable. While the decision of an insurer that is so unreasonable that no reasonable insurer in the circumstances could have made it will be invalid, that is not the sole test of invalidity. A decision may also be invalid because it is unreasonable having regard to the limits on the right of the insurer to decide its own liability imposed by its duty of good faith and fair dealing.
One final observation should be made concerning the passage in the judgment of Young AJ that has been relied upon by MetLife. Young AJ expressed the test in terms of whether the decision was so unreasonable that the court should intervene, rather than whether some important step in the insurer's reasoning process was unreasonable. In the various places where the matter was dealt with in Tonkin (above) it was generally expressed in terms of whether or not it was unreasonable on the evidence for the insurer not to find that the TPD definition was satisfied.
In Jones v United Super Pty Ltd [2016] NSWSC 1551, Brereton J put the matter this way in reliance upon Chapman and other cases at [60] (footnotes omitted): The plaintiff further submitted that it was in any event unreasonable to conclude that his physical restrictions did not preclude him from engaging in the suggested occupations. To sustain that submission, bearing in mind that it is for the claimant to provide the insurer with the requisite evidence to establish his or her claim, the plaintiff must show that, on the medical evidence before the insurer, it would have been unreasonable to form any opinion other than that Mr Jones was so physically restricted as to be incapable of performing the requirements of those occupations.
This raises the question of whether the real test is that the claimant must be able to satisfy the court that, on the basis of the evidence before the insurer, it would have been unreasonable to form any opinion other than that the claimant was so incapacitated at the assessment date as to satisfy the TPD definition. That is arguably a different test than one that simply requires a conclusion that the decision to reject the claim has been formed as a result of a process of reasoning that is sufficiently unreasonable to justify a conclusion that the decision should be set aside.
If that is the test, then claimants will fail in their attempt to invalidate the insurer's determination even where it can be shown that the insurer has made significant unreasonable errors in its decision-making process, unless the claimant can go further and establish that there was no other way that the insurer could reasonably reject the claim on the evidence.
In my respectful view the statements of principle set out by Leeming JA in TAL v Shuetrim (above) do not go that far. The insurer is required to "act reasonably in considering and determining" when forming its satisfaction or opinion as to whether the TPD definition is satisfied, and it must be shown that the view taken by the insurer was unreasonable on the material before it. In my view, if it can be shown on the evidence before the insurer that the actual decision-making process that was adopted by the insurer was sufficiently unreasonable to vitiate the determination, it should not be required of the claimant that he or she be able to exclude all other routes to the insurer reaching the same determination that could have been reasonable.

[11]

Should the insurer's decision be subject to critical analysis?

MetLife made a second submission that had the apparent purpose of limiting the extent of the investigation of the insurer's decision-making process that the court should undertake for the purpose of determining whether the insurer's decision was unreasonable. MetLife submitted "that an insurer's decision should not be subjected to a critical analysis" (emphasis in original). It gave as an example that the reasoning process should not be analysed like a judgment under appeal. It said: "That is especially so here because MetLife's decision incorporates normative judgments and such judgments are not lightly disturbed".
MetLife developed this submission in oral argument by suggesting (T 27/04/17 at 39.16) that the decision by MetLife was "a classic jury question", because the decision-maker is assembling different kinds of information and assessing the degree of credibility in each and attributing weight here and there".
MetLife made a related submission (T 27/04/17 at 40.17) that the approach that the court should adopt when determining whether or not the decision-making process of an insurer was reasonable should involve "top-down reasoning" rather than "bottom-up reasoning". The former approach was described in the following terms: "you have a look at the decision and you look at it to determine whether or not on its face it's unreasonable, in which event it would go" (emphasis added).
Counsel for MetLife distinguished what he submitted was the inappropriate approach involving "bottom-up" reasoning by describing the approach that I adopted in Wheeler v FSS Trustee Corporation [2016] NSWSC 534 and in Panos v FSS Trustee Corporation [2015] NSWSC 1217 as involving the incorrect approach. Unusual as this submission may have been, its meaning is startlingly clear and it had the benefit of assisting me to understand what was sought to be made out of the distinction between the "top down" and the "bottom-up" approaches, which otherwise may have eluded me.
In both of those cases I analysed in detail the evidence that the insurer had before it when it made the determination that was under challenge. I did that largely because the way that the evidence was presented to the court physically took the form of the inclusion of the procedural fairness letter in the court book, followed by copies of all of the evidence upon which the insurer acted, and then the letter rejecting the claim. In both cases the question whether the insurer's decision-making process was unreasonable was approached from the perspective of a detailed analysis of the evidence before the insurer.
MetLife relied in support of its submission on the judgment of Nicholas J in Weber v Tiss Pty Ltd [2005] NSWSC 67 at [8] where his Honour said: [8] It was also accepted that the insurer is not required to undertake the detailed consideration required of a court hearing (Chammas v Harwood Nominees (1993) 7 ANZIC 61-175 at p 78,001); and that the 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 detailed reasons with reference to the evidence relied upon comparable to a judgment of a court or tribunal. The reality must be recognised "… that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272).
With respect, I doubt the appropriateness of equating the position of the insurer under a contract of insurance with that of an administrative decision-maker. The latter will have a statutory right to decide the merits of an application where the decision should not be interfered with judicially if made within the confines of the power of the decision-maker. On the other hand, the insurer exercises a contractual power that is confined by an implied contractual obligation that includes a duty to act in the interests of the insured as well as the insurer.
It should be remembered that in TAL v Shuetrim at [152], Leeming JA expressed "real difficulty in accepting the unqualified applicability of the statement of principle in Weber v Tiss Pty Ltd". The letter declining cover in that case "was no ordinary letter declining cover". His Honour described the circumstances in which the letter had been produced that led him to the conclusion: "It is near inconceivable that the author of the letter was unaware that it would be scrutinised at the final hearing which was shortly to take place, nor that it had not been reviewed by lawyers…" The various procedural fairness letters and letters rejecting Ms Hellessey's claim in the present case were not prepared in precisely the same circumstances as the letter the subject of Leeming JA's observations, but they were all prepared in circumstances that justify the inference that great care was taken to justify the reasoning process, in the apparent expectation that the letters would be subject to close scrutiny by the Trustee, Ms Hellessey and the court. The third rejection was prepared in circumstances that were almost identical to the letter considered by Leeming JA.
In my view, MetLife is correct in so far as it submitted that the court should not treat a letter written by an insurer rejecting a claim for TPD benefit as if it were a judgment of a court under appeal. However, if the circumstances appear to 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. Given the seriousness of the matter to the claimant, there is a real question as to whether the experienced claims assessor will be any less diligent or capable than a trial judge called upon to make the same determination as the insurer.
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 is not helpful in this area to draw analogies with the operation of juries. The reason that the court does not interfere with the decision of the insurer unless there has been a breach of the duty of good faith and fair dealing, usually because the decision-making process is unreasonable, is a consequence of the wording of the insurance contract. It has little to do with the division of function between the court and the jury in a jury trial. Furthermore, if the "top-down" approach suggested by MetLife were adopted the consequence would often be that the court's consideration of the insurer's decision-making would be superficial. The decision would be judged on the appearance of reasonableness rather than actual reasonableness. That approach would not be consistent with the need to determine whether or not in fact the insurer had breached its duty.
Quite apart from my own decision in Wheeler (above), 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: see for example Ziogos v FSS Trustee Corporation [2015] NSWSC 1385 at [90]-[104] (Ball J) and Mehmet v IOOF Investment Management Ltd (above) at [53]-[85] (Stevenson J).

[13]

When will the insurer have constructively rejected the claim?

The present case raises the question of when the insurer will be taken to have breached its duty of utmost good faith by failing to make a determination as to whether or not it is satisfied that the claimant's circumstances satisfy the TPD definition, so that the insurer will be treated as being in the same position as if it had made a determination in a manner that breached its duty. The insurer may simply fail to make a determination notwithstanding the elapse of a long period after receiving the application for the TPD benefit, or it may fail to do so notwithstanding the course of correspondence with the Trustee or the claimant. It is customary to refer to the consequences of an unjustifiable delay on the part of the insurer in making a determination of the claim as a "constructive denial" or "constructive rejection" of the claim, although these descriptions are not entirely apt.
In Shuetrim v FSS Trustee Corporation (above), which was a case in which the claimant alleged constructive rejection after a course of correspondence between the claimant and the insurer during which the parties engaged in argument about what was required of the claimant before the insurer could be expected to make a determination, Stevenson J determined the question by asking at [153] whether the manner in which the insurers dealt with the claim up to the time when they actually made a decision was itself a breach of their duty of good faith and fair dealing. I respectfully agree with his Honour and will apply that approach in dealing with Ms Hellessey's claims that MetLife constructively rejected her claim on two occasions.
I also agree with the observation made by Stevenson J at [169] that the obligations of good faith and fair dealing are bilateral (in the sense that I have mentioned above where the claimant is the de facto proxy of the actual insured for the purpose of prosecuting the claim).
It may be in a particular case, where the most significant factor is simple delay on the part of the insurer in making a determination, that it will be appropriate to focus on the issue of the reasonableness of the insurer's conduct (which is of course an aspect of the duty of good faith).

[14]

Why can the court decide whether the claimant is TPD?

TAL v Shuetrim establishes that, if in determining its own satisfaction as to whether the circumstances of the claimant satisfied the TPD definition the insurer breaches its duty of utmost good faith, such as by failing to determine the claim in a reasonable way, the court has power to determine for itself on the evidence presented at the trial whether or not the claimant is entitled to the benefit claimed because the TPD definition (absent the requirement for the insurer's satisfaction) is satisfied: see [169]-[188].
MetLife made a formal submission that this statement of principle by the Court of Appeal is wrong, but accepted that I must apply it in this case. There is accordingly no need for the court to enter upon any detailed consideration of the principles that underlie the power of the court to determine itself whether the TPD definition has been satisfied. It is necessary, however, to give some little attention to the question for the purpose of the consideration of the next legal question that requires my attention.
There is no apparent problem in accepting that part of McClelland J's judgment in Edwards v Hunter Valley Co-Op Dairy Co Ltd (above) in which his Honour held that an insurer cannot rely upon non-fulfilment of a condition of its own liability if fulfilment was prevented by its own default. That condition is the formation of its own satisfaction that the claimant has established the TPD definition. McClelland J relied upon the decision of the New Zealand Court of Appeal in Butcher v Port [1985] 1 NZLR 491, in which Cooke J had relied upon the decision of the House of Lords in New Zealand Shipping Company v Societe des Ateliers et Chantiers de France [1919] AC 1, which in turn was accepted by the High Court in Suttor v Gundowda (1950) 81 CLR 418; [1950] HCA 35. The problem lay in the conclusion expressed by McClelland J that if the insurer was precluded from relying upon the condition then the court could determine for itself on the evidence whether the TPD definition was satisfied.
The difficulty was addressed by McPherson JA in McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197; [2001] QCA 317, and further considered by Basten JA in Birdsall v Motor Traders Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412; [2015] NSWCA 104 at [25] and [26]. The problem is that if the claimant's right to the TPD benefit depends upon the insurer forming a satisfaction that the requirements of the TPD definition have been established, the effect of the court setting aside a determination to reject the claim on the basis of some error will have the effect that no decision has been made, so the condition that must be established for the right to the benefit to exist will not be satisfied. A rule that the court may decide the question if the insurer's own determination is vitiated appears to be an unwarranted alteration to the terms of the contract.
I observe in passing that this difficulty appears to arise because the insuring clause has been construed as creating a unitary conditional right with the effect that the claimant has no entitlement unless the insurer forms the satisfaction required by the wording of the TPD definition. If that is the true description of the right, if the condition is not satisfied the right does not exist. It may not be unreasonable to construe the insuring clause as having the effect (a) of giving the claimant a right to a benefit if the required consequences of the incapacity are established, but (b) granting the insurer the right to decide based upon its own satisfaction whether the consequences exist, and (c) making the entitlement to the benefit conditional upon the insurer being so satisfied. If the insuring clause were construed in that way, and the insurer's breach of duty disabled it from insisting upon the condition in (b) and (c), the claimant's right in (a) could be determined by the court without any apparent rewriting of the contract.
If one takes the insuring clause in the present case in the Blue Ribbon policy as an example, cl 3 provided: "If an Insured Member … suffers from TPD while this policy is in force … we will pay to the policy owner the Sum Insured in respect of that member…" At least in form, this is a promise to pay the benefit if the claimant suffers from TPD. In the case of the physical injuries referred to in pars (a) and (c) of the TPD definition, the benefits will be payable if the physical consequences described in the paragraphs occur. The position is different in the case of par (b) and made complicated by the fact that the words "and having provided proof to our satisfaction that…" have been inserted into the middle of the description of the circumstances that are intended to entitle the claimant to the benefit. It is true that this structure of the paragraph may be construed as creating a unitary conditional right that cannot exist unless the insurer forms the requisite satisfaction. I suggest that it would not be too difficult an alternative construction to accept that the TPD definition in par (b) has the tripartite effect referred to in the preceding paragraph. Such a construction would remain consistent with Leeming JA's first proposition in TAL v Shuetrim at [60] that the clause "is expressed to turn upon the state of mind of the insurer".
Be this as it may, Leeming JA resolved the difficulties at pars [168]-[188], which appear to have the effect that the rule established by long-standing precedent should be accepted, even though that may not give "unchallenged supremacy to the terms of the contract between the insurer and the insured": see [183]. The ultimate criterion appears to be that stated at [184]: "… The solution adopted by the substantial body of appellate decisions is a sensible way to deal with the need to resolve such disputes in a way which is fair to the insured and insurer". The result appears to be that there is a substantive rule of law that when in this context the court finds that the condition of the insurer's liability, being the formation of its own satisfaction that the TPD definition has been established, is vitiated by reason of some error by the insurer, the court has the power to determine whether the TPD definition is satisfied for itself. This result appears to be put on the basis that it is a fair way of dealing with a breach of the insurer's duty of utmost good faith and fair dealing.

[15]

What is the effect of the insurer agreeing to reconsider the claim?

This brings me to the next legal issue, which is: what principles should apply when an insured requests the insurer to reconsider a rejection of a TPD claim and the insurer agrees to do so? In particular, in what circumstances should the insured lose the right to challenge the validity of the initial rejection when the insurer agrees to undertake a reconsideration?
Where the insurer first rejects a claim for a TPD benefit, the question of whether that rejection is vitiated by any breach of duty by the insurer will be unsettled unless determined by a court. The question will be open at the time the insured requests the insurer to undertake a reconsideration. If in fact there was some breach of duty by the insurer, it will involve a breach of the contract of insurance. However, the objective of the insured is to gain the benefit. The insured does not usually pursue a claim for damages for breach of contract by the insurer, which would probably take the form of a claim for damages for a lost opportunity that if the insurer had made the determination properly it would have been satisfied that the TPD benefit was payable (see Basten JA in Birdsall (above) at [25]). Nor does the insured seek to terminate the contract of insurance for breach, because then the only available remedy would be damages.
Consequently, the principles of law that govern the possible responses of one party to a contract to a breach by the other, such as affirmation, will not be directly relevant. Instead, the insured wishes to keep the contract of insurance on foot but for the insurer to make a new determination on some basis.
It seems to me that in this context the circumstances may justify a conclusion that the parties have entered into a formal contractual compromise of a dispute as to whether or not the insurer's determination was binding, but there may be cases where it is difficult to find that the formal requirements of contractual creation have been established, even on an implied basis.
In that case, in my view, much as Stevenson J found in Shuetrim v FSS Trustee Corporation (as discussed above), the consequences of the parties embarking upon a reconsideration of an initial determination by the insurer should be determined on the basis that both parties are bound by duties of utmost good faith and fair dealing in respect of the other. The question will be in such cases whether it remains available for the insured to claim in good faith that the initial rejection should be set aside so that the court can determine the insured's entitlement to the TPD benefit, after the insured has requested and the insurer has agreed to reconsider the determination.
How these principles should be applied will depend upon the facts of each case. It may often be the case that, once the insurer has agreed to reconsider a rejection, and has embarked upon and incurred the trouble and cost of doing so, it will be found not to be an act of good faith or fair dealing for the insured still to seek to set aside the rejection. However, it will be necessary for the court to consider the facts of the case, as experience shows that sometimes the insured asks for a straightforward reconsideration on the basis of the existing evidence, and submissions that the insurer has made errors in reasoning, and then after the insurer has agreed to a request for a reconsideration, the insurer embarks upon further enquiries that may reinforce its original rejection, without the acquiescence of the insured.

[16]

What is the significance of the words "unlikely ever"?

This case raises acutely the meaning and effect of the words "unlikely ever" in the TPD definition. MetLife pleaded in par 12(c) of its defence that as at the assessment date Ms Hellessey was 34 years of age and could reasonably be expected to have a further 31 years of working life.
Authoritative guidance has been given concerning the effect of the expression "unlikely ever" by the Court of Appeal in TAL v Shuetrim at [88]-[91]. I have considered the effect of that decision in Wheeler (above) at [69]-[96]. I remain of the view expressed in that judgment.
In Ziogos v FSS Trustee Corporation (above) Ball J made the following observation at [102]: In my opinion, Mr Anderson applied the wrong test when expressing the view that he did, as did MetLife to the extent that it relied on Ms Ziogos's age. Mr Anderson's position appears to be that Ms Ziogos should not be given up on and that with treatment she should be able to return to work. But these opinions do not appear to relate to any specific attributes of Ms Ziogos and her symptoms. Rather, they are expressions of general hope and expectation that could be stated in relation to anyone suffering from PTSD. Or, to put the point another way, they are statements about what may be possible not statements about what was likely or unlikely given the particular circumstances of Ms Ziogos and the way that she had responded to treatment in the past. In my opinion, it was unreasonable for MetLife to rely on Mr Anderson's report unless it took some steps to understand why Mr Anderson believed that she would respond to treatment (or expressed in terms of the requirements of the Policies, not unlikely that she would not respond to treatment) when she had not responded to treatment in the past and not all people who suffer from PTSD respond to treatment. Similarly, although Ms Ziogos's age may be a relevant factor when taken together with others, to the extent that MetLife formed the view that at some time Ms Ziogos would be able to return to work because she had so many working years left of her life, it was confusing what was possible with what was likely and unlikely.
Commenting on this aspect of Ball J's decision, Brereton J in Jones v United Super Pty Ltd (above) said: [59] However, it is now established that the relative youth of a claimant is relevant, and that a young claimant will find it more difficult to establish total and permanent disability than a more elderly one, as Leeming JA explained in Shuetrim: Relatively young people whose medical or psychological condition is uncertain will find it harder to prove to an insurer's or a court's satisfaction that they are unlikely ever to return to work for which they are reasonably fitted by education, training or experience.
Although Brereton J's observation may appear to suggest that the decision of the Court of Appeal in TAL v Shuetrim casts some doubt on the validity of the conclusions expressed by Ball J, I am respectfully of the view that Ball J was correct and I adopt his conclusions.
It can never be rational to conclude that a particular event will happen if nothing more is known than the time available for it to happen in. Knowing that a particular claimant has a nominal working life of 31 years after the assessment date is of no assistance by itself in determining whether or not the claimant is unlikely ever to engage in the relevant employment. It is necessary to know the conditions that need to occur before the event will happen, and to understand the circumstances that may cause the conditions to occur, in order to evaluate the probability that they will occur in any given time, whether short or long.
The statement made by Leeming JA that is set out in Brereton J's judgment in Jones is a statement of a consequence that may often occur and not a statement of a rule. I respectfully suggest that it was not intended by his Honour to be the starting point of any consideration of whether a particular claimant has satisfied the TPD definition. It is more an observation that if one were to canvass a large number of TPD determinations in respect of different claimants, one would find that a greater proportion of young people whose medical or psychological condition is uncertain will have failed to satisfy the insurers involved. Logically there could be no contest with the proposition seen in that light. It should not be taken to encourage, however, insurers processing claims made by relatively young claimants to give Leeming JA's observation a substantive force that is divorced from a proper analysis of the "specific attributes of [the claimant] and [the claimant's] symptoms", to use the words of Ball J in Ziogos.

[17]

What should be done when there is psychological injury?

It is in my view essential in determining and evaluating the likely occurrence of the conditions necessary before Ms Hellessey will have the capacity to engage in relevant employment to have regard not only to her physical capacity but the psychological consequences of her injury. As Brereton J said in Jones (above): [69] 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.
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.

[18]

What are the consequences of the incapacity that must be established?

There is a significant body of first-instance decisions in this State that supports the view that the question of whether the claimant is unlikely ever to gain relevant employment requires a realistic and common sense approach to the consideration of whether the claimant will actually obtain work.
I have agreed with that approach, and set out a review of the authorities in Wheeler (above) at [76]-[80]. The source of the line of authority appears to be the judgment of Hodgson J (as his Honour then was) in Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175, which is referred to in [77] of my judgment. Hodgson J appears at 78,000 to require a consideration of "the actual likelihood of [the claimant's] being able to obtain employment".
This approach has recently been endorsed by Boddice J in Gomez v Board of Trustees of the State Public Superannuation Scheme [2017] QSC 98 at [24], where his Honour cited Wheeler at [76]. He also referred to Jones (above) in the same paragraph of his judgment.
The significance of this observation is that in Jones at [63]-[67], Brereton J noted three decisions of intermediate courts of appeal that he suggested appear to support a construction of the TPD definition that is inconsistent with the approach that has been established in this State: see Repatriation Commission v Hill (2005) 142 FCR 88; [2005] FCAFC 7 at [57]-[58]; Wells v Australian Aviation Underwriting Pool [2004] QCA 43 at [17] and Hannover Life Re of Australasia Ltd v Colella (2014) 47 VR 1; [2014] VSCA 205 at [30]-[37]. It is sufficient for present purposes to note the observation of Garde AJA in the last-mentioned case at [37] that: "The trial judge's definition of TPD did include a gloss on the definition contained in cl 1.3 of the policy in so far as it included the requirement that the work be reasonably available in the marketplace and in an area in which it could be expected that an insured in the position of the claimant could reasonably apply". His Honour said that "this went too far". Earlier, at [34] his Honour had said: "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".
Brereton J in Jones noted at [67] that courts in this State have not so far adopted this more restrictive approach, and referred to Wheeler (above) at [74]-[80]. His Honour also observed at [67]: … 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.
I would respectfully add that the more restrictive approach would exclude a finding of TPD not only where there were relevant jobs on the other side of the country, but where there was only one such job, which was already occupied, with a long waiting list of job seekers with greater capacity and hence employability than the claimant for the TPD benefit.
It must be acknowledged that the approach that has been followed in this State involves theoretical problems in determining what should be the criteria for an actual, or real possibility of employment in a particular case, but those problems have not apparently to date caused insuperable difficulty.
While it appears that courts in this State have not taken into consideration the cases identified by Brereton J, including my own decision in Wheeler, the line of authority in this State was also not considered in those cases.
The apparent inconsistency between these lines of authority may perhaps be resolved by looking at the wording of the provisions considered in the cases identified by Brereton J. Repatriation Commission v Hill was concerned with the interpretation of a statutory provision that provided an entitlement for a pension if a person "is permanently incapacitated for work in accordance with a determination" (see [7]). According to the relevant determination, a person was permanently incapacitated if "the person is permanently unable to do work for [certain] periods" (see [10]). The relevant criterion was a permanent inability to do work. In Wells v Australian Aviation Underwriting Pool, the TPD definition included "is beyond hope of improvement and which would prevent the Insured Person engaging in each and every occupation or employment for wage or profit for which he or she is reasonably qualified by training, education or experience": (see [4]). Again, the focus of the wording is on actual incapacity. Finally, in Hannover Life Re of Australasia Ltd v Colella, the TPD definition required: "they continue to be so disabled that he or she is in our opinion unable to resume their previous occupation at any time in the future and will be unable at any time in the future to perform any Other Occupation" (as defined) (see [14]). This definition is also different to the TPD definition in the present case. Read literally it deals with an inability to resume previous employment at any time in the future and an inability to perform any other occupation.
I would respectfully suggest that if the wording in the TPD definition in the policies in this case ("has become incapacitated to such an extent as to render the Insured Member unlikely ever to engage in any gainful profession, trade or occupation") is read as a composite expression, the better construction is that the definition covers incapacitated claimants who have no actual or real possibility of employment. In this case it is necessary (a) that the claimant has become incapacitated; but it is also necessary (b) that the claimant is unlikely ever to gain relevant employment. The second requirement goes further than objective incapacity to undertake employment. It introduces an element of probability, and it seems to be a common sense construction of the definition that the probability intended was an actual or real probability.
It is not necessary for me to attempt to resolve this possible inconsistency in the authorities in this case, as the issue is not whether there are no jobs available in the general area in which Ms Hellessey lives that she may be physically capable of doing, but whether her psychological injury makes her incapable of undertaking those jobs. However, it may be wise to bear in mind that practical problems may arise in applying the TPD definition, if the focus is on 'bare' physical and mental incapacity, rather than the practical effect of the relationship between the incapacity and the likelihood that the claimant will ever gain relevant employment. 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. In the present case MetLife says that Ms Hellessey is capable of gaining employment as a driving instructor or a child care worker, but one may wonder what the effect would be of Ms Hellessey disclosing that she needed to take Valium to avoid anxiety or panic attacks.

[19]

MetLife's first procedural fairness letter dated 12 April 2004

On 12 April 2014, MetLife wrote its first procedural fairness letter to Ms Hellessey. Materially, the letter said: We refer to your above claim, as you are aware we are the group disability insurer for the abovementioned fund and as such have been assessing your claim for Total and Permanent Disability. Our assessment into your claim is now at a stage where we would like to invite you to review the list of documents/materials that we have acquired during the course of our assessment process. This process enables you to become aware of all the documents/materials that MetLife will rely upon when making a recommendation and gives you the opportunity to review those documents/material where we consider there to be adverse or possible adverse information. We draw your attention to the list of documents/material, as requested by the Fund Trustee we have enclosed a copy of any adverse or possible adverse documents/material for you to review and make any submissions with respect to these documents, that you would like us to take into consideration when making a recommendation on your claim. Along with your submission, we invite you to submit any additional medical information, including medical reports, or other evidence that you believe will assist in the assessment of your claim for total and permanent disability benefit. List of documents: [Documents then listed] Your attention is drawn to the attached documents that contain possible adverse information: • Vocational Assessment report dated 21/08/2012. • Dr Barbara Hodgson, Consultation Psychiatrist report dated 20/09/2012. • Dr Barbara Hodgson, Consultation Psychiatrist report dated 03/05/2013. • Facebook Updates. • Dr Geoff Bertucan (sic), Consultant Psychiatrist report dated 30/08/2011. • Workers Compensation claim file dated 1414/03/2012. We request that you provide us within 30 days with any response you care to make on the information on your claim…

[21]

Dr Durrell's reports

I will set out the contents of Dr Durrell's reports in some detail. As I have said, he was Ms Hellessey's treating psychiatrist. He started treating Ms Hellessey on 5 October 2010 and was still treating her at the time of the hearing six years later. For more than a year before that hearing he had only conferred with Ms Hellessey by telephone. He was responsible for prescribing Ms Hellessey's medication for the whole of this period. Dr Durrell had far more exposure to Ms Hellessey's psychological injuries in a longitudinal sense than any of the other medical professionals, whether called at the hearing to give expert evidence or not. Dr Durrell did give expert evidence at the hearing.
Even though the reports by Dr Durrell considered below were first listed in MetLife's first procedural fairness letter, they were tendered at the hearing as part of Dr Durrell's expert evidence. Accordingly, setting out the principal aspects of the reports now will serve the additional purpose of detailing some of the significant expert evidence at the hearing.
The detail of Dr Durrell's reports is also significant because, as will be seen, notwithstanding that those reports were accepted by MetLife as being relevant to its determinations, MetLife gave little or no weight to Dr Durrell's opinions. That was principally because MetLife said that Dr Durrell was in a minority of one expert opinion, when counted against opinions expressed by other medical professionals. Dr Durrell's later substantive opinions were passed over by MetLife because they were not provided contemporaneously with the assessment date. I have set the contents of Dr Durrell's reports out in some detail in order to record that Dr Durrell's reports, apart from being made by the treating psychiatrist, were substantive reports that addressed the issues in detail in a reasoned way.
In his attending doctor's statement, Dr Durrell said that Ms Hellessey had first been referred to him by Dr Falk, a Goulburn GP, on 5 October 2010. Dr Durrell's diagnosis was Post-traumatic Stress Disorder (PTSD) and Major Depressive Disorder. Dr Durrell stated that he had consulted with Ms Hellessey every two to four weeks.
In response to the question: "Is the Patient improving with this treatment?" Dr Durrell responded: "The condition is not curable but the treatment partially helps symptoms". In response to a question as to whether Ms Hellessey had reached maximal medical improvement, Dr Durrell answered in the affirmative and said: "Ms Hellessey has reached maximal medical improvement and no further improvement will occur".
Dr Durrell concluded that all duties with the NSW Police Force were precluded due to exposure to triggers which accelerate Ms Hellessey's mental condition.
In his confidential medical report on permanent incapacity to the Trustee dated 21 December 2011, Dr Durrell stated his opinion in relation to the nature and effectiveness of any other treatment: "The treatments are partially helpful but her mental injuries are permanent & not curable".
Dr Durrell provided the following opinions in his medical report dated 23 December 2011: 4. In your clinical opinion, when do you consider Ms Hellessey would be able to participate and commence a return to suitable duties outside the NSWPF? When do you consider Ms Hellessey would be able to participate (i.e. job seeking, retraining possibilities) in other employment opportunities? Ms Hellessey, due to her work caused mental injuries PTSD and MDD, is totally and permanently disabled in terms of rejoining the workforce in keeping with her experience, training and education. 5. Please outline any other issues that you feel need to be addressed in order to assist Ms Hellessey to return to health and make a successful return to work. Ms Hellessey will not be capable of rejoining the workforce due to her work caused mental illness in any capacity in keeping with her education, training and experience. Ms Bernadette Hellessey's work caused psychiatric injury is Post Traumatic Stress Disorder (PTSD) - Chronic and Major Depressive Disorder (MDD) (secondary) as per DSM.IV criteria.
Dr Durrell's 1 June 2012 report was addressed to a Senior Claims Assessor at MetLife. The report noted that Ms Hellessey had been referred to Dr Durrell by Dr Falk on 27 September 2010. He gave a list of 13 consultations that he had had with Ms Hellessey.
Dr Durrell gave the following full history of Ms Hellessey's current psychiatric condition (which I will set out in full): Ms Bernadette Hellessey reported a number of physical and mental symptoms which have their origins in the days and weeks after a workplace firearm incident in the 16th November 2004 at Terrigal police station - "I was sitting in the open office at Terrigal police station and from behind me another officer (Phil) pulled out my gun and pointed it at me... he then threw the bullets from the magazine at me... I cowered and covered myself as the bullets hit me and bounced on the desk around me... I felt very fearful that a bullet may go off... I felt a whole mixture of strong feelings and shocked afterwards... he took apart the gun and left the pieces on the floor and walked out... I felt humiliated, angry, scared and then sort of numb later". Ms Hellessey reported that she felt dazed and confused about the incident for an extended period. This firearm incident occurred following a number of other mentally traumatic work experiences including her attending a triple fatal motor vehicle accidents and being involved in a stressful incident involving a man wielding a gun - "we nearly shot him... later it turned out that he was mentally impaired and that the gun was a replica... felt very shaken for a long time after this". The internal police investigation into the firearm incident with 'Phil' was stressful and resulted in prolonged and multiple forced re-exposures to the trauma memories. There are clear symptoms and signs of PTSD related to the Terrigal firearm incident including re-experiencing phenomenon, tremor, bouts of sweating, panic attacks, sleep disturbance, nightmares, avoidant symptoms, palpitations, restlessness, involuntary intrusive memories and mental images of a gun pointing at her and of bullets being thrown at her. In addition to these PTSD symptoms Ms Hellessey also described a number of secondary depressive symptoms including bouts of dysphoria, low energy, mental fatigue, low self-esteem, lowered confidence and thoughts of hopelessness. There are triggers apparent including her relapse of symptoms when confronted with persons resembling "Phil". Ms Hellessey noted that the transfer out of the area to Hay Police station assisted in reducing her PTSD symptoms for a period of time. Ms Hellessey reported that her symptoms have waxed and waned since 2004 and that in late 2007 and early 2008 - " I heard that Phil has got his job back... I felt panicky and my mind was racing... thought I was having a heart attack... feared he would want some sought of revenge". Around this time Ms Hellessey moved away from front line policing and joined the Police Academy training staff in Goulburn as a lecturer. Ms Hellessey was quite distressed during my examination of her on the 26th October 2010 and reported that "Phil" had attended the Police Academy in recent days to complete a Sergeant's course - "thank goodness I was off sick and not there... I was promised that I would be warned if he was attending the Academy... this has really rattled my confidence and just fear that I'll not really be warned in the future about him coming to the Academy". Ms Hellessey recalled, with significant levels of distress, the death of a highway patrol colleague - "Chris Thornton... he was going to pick me up for the shift... I got a call to say he was deceased... then I was placed on guard duty at a point near his crashed vehicle... from 6.00pm till 2.00am... his body being there was very stressful... seeing his body removed from the vehicle... these memories come back a lot".
Dr Durrell stated and explained his diagnosis of PTSD and Major Depressive Disorder (secondary) by saying: Ms Bernadette Hellessey expends considerable effort to avoid activities, places and people associated with her NSWPF related mental traumas. Ms Hellessey regularly experiences feelings of detachment, emotional numbing and restriction of her range of affects. Ms Hellessey exhibits persistent symptoms of hyperarousal including insomnia, irritability, poor concentration and hypervigilance. The duration of her symptoms is more than one month and her mental injury causes clinically significant impairment in social and occupational functioning … In this regard Ms Hellessey was exposed to traumatic events that involved threatened death or serious injury which are coupled with intense fear, helplessness and horror. There are persistent re-experiencing symptoms including nightmares, intrusive mental images and thoughts. Both internal and external cues trigger psychological distress. Ms Hellessey expends considerable mental effort to avoid thoughts and feelings associated with her NSWPF mental traumas.
Dr Durrell provided a detailed explanation of Ms Hellessey's medical needs saying: "Ms Hellessey will need to continue the psychotropic medications and psychotherapy…" He explained that Ms Hellessey's current regime included Zoloft 200 mg daily plus prn Valium 5 mg for breakthrough anxiety. He outlined the medication that Ms Hellessey had been prescribed at earlier times, and the side effects that had caused that medication to be changed.
As will be seen, Ms Hellessey remained on this same medication regime up to the time of the hearing, almost 4½ years after Dr Durrell's report was prepared. The issue of Ms Hellessey's continuing need for medication will be significant, as it was not considered specifically by MetLife in any of the procedural fairness or rejection letters. MetLife did not call expert psychiatric evidence at the hearing (it called an eminent psychologist). At no stage has MetLife addressed the issue of the likelihood that Ms Hellessey's psychological condition will improve to the point where she does not need medication. Nor has MetLife apparently considered the impact of Ms Hellessey's continuing need for medication on her capacity to gain relevant employment.
Dr Durrell gave the following answer to the question: "8. What is the claimant's current work capacity?" Ms Hellessey, due to her work caused mental injuries PTSD and MMD, is totally and permanently disabled in terms of rejoining the workforce in keeping with her experience, training and education. Ms Bernadette Hellessey has acute symptoms of PTSD with high levels of social phobia, avoidance, isolation, low confidence, panic attacks and there are no possibilities of external work into the foreseeable future. Ms Hellessey displays a range of quite unstable mental state features which preclude her from any return to work to the NSWPF workforce in either operational or non-operational capacity. These symptoms of PTSD and MDD are the principal barrier to her return to the workforce.
The doctor also expressed the opinion that: "Ms Hellessey will not be capable of any form of return to the NSWPF or in any employment role in keeping with her education training and experience due to her PTSD". His report contained the following: Do you consider that the claimant has become incapacitated to such an extent as to render her unlikely ever (until age 65) to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience? Unfortunately Ms Bernadette Hellessey's mental injury is permanent and generates significant levels of mood instability, phobic avoidance, irritability, low self-confidence and depressive symptoms that combine to negatively impact on her work capacity. In my psychiatric opinion Ms Hellessey is unlikely to every (sic) (until age 65 years) to engage in any gainful occupation for which she is reasonably qualified by education, training and experience.
Dr Durrell furnished a further medical report to the same Senior Claims Adviser at MetLife on 16 February 2013. Dr Durrell's report was a response to the independent medical examination undertaken by Dr Hodgson and a vocational assessment report dated August 2012.
In response to the suggestion that Ms Hellessey might be able to engage in work as a learning and development officer, a child care worker, a driving instructor, a cashier or a sales representative, Dr Durrell reported: I would respond to this vocational assessment finding as these work roles being inappropriate for Ms Hellessey as I consider her chronic and permanent work caused mental injury to be of such chronicity and severity to render her totally and permanently incapacitated from any return to the workplace. From a treating psychiatric perspective I can confirm that during my recent review of Ms Hellessey's case, on the 15th February 2013, that her PTSD symptoms remain an active and problematic part of her day to day functioning and her disabling and persistent symptoms include panic attacks and anxiety symptoms, cognitive symptoms, nocturnal problems and poor sleep, irritability and a tendency towards social isolation. Low self-esteem and low self-confidence also persist. There have been some changes to her medication in December 2012 where I initiated a trial of Seroquel 25mg 1-2 times daily as required. Ms Hellessey has required this medication regularly since December and at this stage I consider this will probably represent a long-term change in medication. This addition of Seroquel indicates a further severity of her PTSD and further confirms her poor prognosis in terms of the incapacity for any return to non-NSWPF or other workplaces. The Zoloft medication is now at 250mg daily which is providing some partial symptomatic relief. In terms of my assessment of the proposed work roles my medical evidence is that on mental state examination the active PTSD symptoms are at a level of severity and chronicity that prevent her from working due to the cognitive deficits, the emotional instability, the panic attacks, interpersonal hypersensitivity, poor sleep with limited access to restorative sleep. Her level of medication is at significant levels and includes an anxiolytics and antipsychotic which represents a poor prognostic factor. Ms Hellessey will require psychotropic medications long term. Withdrawal of treatment, medication and psychotherapy, would result in acute relapse and mental decompensation. I note the Dr Hodgson has stated from her cross-sectional assessment of Ms Hellessey that the proposed vocations identified in Mr Everett's report may appear suitable at some stage in the future. Although Dr Hodgson noted that Ms Hellessey was quite disabled by her PTSD with depressive symptoms and social phobia symptoms and in that regard Dr Hodgson suggested a reassessment in 12 months time to gauge and monitor her progress. However from a treating psychiatric perspective I have been able to gain a longitudinal assessment and appraisal of Ms Hellessey and I would note that her last active shift, in terms of being a police officer and being in the workforce, was a considerable amount of time ago, being August 2010. Ms Hellessey has been unable to work since that time to due to her PTSD and the chronicity and severity of the PTSD mental injury indicate lifelong disability with significant risks deterioration in the ageing brain period. Therefore given that Ms Hellessey has been unable to enter the force for over two years and her condition remains unstable and unsuitable for return to the workforce as noted by myself and the independent Dr Hodgson, it seems most unlikely that delaying her case for a further 12months will generate any significant changes in her work incapacity. It is also important to note that the ongoing uncertainty concerning her MetLife claim is itself a source of considerable anxiety and Ms Hellessey, due to her PTSD, has limited coping mechanisms in this regard. From a treating and longitudinal psychiatric perspective it is in her best mental health interest for her case to be resolved in the short term rather than further delays of 12 months which would also involve reassessments by independent psychiatrists, psychologists, vocational assessors and case managers which Ms Hellessey finds invasive and destabilising in terms of anticipatory anxiety and uncertainty. Therefore from a psychiatric perspective it is most therapeutic in Ms Hellessey's case to NOT to defer the claim process for a further 12 months. I hope these comments are helpful and please let me know if further information is required psychiatric information in her case.
It is relevant to note that in this report Dr Durrell advised that it was his opinion that it was in Ms Hellessey's best mental health interests for her case to be resolved in the short term rather than that there be a further delay of 12 months. The reason was that Ms Hellessey found the process to be "invasive and destabilising in terms of anticipatory anxiety and uncertainty". This may be relevant to an issue to be considered later when Ms Hellessey exaggerated her symptoms in psychometric tests carried out in mid-2016, almost 3 years after Dr Durrell's report.
It is also relevant to have regard to the opinion expressed by Dr Durrell in this report concerning the symptoms of PTSD and Major Depressive Disorder. The evidence upon which MetLife relied did not challenge the validity of Dr Durrell's description of the consequences of PTSD and Major Depressive Disorder. It did challenge Dr Durrell's opinion that at the date of the trial Ms Hellessey's psychological injuries remained chronic and would not likely resolve over the balance of her working life. But MetLife did not challenge the evidence in this case that led me on the basis of equivalent evidence in Wheeler (above) to describe the consequences of the injury in the manner that I did at [48]. I will return to this matter below, when I come to consider the material relied upon by MetLife to support its determination that it was not satisfied that Ms Hellessey had satisfied the TPD definition.
The last report made by Dr Durrell was again addressed to the same Senior Claims Assessor at MetLife and dated 29 September 2013.
It appears from Dr Durrell's report that MetLife asked the doctor to comment on Ms Hellessey's Facebook record from 3 April 2012 to 3 November 2012, including 28 pages and Facebook status updates. Ms Hellessey had been identified as having 667 current 'friends' on Facebook.
It is appropriate that Dr Durrell's response be set out at some length: … I can confirm that these contacts on Facebook do not represent real life friendships and in the main these are persons loosely and indirectly associated with Ms Hellessey through her lifelong interest in horse breeding and horse showing. It is important to note that Ms Hellessey in the setting of her chronic PTSD has lost a significant number of friendship due to her social impairments, anxiety, loss of confidence, loss of self-esteem and mood instability as part of her PTSD. Ms Hellessey estimates that she has lost in the order of 90% of her premorbid friendships and that her two close friends are longstanding friendships from her early primary schooling. I note in your request letter that a number of activities have been commented on and posted by Ms Hellessey in her Facebook page. I also note that Ms Hellessey did not provide permission for MetLife to explore her Facebook page and this does constitute a level of invasion in her private life which has a negative impact on her impaired trust and level of suspiciousness that are associated with her chronic PTSD. There is an entry on the 20th July 2012 where Ms Hellessey, in the company of Suzy Muhleison and Jackie Waugh, attended a trip to the Mounted Police Unit in Redfern. This involved a coach trip that Ms Hellessey attended with her two children. Ms Hellessey noted that two girls were "begging" her to go and that her husband was unable to attend the function. Ms Hellessey in the company of other parents and children from the Goulburn Pony Club travelled by coach to Redfern from Goulburn. At the Redfern Mounted Police Unit the children were provided with education and entertainment regarding the training of horses in preparation for their role within the Mounted Police Section. This involved the children witnessing the horses being exposed to large balls and soft objects which were thrown at the horses to enable them to be desensitised for their later duties in the Mounted Police Section. Following this the children were taken for a tour through the stables. Ms Hellessey noted that she was not exposed to a large number of NSWPF related stimuli and that her PTSD was reasonably settled on this day. Ms Hellessey noted that she used prn Valium 2.5-5mg throughout the day and this helped to medicate her anxiety symptoms. Ms Hellessey further noted that she had approximately a 1hour period outside the Redfern Mounted Police Unit in a cafe which served to assist her in managing her anxiety on this outing. A second comment listed in your request letter included an entry on the 20th July 2012 at 8:58pm. Ms Hellessey noted that her Father is part of her Facebook network and that she expressed positive feelings to assist her father in managing his anxieties about her work incapacity and general level of mental functioning. A further entry in (sic) noted on the 28th August 2012 where Ms Hellessey attended the Sydney Opera House for a 90 minute recorded recital. During this outing her 9year old daughter played the recorder. This was an important event and Ms Hellessey noted that she was surrounded by a number of support people including her husband, a niece aged 20years and also her husband's parents. Ms Hellessey noted that her husband drove the family to this event and also drove the family home from this event. Ms Hellessey noted that again she used 2.5mg of Valium on two occasions during the day to help manage her anxiety symptoms. This Valium medication proved successful in managing her anxiety. Ms Hellessey noted that she would have been unable to attend this event without the support persons present. A further entry noted on the 4th August 2012 included reference to Ms Hellessey attending the Palomino Awards Night and birthday bash. Again Ms Hellessey noted that her husband was present as a support person and also that she was surrounded by familiar persons within the Palomino Horse Society. This function was held at Windsor and Ms Hellessey and her family stayed at the Sebel suite in the Windsor area following this event. Ms Hellessey noted that she used Temazepam in the evening to assist with her sleep. A further entry on Facebook is noted from the 1st August 2012 Ms Hellessey noted that this is the date of her mother's birthday and that again in order to help her mother manage her anxieties about Ms Hellessey's mental injury and loss of functioning that these positive comments were appropriate in terms of reassuring her mother that despite her mental injuries she was managing to cope - "I didn't want mum to have a bad day on her birthday… I thought these comments could help her… I can't believe that MetLife would invade my Facebook page and not want me to make my mum's birthday a good day for her". A further Facebook entry on the 28th July 2012 comments on Ms Hellessey attending the Southern Highlands and Tablelands Regional APSB Sub Committee Show that was held at 9.00am at the Goulburn Pony Club grounds. Ms Hellessey noted that she attended this event with her support person including her husband and the key support person in terms of her horse hobby. This support person is Lorraine a 60year old maternal like figure who has been well known to Ms Hellessey since her early teenage years. Again Ms Hellessey used Valium 2.5mg on two occasions during the day to help manage her anxiety symptoms. Again Ms Hellessey noted that she would be unable to attend such an event without her husband and support person. A further reference is made about Ms Hellessey attending the Sydney International Equestrian Centre on the 18th October 2012. Ms Hellessey noted that this event took place in Horsley Park and involved the showing of Welsh ponies. Ms Hellessey noted that she co-owns eight Welsh ponies with her long-standing horse related friend Lorraine. Ms Hellessey's 6year old daughter attended. This event involved Ms Hellessey, her daughter and Lorraine sleeping in a camp out over three nights. Ms Hellessey noted that Lorraine leads her daughter throughout the show and that Ms Hellessey's sole role was to prepare the horse. Ms Hellessey noted that she has been unable to ride or lead the horses since 2005 due to her anxiety symptoms - "I just can't stand performing in front of people anymore… I haven't been able to do this since 2005… since before we went to Hay… without Lorraine this couldn't happen". Further reference is made in your request letter concerning the Royal Easter Show in 2012 and the Royal Easter Show in 2013. It is important to note that Ms Hellessey does not compete but rather remains in the background preparing the horses for the event. Ms Hellessey noted that her time preparing the horses is a good distraction away from her PTSD symptoms and that without Lorraine to lead the horses in the public arena then she would not be able to participate in the Royal Easter Show or other horsing activities. Ms Hellessey noted that her horses are ridden by Lorraine or Lorraine's son. Again Ms Hellessey noted that she used Valium as an anxiety management strategy during the Royal Easter Shows in 2012 and 2013.
MetLife apparently asked for Dr Durrell's response to five specific questions.
The first question was: 1. Do you consider that some or all of the above activities are consistent with a person whose PTSD symptoms remain an active and problematic part of her day to day functioning and her disabling and persistent symptoms include panic attacks and anxiety symptoms, cognitive symptoms, nocturnal problems and poor sleep, irritability and a tendency towards social isolation. Low self esteem and low self confidence also persist?
Dr Durrell's response to this question was: From a longitudinal treating psychiatric perspective I can confirm that Ms Hellessey's involvement with horses has been long-standing. Ms Hellessey has been involved with horses and horse related activities since the age of 5years. I can confirm that both myself and her psychologist Rodney Ward have encouraged Ms Hellessey to continue with her horse related activities as these are an important area of life functioning and provide her with activities that distract her from her PTSD and help to maintain some island of healthy social, recreational and family functioning. Her maternal roles are also benefited from her involvement with horsing as her daughters are involved in horse activities and this provides Ms Hellessey with islands of activities that allow her to boost and sustain her fragile self esteem. I can confirm that Ms Hellessey follows my psychotropic medication advice and uses small amounts of anxiolytics medication in the form of Valium and from time to time Xanax in small doses to manage her breakthrough anxiety in the setting of social events involving her long-standing interest in horse related activities. I can confirm that her PTSD symptoms do prevent her from directly being involved in showing and riding horses in public and shows settings as her PTSD disables her from doing this due to her anxiety symptoms and levels of social phobia and due to her loss of confidence. I can also confirm that her involvement in activities related to horsing are dependent on her having support persons with her. Fortunately her long-standing relationship with Lorraine who is a maternal type figure provides Ms Hellessey with the necessary support to enable her to persist with her horse related interest. It is important to note that Lorraine and her son perform the riding and showing of the horses while Ms Hellessey remains in the background. I can confirm that the Facebook entries that you have provided do not exclude or confound the diagnosis of PTSD.
I have set this response by Dr Durrell out at some length because of its relevance to a principal aspect of MetLife's defence, being its reliance upon a substantial number of Facebook posts by Ms Hellessey, which establish that Ms Hellessey attended a significant number of horse shows and horse related events, and made Facebook posts concerning her interest in those events. It appears from the terms of Dr Durrell's response that he questioned Ms Hellessey on these matters and related her responses to him. Importantly, the terms of Dr Durrell's response clearly show that he was aware of Ms Hellessey's involvement in horse-related matters, and of her Facebook posts in relation to them. Dr Durrell expressly endorsed this aspect of Ms Hellessey's social interactions on the basis that it was beneficial for the relief of her psychological symptoms.
Dr Durrell specifically advised that the information he had been provided did not affect his PTSD diagnosis.
The second question that MetLife asked was in response to a statement made by Ms Hellessey to Dr Hodgson (who was a consultant psychiatrist retained by MetLife to provide an opinion in relation to Ms Hellessey's condition). Ms Hellessey had said that she wants nothing at all to do with the police. In essence the question was whether this information was consistent with the trip on 20 July 2012 with friends and the Goulburn Pony Club to the Mounted Police Unit. Dr Durrell gave an explanation why he did not consider Ms Hellessey's attendance to be inconsistent with the comments made to Dr Hodgson. That explanation essentially repeated what Dr Durrell had said in his response to MetLife's initial enquiry concerning Ms Hellessey's Facebook entries.
MetLife's third question was in response to statements made by Ms Hellessey to Dr Hodgson that she avoids any social situation including ringing people on the phone and the limitations on her ability to attend horse shows. The issue was whether these statements were inconsistent with her activities at the Royal Easter Show in 2012 and 2013, that she is able to ride horses, she has some 667 Facebook 'friends', she attends numerous horse shows and would appear quite social in speaking with members of the public at these events and other events including the Palomino Awards night and birthday bash and the Sydney International Equestrian Centre.
Dr Durrell's response was: I can confirm that Ms Hellessey follows my advice as her treating psychiatrist and the advice from her psychologist to maintain as much as possible her horse related activities. Unfortunately Ms Hellessey has been unable to participate at her premorbid level and ride horses publicly since 2005 due to PTSD related anxiety. Ms Hellessey has been unable to ride, show or lead horses in shows due to her hypersensitivity of being observed by others. Ms Hellessey is only able to ride horses on her own property without the scrutiny of others or the public. Ms Hellessey requires psychotropic medications including anxiolytics and low doses of Valium in addition to her Zoloft medication which has been recently changed to Cipramil. Without the support persons and the anxiolytic medication I can confirm that it is most unlikely that Ms Hellessey would have been able to continue with her 'behind the scenes' activities at the Royal Easter Shows and other shows. I can confirm that without her husband, support person and medication she would be unable to attend the Palomino Awards night, the Opera House recital of her daughter playing the recorder or being able to attend the Sydney International Equestrian Centre. I do not consider Ms Hellessey's horse related activities to be inconsistent with her comment to Dr Hodgson.
MetLife's fourth question and Dr Durrell's response were as follows: 4. Do you consider that Ms Hellessey has become incapacitated to such an extent as to render her unlikely ever (until age 65) to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience? I can confirm from a longitudinal treating psychiatric perspective that Ms Hellessey's chronic PTSD is a permanent mental injury that is likely to render her permanently incapacitated from gainful employment in trades and occupations for which she is reasonably qualified by way of training, experience and education up until the age of 65years.
In response to MetLife's fifth request that Dr Durrell provide any other comment he wished to make, Dr Durrell said: I think it is important to note from a longitudinal treating psychiatric perspective that Ms Hellessey's longstanding lifelong interest in horse activities is vital for her to maintain. The horse related activities provides some maintenance of her maternal functioning, social functioning, and recreational functioning. Unfortunately she has required medications including Zoloft, Cipramil, Valium and Xanax in order for her to continue with these horse related activities. There are a number of important support persons including her husband and Lorraine who are essential in terms of her participation at the level that she does. In terms of her Zoloft medication over recent weeks I have identified that Ms Hellessey, despite a dose of 250mg daily, was having breakthrough anxiety and developed tolerance to this medication. A recent shift to Cipramil 20mg daily has generated some improvements in terms of her having less breakthrough anxiety and panic attacks. I can confirm that her chronic PTSD is not curable however with ongoing treatment, psychotherapy and hopefully ongoing participation in horse related activities she will be able to have some quality of life despite the permanent mental injury.
Thus, far from Ms Hellessey's horse-related activities and Facebook posts in relation to those activities being a secret activity inconsistent with the presence of the psychological injuries from which she claimed to suffer, these matters were specifically brought by MetLife to the attention of Dr Durrell, as Ms Hellessey's treating psychiatrist, and he gave positive advice to MetLife that they were not only not inconsistent with Ms Hellessey suffering from chronic PTSD, but they gave her some quality of life that was endorsed by Dr Durrell, and even then she could only engage in those activities by reason of the limited number of close support people who assisted her, and her use of anxiolytic and other medication.
It may be that if Dr Durrell's opinions were properly contested by countervailing expert psychiatric and psychological evidence, the circumstances may have justified MetLife in preferring opinions inconsistent with those of Dr Durrell. However, in my view as a matter of simple logic and fairness the opinions expressed by Dr Durrell, consistently and in a longitudinal way, required attention. They could not reasonably be ignored without being challenged in a rational way.

[22]

Mr Ward's reports

Mr Rodney Ward was Ms Hellessey's treating clinical psychologist.
Mr Ward's first report was dated 19 November 2012. Mr Ward commenced his report by noting that he had been seeing Ms Hellessey for some time for the psychological treatment of PTSD and co-morbid conditions.
Mr Ward was asked to comment on whether Ms Hellessey was capable of performing the work identified in the vocational assessment report. Mr Ward responded: Throughout my treatment with Ms Hellessey she has reported on numerous occasions difficulties with interpersonal communication / interaction in public due to her anxiety levels. Ms Hellessey has reported using safety behaviours in order not to interact with for example cashiers when visiting the supermarket, these are common 'safety behaviours' for those that suffer from social phobia. Dr Hodgson has reported Social Phobia in her report and I believe this is a secondary disorder to Ms Hellessey's diagnosis of PTSD. Ms Hellessey has a love of horses and on occasion she mentioned to me that she would love to work in a Saddlery Shop, however as much as this would be her ideal job she believed it was highly unlikely that she would be able to interact with the public. Based on what has been reported to me and my observations over time of Ms Hellessey's affective state I do not believe she would be suitable at this stage for the mentioned positions as they all involve interpersonal interaction. This is my subjective opinion and I'm not aware of an objective measure for what you are asking besides a formal diagnosis of Social Phobia as suggested by Dr Hodgson and myself.
When asked to comment on Dr Hodgson's report in collaboration with the recommendations in the vocational assessment report, Mr Ward said: As one of Ms Hellessey treatment providers and considering her age I would like to remain optimistic on her behalf and see her working towards meaningful employment. Ms Hellessey has a pleasant disposition and at one stage in her life she functioning (sic) well and meeting her age milestones, however at this current point in time I do not see her being capable of employment on any level.
Thus, Mr Ward stated his opinion that Ms Hellessey was not currently capable of any employment, but said he "would like to remain optimistic" for her future capacity to work in one of the identified occupations.
In response to a question as to whether he would consider deferring the claim process for a period of 12 months to gauge and monitor progress in treatment, Mr Ward said: I would agree with a 12 month respite before consideration regarding part or full-time work. The last time I met with Ms Hellessey she was very symptomatic with high baseline anxiety and a lot of avoidance behaviours.
Mr Ward took therefore a different view to Dr Durrell on the issue of whether it was appropriate for MetLife to defer a final determination for 12 months.
Mr Ward's second report was prepared on 7 May 2013.
Mr Ward was apparently asked a question as to whether "the above activities are consistent with the person who reported on numerous occasions difficulties with interpersonal communication and interaction in public due to her anxiety levels". I infer that the "above activities" were the same as in the questions asked of Dr Durrell. Mr Ward said: I find this a difficult question to answer without knowing the context of the outings or activities that Ms Hellessey is purportedly participating in. Ms Hellessey has reported to me on numerous occasions that if she does participate in social activities she has 'safety behaviours' in which enable her to get through an activity provided that she is carrying out the safety behaviour. There is numerous research regarding social anxiety / phobia in which safety behaviours are referenced.
The second question asked for Mr Ward's view as to whether Ms Hellessey's comment to Dr Hodgson that she wanted nothing at all to do with the police was inconsistent with her attendance at the Mounted Police Unit. Mr Ward said: Once again not knowing the context surrounding this visit to the Mounted Police and the capacity for safety behaviours makes it difficult to comment on this question. Ms Hellessey has commented to me on numerous occasions that Police related insignia can be a specific trigger to her trauma related symptoms and arousal response.
The third question put to Mr Ward sought a similar opinion from him concerning the possibility of inconsistency between statements made by Ms Hellessey to Dr Hodgson and the evidence of her attending the Royal Easter Show in 2012 and 2013, and her other activities relating to horses, and the fact that she had some 667 Facebook 'friends'. Mr Ward said: Ms Hellessey has stated to me in the past that she does feel more comfortable with horse people as they have a common interest in horses and she does not feel pressured when speaking with them. Ms Hellessey has attended the Royal Easter Show all through our therapy; I do not consider this behaviour inconsistent with social phobia, as she appears to be in her comfort zone somewhat at this event.
The fourth question asked of Mr Ward and his response were as follows: 4. Do you consider that Ms Hellessey has become incapacitated to such an extent as to render her unlikely ever (until age 65) to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience? Ms Hellessey consistently presents to her appointments in a highly aroused / anxious state. Her breathing rate is often high and we need to conduct arousal management strategies such as breathing exercises early in our sessions so her baseline anxiety levels decrease. Since I have been seeing Ms Hellessey (14.03.2011), she has continually presented and reported high anxiety as a result of her Post Traumatic Stress Disorder. Ms Hellessey is treated using pharmacotherapy by Dr Anthony Durrell (Forensic Psychiatrist). As a result of Ms Hellessey's age I like to remain optimistic that she could possibly work again in the future, however due to the lack of progress with her at affective state and intrusiveness regarding traumatic memories I do not believe that Ms Hellessey is fit to work.
In much the same way as did Dr Durrell, Mr Ward advised that he was aware of Ms Hellessey's horse related activities and that she was able to engage in them by reason of 'safety behaviours' and her medication. In particular, he advised that he did not think that Ms Hellessey's behaviour was inconsistent with social phobia. Mr Ward reported relatively severe current symptoms of Ms Hellessey's psychological injuries. In relation to her prognosis for future employment, given Ms Hellessey's age, Mr Ward said no more than he liked to "remain optimistic".

[25]

Dr Hodgson's reports

MetLife referred Ms Hellessey to Dr Barbara Joy Hodgson, consultant psychiatrist, for assessment and report. Dr Hodgson prepared a report dated 20 September 2012.
After recording Ms Hellessey's description of herself as having been diagnosed with PTSD and with social phobia, and the consequences of her social phobia, Dr Hodgson recorded: … She does attend horse shows. Though she used to enjoy showing and riding herself she has withdrawn from this and usually gets either a close friend or her children to ride the horses. She notices that she does not like to be alone at all and her mother or children are often in attendance. She can have numbing and dissociative symptoms like watching herself from outside her own body and feeling quite "cut off." Ms Hellessey wants nothing at all to do with the police. She does not even wash her husband's work uniforms - her mother does this - and there are no graduation photos or any reminders of the police on the walls of their home. She will often call her husband or take somebody with her to the bank which is on the grounds of the police academy.
In relation to Ms Hellessey's lifestyle, Dr Hodgson recorded: Ms Hellessey's normal day would (sic) getting her children up and off to school. She feeds her eight show horses and then works them. Her mother is generally around (Her mother lives in a granny flat on the property) and she does not like to be alone. She looks after the other animals on their 25 acres and does cleaning and household chores.
The operative part of Dr Hodgson's report was as follows: 5. Treatment Efficiency: • What forms of treatments do you currently recommend, and what is your opinion regarding the efficacy of the claimant's current treatment regimen?… Ms Hellessey is appropriately receiving antidepressants and (as necessary) anxiolytic medication as well as ongoing psychological therapy. 6. Motivation: • Is the claimant motivated to attempt a return to her usual occupational work on a full time or part time basis? Due to Ms Hellessey's ongoing psychological distress and disabling symptoms she is not motivated to attempt to return to her usual occupational work on a full-time or part-time basis. This would seem entirely reasonable in the circumstances. • If lack of motivation is a problem, is it attributable to clinical symptomatology, or are non-clinical/medical issues a factor? In my opinion this lack of motivation is attributable to her significant clinical symptoms and there are no other non-clinical/medical issues involved as factors. 7. Secondary Gain: • Are secondary gains (either from Disability Benefits or from any other factor or circumstance) playing a role in perpetuating the claimant's current presentation, and is it undermining her ability and/or willingness to return to gainful employment on a full time or part time basis? Ms Hellessey, on today's interview, appeared a genuine and sincere historian and I do not believe that secondary gain is playing a role in her current presentation. 8. Work Related Abilities and Limitations: • Please kindly have the claimant describe her duties in her previous roles. In light of this information, please advise whether or not you consider the role as a sedentary type of work in nature and whether or not the claimant is currently medically fit to do this type of work on a part-time and full-time basis. In my opinion Ms Hellessey is not currently medically fit to do any duties of a sedentary or non-sedentary nature on either a part-time or full-time basis. • Is there any condition or illness currently present which would render the claimant partially or totally incapable of meeting the duties and responsibilities required by her usual full time occupational work as a police officer? Please explain. Her post-traumatic stress disorder renders her totally incapable of meeting the duties and responsibilities of a police officer. • If the claimant is presently able to work in some capacity but with limitations or restrictions, please specify the degree and type of limitations you would place on her, and also provide the basis for these limitations. In my opinion Ms Hellessey is not able to work in any capacity due to the severity of her symptoms. … 9. Prognosis: • If the claimant is not currently able to return to work in a full time or part time capacity, what is your prognosis regarding the claimant's prospects for recovery and eventual return to her usual occupational work as a police officer in full time (40 hours per week) capacity? In my opinion Ms Hellessey is not able to return to work with the NSW Police Force. Her prognosis, due to the probability of being re-traumatised, is poor regarding prospect for recovery and eventual return to her usual occupational work as a police officer in any capacity. • If it is your medical opinion that there is no possibility for the claimant to return to work to her usual occupation what type of work is suitable for Ms Hellessey in view of her education, training, experience and current condition? This question is currently not applicable. • Do you consider that the claimant has become incapacitated to such an extent as to render her unlikely ever (until age 65) to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience? Ms Hellessey is currently quite disabled by her PTSD symptoms, from which she has suffered since late 2004. PTSD is often a chronic condition with exacerbations of symptoms and distress, and individuals, with professional and personal help and support, can learn to manage their recovery. Ms Hellessey may experience symptoms for some time to come, but she is well engaged with support form (sic) her psychiatrist, psychologist and general practitioner, she has excellent family support and she has her interest in horses and animals. These are all strengths which will hopefully aid in her eventual recovery. I am of the opinion that she may, with time, be able to work in some fulfilling capacity related to her education, experience and training.
Dr Hodgson was satisfied that Ms Hellessey was not motivated by secondary gain. She was aware that Ms Hellessey attended horse shows. She was satisfied that Ms Hellessey was currently incapacitated from engaging in any employment. Her final observation concerning Ms Hellessey's prognosis referred to the fact that PTSD was often a chronic condition, but having regard to the level of support that Ms Hellessey had, Dr Hodgson stated that she "may, with time, be able to work". It is not clear how the word "may", which is one that connotes a possibility, was intended to relate to the question which asked for an opinion concerning a probability, or likelihood.
Dr Hodgson provided a supplementary report to MetLife on 3 May 2013. Dr Hodgson was asked a question concerning Ms Hellessey's Facebook update pages and gave her response as follows: 1. Do you consider that some or all of the above activities are consistent with a person who appears to suffer from social phobia and is quite disabled by her PTSD and depressive symptoms? In my opinion individuals suffering from social phobia, anxiety conditions and depression experience variability in the intensity and distress that their symptoms cause, particularly in earlier stages of recovery. Ms Hellessey may appear happy in her Facebook postings, but I am unable to give a professional independent opinion as I am doubtful whether or not credence can be given to Facebook comments and photos. These may not have been independently verified and they may not be reflective or indicative of her usual status. However, according to the Facebook pages that you have provided, it would appear there are inconsistencies with the history taken compared with the opinion I offered in September 2012, after Ms Hellessey's interview and review of the professional records. However as previously noted I am unable to give a professional independent medical opinion as I am doubtful whether or not credence can be given to Facebook comments and photos. These may not have been independently verified and they may not be reflective or indicative of her usual status. In the light of the above I would suggest a reassessment of Ms Hellessey, with the Facebook pages, and any other recent professional documentation. [Dr Hodgson made the same response to questions 2 and 3, which sought her comments concerning the evidence of Ms Hellessey's trip with the Goulburn Pony Club to the Mounted Police Unit and to the Royal Easter Show in 2012 and 2013, her ability to ride horses, her 667 Facebook 'friends', and her attendance at numerous horse shows]. 4. Do you consider that Ms Hellessey has become incapacitated to such an extent as to render her unlikely ever (until age 65) to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience? As stated in my original report I do not consider that Ms Hellessey has become incapacitated to such an extent as to render her unlikely ever to engage in any gainful professional, trade or occupation for which she is reasonably qualified by reason of education, training or experience. 5. Any other comments you wish to make. I reiterate that in my opinion Ms Hellessey should be reassessed with the Facebook pages and any other more recent professional documentation.
Dr Hodgson clearly informed MetLife that it was doubtful whether or not credence could be given to the Facebook comments and photos, as they might not be reflective or even indicative of Ms Hellessey's usual status.
The doctor acknowledged the possibility that the new assumptions given to her may have been inconsistent to some extent with the history previously given by Ms Hellessey, but she advised that a reassessment of Ms Hellessey should take place, and repeated that advice as the last statement she made in her report.
MetLife did not accept Dr Hodgson's advice that a reassessment of Ms Hellessey should take place, and did not arrange for a further examination of Ms Hellessey by the doctor.
Dr Hodgson appears in her answer to question 4 to have given a more definite response than the equivalent response in her earlier report after her examination of Ms Hellessey. As the later report did not involve a new examination of Ms Hellessey, it is not clear why Dr Hodgson has changed her position, and no explanation was given by the doctor.
MetLife did not call Dr Hodgson to give expert evidence at the hearing. MetLife did not call any expert psychiatric evidence at the hearing. Instead it called expert evidence from a psychologist. No explanation was given as to why Dr Hodgson was not called. I have not relied upon Dr Hodgson's reports as providing expert evidence. They are, however, relevant in so far as they provided advice, information and suggestions to MetLife as part of its process of determining Ms Hellessey's claim.

[26]

Dr Bertucen's report

Dr Jeff Bertucen, consultant psychiatrist, provided a report to the NSW Police Force on 30 August 2011. Dr Bertucen agreed with Dr Durrell's diagnosis that Ms Hellessey had PTSD. He advised in response to the terms of a proposed return to work plan that Ms Hellessey: "is totally unable to engage with them at any stage owing to the severity of her psychological symptoms". Dr Bertucen elaborated his reasons why he thought that Ms Hellessey would never be able to return to police work. His report included the following: 7. Does the officer have a capacity to work external to the NSWPF? If yes, please state timeframes to return to work and restrictions. Ms Hellessey may well be able to recover to the extent that she is able to return to some form of work which is not related to police work in any way, however, not at present. She may be capable of returning to some sort of work within six to twelve months after her medical discharge from the NSW Police Force. … 8. Should you consider the officer to have a total and permanent disablement, is the condition of such an extent as to render the member unlikely to ever engage in any gainful profession, trade or occupation in the future? In my opinion, Ms Hellessey is totally and permanently disabled with respect to engaging in any gainful profession, trade or occupation in the future for which she is qualified by virtue of experience, education and training. This includes all police work, security work, private detective work, military service, fire / ambulance / rescue services, corrective services, DOCS or juvenile Justice.
In his answer to question 7, Dr Bertucen said that Ms Hellessey "may well be able to recover" and that she "may be capable of returning to some sort of work" 6 to 12 months after her medical discharge. This appears to be a statement of possibility rather than probability. The response to question 8 appears to be inconsistent, in that it is a statement that Ms Hellessey satisfied the TPD definition. It may be that if one has regard to the occupations to which Dr Bertucen referred to, he had a limited understanding as to the extent of Ms Hellessey's experience, education and training. There appears to be at least an element of ambiguity in Dr Bertucen's report. The report does invite an enquiry after 12 months to confirm Ms Hellessey's level of recovery.

[27]

MetLife's internal email dated 4 September 2014

On 21 July 2014, Ms Hellessey's solicitors wrote a letter to the Trustee in response to MetLife's first procedural fairness letter. The letter relied upon aspects of Dr Durrell's, Dr Hodgson's and Mr Ward's reports, as well as the report dated 30 August 2011 of Dr Bertucen, who as just mentioned, appears to have given an opinion that Ms Hellessey satisfied the TPD definition. The solicitors also asserted that the vocational assessment report was unreliable because it did not adequately consider the nature of Ms Hellessey's debilitating illness. The solicitors said that the Facebook posts had no probative value.
Ms Hellessey tendered an email dated 4 September 2014, which was written by an officer of MetLife, Mr Neshko Stevin, who described himself as a claims assessor. The email was written to Mr Christopher Taylor, who is described in other email communications as a team leader. It appears from the email that Mr Stevin had been instructed to provide "recommendations" in response to the solicitors' response to the first procedural fairness letter.
Mr Stevin analysed the various reports that had been referred to and summarised their contents. Significantly, he advised that there was no information in Dr Durrell's 1 June 2012 report to dispute. He advised that the solicitors' argument that Dr Hodgson in her first report had only said that Ms Hellessey "may" returned to work and that it was "a valid argument" that Dr Hodgson had not stated that it was likely that she would return to work. In relation to Dr Durrell's 16 February 2013 report, Mr Stevin advised: "Dr Durrell has been seeing the claimant from start of the claimant (sic). I believe in court Dr Durrell's report will stand firmer than Dr Hodgson's report based on the duration of seeing the claimant". Mr Stevin responded to Dr Durrell's 16 February 2013 report, in which the doctor gave his response to the vocational assessment report. He advised that Ms Hellessey may be qualified to do the occupations, but then listed the symptoms of her PTSD and said: "Low self-esteem and low self-confidence also persist it may be unlikely she can hold a job". Mr Stevin noted Mr Ward's 19 November 2012 report and Mr Ward's statement that Ms Hellessey needs to adopt 'safety behaviours' when she engages in social interactions.
Mr Stevin expressed the following conclusion: Based on the above medical evidence there is a strong support for TPD. The TPD medical evidence on file outweighs the Non TPD. … I feel if the case was to go to court it would rule in favour of TPD claim as Dr Durrell is the main treater who has known the patient from date of injury. Dr Durrell strongly supports TPD.
There are a number of emails in evidence that refer to Mr Stevin as a claims assessor and in which Mr Stevin appears to have been involved in relatively administrative tasks on behalf of MetLife. I infer that Mr Stevin was a subordinate to Mr Taylor, as team leader. There is no other evidence about MetLife's administrative arrangements in relation to the determination of Ms Hellessey's TPD claim.

[28]

Processing of claim by MetLife

As Ms Hellessey has claimed that MetLife constructively denied her claim before it issued the first rejection, it is necessary to briefly consider the manner in which MetLife processed the claim.
The claim was apparently received by MetLife in January 2012 and on 18 February 2012 MetLife sent an email to the Trustee identifying the material that it required in order to consider the claim. Correspondence in evidence is limited, and it appears that thereafter MetLife took steps to obtain the information that it ultimately referred to in its first procedural fairness letter. I will assume that MetLife received the various materials that it commissioned itself shortly after the dates on which the materials were prepared.
There is evidence that as at 14 October 2013 MetLife was waiting to receive a medical report from Dr Durrell. It said in an email to the Trustee on 8 January 2014 that it had received Dr Durrell's report and was processing it. It made the same statement in an email dated 11 February 2014. The report referred to must be Dr Durrell's 29 September 2013 report. That report has been analysed above. It strongly supported Ms Hellessey's claim.
It is notable that MetLife received Mr Ward's advice in his 19 November 2012 report that it would be justified in waiting for another 12 months to assess whether Ms Hellessey had satisfied the TPD definition as at the assessment date. That period expired in about November 2013. MetLife did not obtain any further report from Mr Ward or Dr Hodgson. The only additional report it received was Dr Durrell's 29 September 2013 report.
MetLife then issued its first procedural fairness letter on 17 April 2014. On 8 May 2014 the Trustee responded to that letter. Ms Hellessey's solicitors sent their own response to the Trustee on 21 July 2014, and on 31 July 2014 that response was passed on to MetLife.
There is no correspondence from the Trustee or Ms Hellessey to MetLife in evidence in which either complained that MetLife had been too slow in processing Ms Hellessey's claim, or putting MetLife on notice that if it did not make a determination by a particular date MetLife would be treated as having constructively denied the claim.

[30]

Treatment of Dr Falk's reports

First, MetLife dealt with the report that Dr Falk gave to Allianz TMF on 10 March 2011. Relevantly, MetLife noted: Dr Falk however considered that the Member was fit for employment external to the Police.
Dr Falk's report was made some 3½ years before the date of MetLife's letter. MetLife did not refer to the fact that Dr Falk's responses were made by means of brief hand written statements in the spaces provided in a two-page letter that asked five questions. The primary focus of the questions was whether Ms Hellessey was fit to continue with an operational role with the NSW Police Force, and if she was not whether Dr Falk supported her medical retirement. It appears that the opinion upon which MetLife relied related to question 5 expressed as: "Is Ms Hellessey currently fit for employment external to NSW Police Force? If no please advise timeframe to [illegible] and whether you support a referral to an external rehabilitation provider for job seeking vocational assessment". Dr Falk simply answered "yes".
As I have noted above, MetLife's 17 April 2014 procedural fairness letter listed Dr Falk's 19 October 2011 medical report and not his 10 March 2011 report. However, inexplicably, the 22 December 2014 letter rejecting the claim reversed the position and listed and summarised the 10 March 2011 response to Allianz TMF and not the 19 October 2011 letter. It is clear from the two letters that MetLife had both responses.
As I have also noted above, in Dr Falk's 19 October 2011 report, he did not either tick or cross questions asked in relation to Ms Hellessey's possible employment in other than her normal occupation. Dr Falk did not strictly provide any opinion on this issue. Instead he said: "May if improves be able to work in some capacity - certainly not in next 6-12 months". Dr Falk expressed his opinion in terms that the possibility that Ms Hellessey could work in some capacity other than with the Police Force was contingent on her improving. Dr Falk expressed the definite opinion that she would not be able to do so in the next 6 to 12 months.
Consequently, while MetLife correctly summarised the statement made by Dr Falk in his 10 March 2011 response, it entirely omitted to refer to his later opinion. The letter was therefore wrong in so far as MetLife could not reasonably rely upon any statement made by Dr Falk without asking him whether his opinion had changed as a result of being satisfied that Ms Hellessey had sufficiently improved.

[31]

Treatment of Mr Ward's reports

MetLife then summarised aspects of the reports by Mr Ward. As to the 18 May 2011 report, MetLife stated: … Mr Ward was of the opinion that the Member may be fit for employment external to the Police provided it "is far removed from policing", and was supportive of the vocational assessment to identify work options.
Mr Ward did support a vocational assessment. He also said that Ms Hellessey may be fit for employment external to the NSW Police Force "providing that the employment is far removed from policing". Mr Ward added, however, in his report, that he was "not sure on the timeframe".
The statement made by Mr Ward in his report cannot reasonably be construed as a positive statement of opinion that Ms Hellessey was fit for employment external to the Police Force. In using the word "may" Mr Ward allowed the possibility that she may be fit for employment far removed from policing, but he was unable to comment on the timeframe in which that may occur.
As to Mr Ward's 19 November 2012 report, MetLife correctly recorded that Mr Ward stated that he would like to remain optimistic that Ms Hellessey could work towards meaningful employment, and also that Mr Ward agreed with a 12 month respite before consideration of whether she could engage in part or full time work. MetLife omitted to record that this statement was made by Mr Ward in conjunction with the observation that the last time he met with Ms Hellessey she was very symptomatic with high baseline anxiety and a lot of avoidance behaviours.
In relation to Mr Ward's opinions, MetLife omitted to refer to Mr Ward's 7 May 2013 report. In that report Mr Ward stated: … As a result of Ms Hellessey's age I like to remain optimistic that she could possibly work again in the future, however due to the lack of progress with her affective state and intrusiveness regarding traumatic memories I do not believe Ms Hellessey is fit to work.
Mr Ward therefore expressed the view twice that he was "optimistic" that Ms Hellessey could possibly return to work. However, his final word on the subject was given in connection with the statement that she had lacked progress and was presently not fit to work.
Although Mr Ward on 19 November 2012 had agreed that the decision concerning whether she was TPD should be deferred for 12 months, he was asked by MetLife to provide his final report only about six months later. MetLife declined the claim about 18 months after Mr Ward's final report, without enquiring of him whether Ms Hellessey's capacity to work had improved.

[32]

Treatment of Dr Bertucen's report

MetLife then dealt with the report of Dr Jeff Bertucen dated 30 August 2011 and given to the NSW Police Force. The report was therefore prepared more than three years before it was relied upon by MetLife.
MetLife summarised Dr Bertucen's opinion as being: While Dr Bertucen considered the Member too psychologically unwell to contemplate discussions regarding future return to work plans, Dr Bertucen however considered the Member may be able to return to the workforce outside the Police in six to twelve months after her medical retirement.
As I have noted above when considering Dr Bertucen's report, Dr Bertucen gave the opinion in response to question 7 that Ms Hellessey "may well be able to recover" and that she "may be capable of returning to some sort of work within six to twelve months after her medical discharge from the NSW Police Force". At that stage, Dr Bertucen considered that Ms Hellessey was still too psychologically unwell to contemplate discussions regarding future return to work plans. However, as I have also noted above, in his answer to question 8, Dr Bertucen expressed the opinion: "In my opinion, Ms Hellessey is totally and permanently disabled with respect to engaging in any gainful profession, trade or occupation in the future for which she is qualified by virtue of experience, education and training". Dr Bertucen then gave an inclusive list which may suggest that he did not have a comprehensive understanding of what Ms Hellessey's experience, education and training was, as the work listed was in some respects police-like work.
At the least the opinion that Dr Bertucen intended to express was unclear. He may have given inconsistent opinions.
MetLife appears to have relied upon Dr Bertucen's statements of opinion selectively, without asking him to clarify what he meant.
In any event, the answer that Dr Bertucen gave to question 7 admitted of a possibility rather than being a definite opinion that Ms Hellessey would be fit to engage in non-police work within 6 to 12 months after her medical discharge. MetLife did not follow up Dr Bertucen to enquire what the effect on his opinion may have been if Ms Hellessey was incapable of undertaking any employment up to the time of MetLife's rejection of her claim.
It should be noted that MetLife, in its explanation of its decision, made the following observations concerning the significance of Dr Bertucen's report: Dr Bertucen considered the Member was totally and permanently disabled at the time of assessment, however he believed that the Member may well be able to recover to the extent that she is able to return to some form of work which is not related to Police work in any way. Dr Bertucen was of the opinion the Member may be capable of returning to some sort of work within the next 6 to 12 months after her medical discharge.
That is not in my view an adequate or correct understanding of Dr Bertucen's opinion. For the reason I have given above, there is an inconsistency in the opinions expressed by Dr Bertucen, that could only have been resolved by a further enquiry of the doctor. MetLife's expressed understanding of Dr Bertucen's opinion, to the effect that Ms Hellessey was totally and permanently disabled at the time but she may well recover, lacks logic, as the first opinion is inconsistent with the second.

[33]

Treatment of Dr Hodgson's reports

MetLife then dealt with the two reports of Dr Hodgson. As to Dr Hodgson's 20 September 2012 report, MetLife stated: "Dr Hodgson was hopeful that [support from her psychiatrist, psychologist and general practitioner] would aid in the Member's eventual recovery". It is true that Dr Hodgson stated: "These are all strengths which will hopefully aid in her eventual recovery. I am of the opinion that she may, with time, be able to work in some fulfilling capacity related to her education, experience and training".
In commenting on Dr Hodgson's 3 May 2013 report, MetLife said: Dr Hodgson was provided with a copy of the Member's Facebook posts and stated that the posts may not be reflective or indicative of the Member's usual status. In saying that, Dr Hodgson stated that the Facebook pages appear to be inconsistent with the history taken in September 2012. Dr Hodgson believed that a reassessment of the Member was appropriate. Dr Hodgson confirmed her original opinion that she did not consider the Member has become incapacitated to such an extent as to render her unlikely to ever engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience.
A number of observations may be made about MetLife's summary of the effect of Dr Hodgson's second report.
First, MetLife said that Dr Hodgson stated that the Facebook posts "may not be reflective or indicative of the Member's usual status". What Dr Hodgson in fact said was that she was "doubtful whether or not credence can be given to Facebook comments and photos" as they "may not have been independently verified and they may not be reflective or indicative of her usual status". Dr Hodgson added that she was "unable to give a professional independent medical opinion as I am doubtful whether or not credence can be given to Facebook comments and photos". Dr Hodgson suggested, and pointedly repeated the suggestion, that "a reassessment of Ms Hellessey, with the Facebook pages, and any other recent professional documentation" should take place.
I take Dr Hodgson's comments to mean, properly considered, that the Facebook posts should not be relied upon to determine whether or not Ms Hellessey was TPD without further reassessment, with the benefit of any other recent professional documentation. MetLife's summary of Dr Hodgson's opinion does not do justice to the doctor's views.
MetLife followed its comment about the Facebook posts possibly not being reflective of Ms Hellessey's usual status by saying: "In saying that, Dr Hodgson stated that the Facebook pages appear to be inconsistent with the history taken in September 2012". What Dr Hodgson in fact said was that "it would appear there are inconsistencies with the history taken compared with the opinion I offered in September 2012, after Ms Hellessey's interview and review of the professional records". The difference may be thought to be subtle, but the word "inconsistent" has a different connotation to "inconsistencies". The former is more absolute. Dr Hodgson used the word "inconsistencies" as a precursor to expressing her opinion that she was "unable to give a professional independent medical opinion as [she was] doubtful whether or not credence can be given to Facebook comments and photos". That is why Dr Hodgson recommended a reassessment of Ms Hellessey, implicitly by herself.
As I have observed above, MetLife did not arrange for Dr Hodgson to reassess Ms Hellessey, notwithstanding that it recorded her belief that a reassessment was appropriate. MetLife does not give any explanation in the letter as to the reason for its view that it was appropriate for it to decline Ms Hellessey's claim without the reassessment by Dr Hodgson taking place.
MetLife was correct in its summary of Dr Hodgson's opinion that she did not consider Ms Hellessey was unlikely ever to engage in any employment within the meaning of the definition of TPD.
It is of some significance that in her first report, as recorded by MetLife, Dr Hodgson considered that Ms Hellessey "may, with time, be able to work in some fulfilling capacity related to her education, experience and training". The later view expressed by Dr Hodgson, without the benefit of any additional consultation with Ms Hellessey, or even the reassessment that Dr Hodgson herself recommended as being appropriate, was much more definite than the opinion expressed in the earlier report.
It is notable that while Dr Hodgson's first report was a substantive considered report, which also addressed specific questions asked by MetLife, the second report responded in simple terms to specific additional questions asked by MetLife. I do not suggest that there is anything professionally inadequate with that approach, but it is clear from a reading of the second report that Dr Hodgson gave no reasons or elaboration at all for her response to Question 4, which was the question which asked Dr Hodgson whether she was of the opinion that Ms Hellessey satisfied that TPD definition.
According to the list of materials that Dr Hodgson was given, which is contained in her first report, she was given a report of Dr Durrell dated 17 June 2011 (which was not listed in MetLife's first procedural fairness letter), and his report dated 1 June 2012. Dr Hodgson made a reference to a "Confidential medical report on permanent incapacity", but she did not identify the report to which she was referring. Dr Hodgson was apparently not given a copy of Dr Durrell's 23 December 2011 report, which may not matter, as the opinions expressed by Dr Durrell in that report were substantially covered by his 1 June 2012 report.
The 1 June 2012 report is the latest substantive report provided by Dr Durrell before Dr Hodgson prepared her reports.
As I have noted above, in his 1 June 2012 report, in his responses to questions 8 and 10, Dr Durrell gave explicit opinions that Ms Hellessey satisfied the TPD definition, and in the context of his whole report, gave the basis for that opinion.
It is obvious, but inexplicable, that in her second report Dr Hodgson stated an absolute opinion that Ms Hellessey did not satisfy the TPD definition, but did not see fit to offer any reasons for her disagreement with Dr Durrell's opinion. To put that failure in context, Dr Durrell was the treating psychiatrist, who had the benefit of a longitudinal view of the consequences of Ms Hellessey's psychological injuries (which Dr Hodgson herself recognised on page 4 of her first report).

[36]

Treatment of Facebook posts

The next thing dealt with by MetLife in its letter denying Ms Hellessey's claim was described as: "Facebook Status Updates and Posts Summary dated 8 November 2012". This part of the letter is a summary of MetLife's understanding of a number of Facebook posts. It is appropriate to set out this aspect of the letter in full: The Member's Facebook was observed from a period of 3 April 2012 to 3 November 2012. The Member had 608 friends at the time of review. Whilst this is not conclusive list, the Facebook status and posts identify the following: (a) On 28 July 2012 the Member attended Southern Highlands & Tablelands Regional A.P.S.B. Sub Committee Show that was held at 9am at Goulburn Pony Club Grounds. (b) On 1 August the Member writes "Could not be happier with my life right now! WOW! …" (c) 3 August 2012 the Member posts "so excited to see all the lovely people tomorrow night at the NSW Palomino Birthday Bash and Awards night! Cant hardly wait! Plus… staying at the Sebel in a spa suite.. Mmm. Yay. Bring it." (d) On 4 August 2012 the Member posts "Woo hoo. Palomino Awards Night and Birthday Bash. Lovely people those Pally owners. See you all tonight." (e) 5 August 2012 the Member added a photo which displayed a range of trophies and medals. The Member writes 'Not a bad night! - with Fairymead Show Horses. (f) On 23 August 2012 a photo of a newborn foal is posted that the Member states is co-owned with her father. (g) On 30 August 2012 the Member posts a photo of herself and her daughter in front of the Harbour Bridge on a trip to Sydney. (h) the member attended the Sydney International Equestrian Centre in Parramatta on 18 October 2012 to show one of her horse (sic) which was in a competition. Whilst the above is not a conclusive list, the Facebook posts demonstrate that the Member occasionally departed her residence to attend horse related events and participated in ordinary daily activities. Again, this is contrary to the social phobia the Member reports to treating doctors.
In this extract from the letter MetLife has expressed its own opinion that the events listed, as well as others referred to in Ms Hellessey's Facebook posts, demonstrated conduct "contrary to the social phobia that [Ms Hellessey] reports to treating doctors".
MetLife appears to have ignored the opinions expressed by Mr Ward in his 7 May 2013 report in which he said, among other things: "Ms Hellessey has reported to me on numerous occasions that if she does participate in social activities she has 'safety behaviours' in which (sic) enable her to get through an activity provided that she is carrying out the safety behaviour". Further, in relation to Ms Hellessey being comfortable with horse people, Mr Ward said: "… I do not consider this behaviour inconsistent with social phobia, as she appears to be in her comfort zone somewhat at this event".
Dr Durrell specifically responded to questions asked by MetLife concerning Ms Hellessey's Facebook posts in his 29 September 2013 report. In that report Dr Durrell confirmed that having 667 current 'friends' on Facebook did not represent real-life friendships. Dr Durrell provided specific responses to the various events relied upon by MetLife. He concluded: "I can confirm that the Facebook entries that you have provided do not exclude or confound the diagnosis of PTSD". Finally, Dr Durrell reaffirmed his opinion that Ms Hellessey satisfied the TPD definition. MetLife has ignored this expert medical opinion evidence.
As discussed above, even Dr Hodgson, who was the 'independent' consultant psychiatrist retained by MetLife, in her 3 May 2013 report stated the opinion that the Facebook posts may not be reflective or indicative of Ms Hellessey's usual status, and firmly advised that a reassessment of Ms Hellessey was appropriate.
It therefore seems clear that MetLife decided to act upon its own interpretation of the psychological significance of the Facebook posts to the question whether Ms Hellessey satisfied the TPD definition, in the face of the contrary opinions expressed by the treating psychiatrist, the treating psychologist, and the independent consultant psychiatrist. In doing so, it relied upon its own lay view that the Facebook posts were contrary to the social phobia Ms Hellessey had reported to her treating doctors.

[37]

Failure to deal with Dr Durrell's reports

As I have noted above, notwithstanding that MetLife listed a summary of all of the other significant evidence, including the reports of medical professionals, it did not do so in relation to Dr Durrell.
MetLife, in the part of its letter that recorded the submissions made on behalf of Ms Hellessey, noted that: (I) Dr Durrell, the Member's treating psychiatrist, is supportive of the Member's claim and has provided numerous reports, all of which state the Member cannot return to work within her education, training and education (sic).
MetLife's only response to Dr Durrell's opinions is found in the first paragraph under the heading "MetLife's Decision". MetLife stated: Having reviewed the available evidence, MetLife has determined that the prevailing medical opinion is that the Member will likely return to employment. The only contrary view to this is Dr Durrell whose opinion as at the assessment date is that the Member was unlikely to return to employment.
As Dr Durrell was the long-term treating psychiatrist, with a genuine longitudinal view of the consequences of Ms Hellessey's psychological injury, and as Dr Durrell had also provided to MetLife a number of substantive reports that were far more detailed than simple responses to individual questions asked, it is clear that in its letter of denial MetLife did not do justice to the evidence provided by Dr Durrell.
MetLife's letter gives the impression that MetLife had 'counted heads', and having concluded that Dr Durrell was in the minority, taken the view that it was not necessary to set out in any detail or respond to the reasons given by Dr Durrell in support of his medical opinions.
That view is supported by the fact that in the following paragraphs of the letter MetLife again summarised what it claims were the contrary opinions of the other medical professionals, as well as the vocational assessment report.
MetLife then expressed its conclusion in the following way: Having considered the above medical opinions, vocational assessment, the surveillance, and the Facebook posts and status updates, MetLife considers that the Member is active in her activities of daily living and is able to actively attend social events contrary to that reported to the treating doctors. For the reasons set out variously above, MetLife does not consider that the Member has discharged the burden of demonstrating that she meets the policy definitions of Total and Permanent Disablement in either the Basic Cover policy or of the Police Blue Ribbon policy. Accordingly, MetLife declines payment of benefit for this claim.

[38]

Adequacy of MetLife's reasoning

It will now be appropriate to consider the adequacy of the reasoning and the conclusion reached by MetLife in its first letter declining Ms Hellessey's claim. This will only become relevant if Ms Hellessey is still entitled to challenge the validity of the first rejection.
It is proper to have regard to the first procedural fairness letter as well as the first rejection, as the terms in which both were written show that the former was likely to continue to operate as part of the decision-making process except to the extent that in the first rejection MetLife may have indicated that it had changed its position.
I have made a number of criticisms of the reasoning process adopted by MetLife during the course of my analysis of the first procedural fairness letter and the first rejection. In what follows I will restrict myself to deficiencies in MetLife's decision-making process that I consider to be sufficiently unreasonable to be capable of vitiating the decision made, in the sense that it would be a breach of MetLife's duty of utmost good faith and fair dealing to insist upon the validity of the decision if Ms Hellessey were entitled to challenge it. There is obviously scope for reasonable difference of opinion as to the seriousness of individual inadequacies in the reasoning process.
MetLife gave almost no weight at all to the many reports of Dr Durrell, notwithstanding that he was the treating psychiatrist, he continued to prescribe Ms Hellessey's medication, his experience was longitudinal over a considerable period in which he could evaluate the success of attempts to treat Ms Hellessey's psychological injury, and his reports were substantive and carefully reasoned. The extremity of MetLife's position is demonstrated by its failure to list Dr Durrell's reports in the first rejection (par 253 above) and its failure to summarise their contents notwithstanding the summaries made of other medical opinions (par 303 above). In my view this was of itself an unreasonable course for MetLife to have taken because of the obvious importance of this evidence to Ms Hellessey's claim.
MetLife's response to Dr Durrell's reports should not, however, be viewed in isolation. MetLife justified its treatment of Dr Durrell's reports by describing his view as being a minority one (par 306 above). It also gave excessive weight to the early medical opinions expressed around the time of the assessment date (par 175 above). Although MetLife gave some weight to Dr Hodgson's reports, in my view it did not give proper weight to all of the medical reports that it received before the time of the third rejection, contrary to the principle established in TAL v Shuetrim (par 130 above). This course on MetLife's part had the subsidiary effect that MetLife gave undue weight to initial expressions of medical opinion such as Mr Ward's statement that he would "like to remain optimistic" (pars 210 and 218 above); Dr Hodgson's statement that Ms Hellessey "may with time" be capable of employment (par 229 above); and Dr Bertucen's statement that Ms Hellessey "may be capable" of employment (par 237/238 above). There is some force in Ms Hellessey's criticism of MetLife's reasoning that these expressions by the doctors when looked at closely were really statements of hope rather than considered medical opinions. However, in my view, the greater vice was that MetLife's reasoning led it to completely discount Dr Durrell's considered opinions.
In this regard, I have not ignored the fact that in Dr Hodgson's second report she expressed a definite view that Ms Hellessey did not satisfy the TPD definition, even though she had not seen Ms Hellessey again, and had not clearly expressed that opinion in her first report after she had examined Ms Hellessey. However, it was in my view unreasonable for MetLife to treat Dr Hodgson's opinion as being of greater value than Dr Durrell's many statements of opinion, given that Dr Hodgson made no attempt to respond to Dr Durrell's reasoning, and indeed gave no real reasons for her own opinion. Furthermore, Dr Hodgson pointedly advised MetLife that she should be given the opportunity to examine Ms Hellessey again (par 279 above), and that advice was ignored by MetLife. Nonetheless, MetLife preferred Dr Hodgson's opinion to those given by Dr Durrell.
The gravamen of MetLife's reasoning appears in its conclusion (par 310 above that: MetLife considers that (1) the Member is active in her activities of daily living and (2) is able to actively attend social events (3) contrary to that reported to the treating doctors. I have inserted the different numbers against the components of this conclusion in order to assist the analysis.
First, in my view it was not reasonable for MetLife to reach its own conclusion, as expressed in (1), that Ms Hellessey was active in her activities of daily living. While there was considerable evidence that Ms Hellessey did not lead the life of a hermit, the evidence from the surveillance report and the Facebook posts did not justify the conclusion reached by MetLife, as a matter of its own judgment, because MetLife ignored the opinions of the medical experts in the manner that I have described above (pars 194, 197, 198, 202, 205, 217, 227, 228, 231-233 above). All medical opinion was to the effect that Ms Hellessey was totally incapacitated from any employment up to the date of MetLife's third rejection. The question was whether Ms Hellessey was unlikely ever in the future to have the capacity to engage in relevant employment. I am not satisfied that a valid opinion on that subject could be expressed by a layperson in the position of MetLife. It could not reasonably be expressed in the face of contrary opinion by the relevant medical experts. To the extent that Dr Hodgson expressed opinions supportive of the conclusion reached by MetLife, it was on the basis that Ms Hellessey should be reassessed (par 231 above).
Secondly, the same conclusion should be reached about MetLife's proposition (2). In essence, MetLife has concluded, based upon evidence of particular types of social interaction, that Ms Hellessey was capable of the social interactions necessary to enable her to obtain and maintain full or part-time employment.
It must be noted that MetLife used the word "is" in relation to both its conclusions concerning Ms Hellessey's activities in daily living and participation in social events. They were not conclusions as to Ms Hellessey's possible capacities in the future. They were conclusions that were directly inconsistent with the unanimous views expressed by the medical experts concerning Ms Hellessey's present incapacity (except possibly for the observation by Dr Hodgson in her second report that there may be "inconsistencies" that warranted re-examination of Ms Hellessey).
Thirdly, the conclusion expressed by MetLife in (3) that Ms Hellessey's activities were "contrary to that reported to the treating doctors" was simply false. MetLife ignored the responses given by Mr Ward and Dr Durrell to MetLife in reports that were directly responsive to enquiries on this subject (pars 194, 197, 198 202, 205, 217 and 219 above), Dr Durrell and Mr Ward explained in their reports in some detail their responses to Ms Hellessey's Facebook posts and her involvement in horse-related activities. They advocated these activities as being therapeutic. They made no suggestion that these activities were inconsistent with their diagnoses or their views as to Ms Hellessey's prognosis. The detail of the evidence of Ms Hellessey's activities did not justify the conclusion that Ms Hellessey had misled her treating medical professionals, given that those professionals were clearly aware of the substance of the evidence.
This is a significant finding, because in the absence of any explanation from MetLife, it justifies a conclusion that MetLife had acted upon a false belief, which it had formed internally on the basis of its own understanding of the Facebook posts and the surveillance report, contrary to the weight of the available evidence, that Ms Hellessey had made a false claim based upon her current circumstances.
As expressed, MetLife's conclusion was not one that accepted the medical view that Ms Hellessey was currently totally incapacitated, but put forward a conclusion that Ms Hellessey was likely to be able to find relevant employment in the future.
Of particular significance is the failure by MetLife to respond to what was effectively the final word expressed by Dr Durrell in his 29 September 2013 report, where he referred to the need of Ms Hellessey for medications including Zoloft, Cipramil, Valium and Xanax in order for her to continue with her horse related activities, and that: "In terms of her Zoloft medication over recent weeks I have identified that Ms Hellessey, despite a dose of 250 mg daily, was having breakthrough anxiety and developed tolerance to this medication. A recent shift to Cipramil 20 mg daily has generated some improvements in terms of her having less breakthrough anxiety and panic attacks". This evidence underscored the fact that, whatever Ms Hellessey's long-term prognosis might be, her psychological state was not improving, and she required strong doses of medication in order to enable her to conduct such social life as she had.
Finally, the basis upon which MetLife rejected Ms Hellessey's claim was unreasonable because MetLife acted upon the vocational assessment report without obtaining any medical opinion that Ms Hellessey's psychological injury was consistent with her being able to engage in the forms of employment identified in the future. Indeed, the only medical opinion given on the subject was that expressed by Dr Durrell in his 16 February 2013 report (par 189 above) in which the doctor explained in detail why Ms Hellessey would not be able in the future to undertake the forms of employment identified in the report.
Mr Everett's vocational assessment report was dated 21 August 2012. It is not a report listed by Dr Hodgson as part of the materials available for the purposes of her 20 September 2012 report. Nor is it referred to in Dr Hodgson's 3 May 2013 report, which responds to the Facebook posts.
The vocational assessment report is problematic because it expresses opinions as to the work that Ms Hellessey was presently capable of doing, without Mr Everett being given any assumptions as to the real consequences of Ms Hellessey's psychiatric injuries. It may be that this shortcoming in the vocational assessment report could be overcome by the expression of expert medical opinion that explained how in the future Ms Hellessey's mental injuries were sufficiently likely to resolve to enable her in a real and practical way to be employed in the occupations identified by Mr Everett. MetLife did not seek or obtain expert medical advice to that effect.

[39]

Request for review of first rejection

On 24 February 2015, the Trustee sent an email to Neshko Stevin at MetLife to seek a review of MetLife's 22 December 2014 determination to reject the TPD claim that the Trustee had made on behalf of Ms Hellessey.
The Trustee noted that "Dr Hodgson was never asked to comment on the Vocational Assessment report of August 2012. Instead, Dr Hodgson was asked to comment on the Member's Facebook activities but was reluctant to do so without further qualification…"
Among other things, the Trustee also noted that while Mr Ward, the treating psychologist, was optimistic of Ms Hellessey returning to meaningful employment, that was his view in late 2012, with a 12 month deferral in relation to alternative employment.
The Trustee also noted that both Mr Ward and Dr Durrell viewed the alternative employment options identified in the vocational assessment as being inappropriate due to Ms Hellessey's ongoing symptoms. It said that the vocational options had no medical support as at the date of MetLife's final determination.
While the Trustee said that it understood "how MetLife might have come to this final determination" it asserted that MetLife "may not have duly considered Dr Durrell's last noted report dated 16 February 2013," and referred to parts of that report that indicated increasing levels of medication required by Ms Hellessey.
The Trustee said that it did not agree with MetLife's determination "as it appears that the Insurer's assessment does not fully take into account the Member's psychiatric deterioration and associated medication increases" and because "the vocational assessment options appears to never have been medically endorsed".
The Trustee sought a "review" of MetLife's determination. It is a fair reading of the Trustee's letter that in-so-far as it requested a review of the first rejection, it expected that MetLife would simply reconsider the existing evidence before it, and after giving due weight to all that evidence, would decide whether on the evidence provided by Ms Hellessey, it was satisfied that she had satisfied the TPD definition. The Trustee did not invite MetLife to launch into a new investigation.
It appears from the evidence that MetLife did not respond to this email immediately, and on 26 March 2015 the Trustee asked MetLife to "clarify the current status of [its] review".
Nothing appears to have been heard from MetLife until 19 May 2015, when MetLife sent an email to the Trustee asking for a copy of Ms Hellessey's complete Medical Discharge file "to assist with the review of this claim".
It appears that it was necessary for the Trustee to obtain Ms Hellessey's Medical Discharge File from the NSW Police Force.
MetLife formally responded to the Trustee's 24 February 2015 email by letter dated 18 May 2015.
Among other things, MetLife noted that the policies required the member to provide proof to MetLife's satisfaction that the member had satisfied the relevant TPD definition, and that the assessment must take place at the time that the member has been absent from work for six consecutive months, which was the date for assessment.
The letter then noted that, as Ms Hellessey ceased work with the NSW Police Force on 30 August 2010, the date for assessment was 1 March 2011.
MetLife then stated: MetLife acknowledges that evidence which comes into existence after this date can be relevant to its assessment of the Member's claim if that evidence has the capacity to inform regarding the Member's condition and prognosis at the date for assessment. However, the starting point must be to consider the contemporaneous medical evidence as it existed at, and around, the date for assessment. Such evidence is likely to be the most probative of the Member's condition and likelihood of returning to work within her education, training or experience at the date for assessment.
This statement appears to show that MetLife had an incorrect understanding of how to evaluate the available evidence concerning the likelihood of the member being able to gain relevant employment. It is true that the incapacity must be present at the assessment date. There is no reason why the medical evidence brought into existence at or about that date will be the most probative. In the case of psychological injuries such as PTSD, some members will recover and others' psychological injuries will become chronic, and they will not recover. It may take time before it becomes clear in respect of a particular member what the real prognosis was as at the assessment date. The medical evidence must be assessed on its own terms according to the proper weight to be given to it, without a prejudice that evidence created contemporaneously with the assessment date will be the most probative. It is actually likely to be the least reliable.
MetLife then referred to the report of Dr Falk dated 10 March 2011 (within nine days of the date for assessment), Mr Ward's report dated 18 May 2011 (within three weeks from the date for assessment), and the report of Dr Jeff Bertucen dated 30 August 2011 (within nine months from the date for assessment). In the manner discussed above, each of these early reports, in different terms, allowed for the possibility that Ms Hellessey would return to work in some other occupation than the Police Force.
MetLife referred to the fact that Ms Hellessey still had a further 31 years of potential employment before reaching retirement age, and also the various types of work experience that she had before she joined the Police Force. It then said: MetLife notes your concerns regarding the alternative medical opinions which have been expressed, particularly by Dr Durrell, treating psychiatrist. MetLife confirms that it has considered Dr Durrell's report of 16 February 2013. The extent to which Dr Durrell's report of 16 February 2013, and his later reports which MetLife has also considered, informs upon the Member's prognosis at and around the date for assessment is questionable. In this respect, MetLife notes that in his 3 December 2010 report, although Dr Durrell said he was not prepared to put a timeframe on when the Member may return to work, he believed at that point in time that a "return to work within her premorbid [pre-injury] role is possible…".
Then, in response to the Trustee's request, MetLife said: In any event, in view of the issues you have raised on behalf of the Fund, and in accordance with your request, MetLife agrees to conduct in good faith a detailed review of its determination. As part of that review, MetLife may conduct some further enquiries with a view to obtaining further evidence which is contemporaneous with the assessment date. We will revert to you again once our detailed review is complete and aim to finalise our review within 35 days.
The terms of this letter make it difficult to avoid the conclusion that MetLife had an ingrained view that the issue of whether a member satisfied the TPD definition was primarily dependent on what the evidence contemporaneous with the assessment date established as to the member's prognosis. It demonstrates a strong predilection on MetLife's part to diminish the significance of Dr Durrell's reports prepared after the assessment date as a result of his longitudinal experience with the development of Ms Hellessey's psychological injuries.
It appears from the evidence that MetLife requested a further report from Dr Bertucen and to be given Dr Falk's clinical notes.
By letter to the Trustee dated 13 August 2015, MetLife again stated: "After careful consideration of the basis for the request we are prepared to review our decision" and it undertook to do so expeditiously.

[40]

MetLife's second procedural fairness letter dated 10 September 2015

On 10 September 2015, MetLife wrote a second procedural fairness letter to Ms Hellessey, this time addressed to her solicitors.
Among other things, MetLife noted that it had agreed with the Trustee's request to review its 22 December 2014 determination. It said that it had obtained: "additional medical evidence including copies of your medical discharge file, workers compensation file and a supplementary report of Dr Bertucen, consultant psychiatrist". It invited a response from Ms Hellessey.
Among some formal information, MetLife provided an index of the information previously provided to Ms Hellessey which was material to MetLife's decision-making process. It also provided an Information Summary of the information considered by MetLife in assessing the claim (while noting that it was not practicable to refer to every document that had been taken into account).
Under the heading "OUR ASSESSMENT", MetLife said: Based on our review and assessment of all of the material including the material listed in the Information Summary and the letter from your solicitors dated 21 July 2014, MetLife has arrived at the preliminary view that the medical and other evidence, particularly the evidence around the date for assessment of your claim (on or around 1 March 2011), does not support a conclusion that you satisfy the relevant TPD definitions. The most contemporaneous medical opinion to the date for assessment was expressed by your treating GP (Dr Paul Falk) in a questionnaire dated 10 March 2011. Dr Falk was asked specifically whether you were fit for work external to the New South Wales Police Force (NSWPF). Dr Falk expressed his belief that you were fit for such work. A short time later, your treating psychologist (Mr Rodney Ward), provided a medical report dated 18 May 2011 setting out his opinion regarding your condition and prognosis. As Dr Falk had done, Mr Ward supported your application for medical discharge from the NSWPF. That being said, Mr Ward said he was supportive of your participating in a vocational assessment and that you may be fit for work external to the NSWPF as long as such work was 'far removed' from policing. A similar opinion was expressed by Dr Jeff Bertucen, consultant psychiatrist, who assessed you on behalf of the NSWPF on 30 August 2011. Dr Bertucen believed that your condition may recover to a point where you would be fit to work external to the NSWPF in a position which was unrelated to police work. Dr Bertucen offered a time frame of between six to twelve months after your medical discharge from the NSWPF as to when such a recovery may occur. Leading up to your medical discharge on 8 December 2011, Mr Ward said he had begun to notice an improvement in your 'base line anxiety' in a report dated 4 October 2011. Following your medical discharge, Dr Falk reported in January 2012 that your long term goal should be a return to suitable work external to the NSWPF. [MetLife then referred to Ms Hellessey's employment experience before joining the Police Force and the occupations identified in Mr Everett's vocational assessment report]. As he had independently assessed you relatively close to the date of assessment, MetLife asked Dr Bertucen to review the vocational options identified above and the vocational assessment report, along with the other medical evidence relating to your claim, and to provide his opinion as to the likelihood of your being able to return to work in each of the positions at or around the date of assessment. In his supplementary report dated 17 August 2015, Dr Bertucen concluded, based on his initial assessment, that it was likely you could engage in each of the vocational options identified on either a part-time or full-time basis at some point prior to your reaching retirement age. Further to the above, MetLife notes that you were 34 years old at the date for assessment and therefore had a further 31 years (at that time) prior to reaching retirement age in order for you to regain a capacity for suitable employment. In addition to the opinions expressed above, you were independently assessed on behalf of MetLife by Dr Barbara Hodgson, consultant psychiatrist, on 10 September 2012. In her report dated 20 September 2012, Dr Hodgson believed that although you would be considered unfit for work at the time of her assessment, with time and ongoing support from your treating practitioners, you may be fit to return to work within your education, training and experience. Dr Hodgson reiterated her opinion in a supplementary report dated 3 May 2013. Finally, MetLife notes that your treating psychiatrist, Dr Durrell has consistently been of the opinion that you will not return to work in any capacity at any point in the future. MetLife has considered Dr Durrell's opinion and the reports which he has provided. MetLife does not accept Dr Durrell's opinion, noting its inconsistency with the views offered by not only your other treating practitioners (Dr Falk and Mr Ward) but also the other independent specialists who have assessed you including Dr Bertucen and Dr Hodgson.
MetLife then stated in relation to both policies that it had not formed the opinion that Ms Hellessey had become incapacitated to such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she was reasonably qualified by reason of education, training or experience.
Ms Hellessey was given a further 28 days to make further submissions about the information provided with the letter. MetLife would then finalise its consideration.
In its Information Summary, MetLife set out in table form the relevant documentary evidence upon which it had acted. The information appears to cover all of the medical reports that were available at the time of the first rejection, as well as the vocational assessment report and the surveillance report.
In addition, MetLife identified a supplementary medical report of Dr Bertucen and dated 17 August 2015. MetLife made the following comment on this report: Although Dr Bertucen's supplementary report was provided after the date for assessment. His opinion as to the likelihood of the member returning to work was based on his assessment of the member in August 2011 (within 6 months of the date for assessment).
It is interesting, given the difficulties with Dr Bertucen's original report dated 30 August 2011, in which he arguably expressed inconsistent opinions, that MetLife made the following comment: It is clear to MetLife that Dr Bertucen adopted an erroneously narrow construction of the concept of 'education, training or experience'. In any event, Dr Bertucen did believe that the member may retain a capacity to work external to the NSWPF, in a role unrelated to police work, within 6-12 months after being medically discharged.
MetLife also listed Facebook Status Updates accessed on 7 November 2012.
It is clear that in preparing the second procedural fairness letter MetLife was still acting on the basis that medical opinions prepared relatively contemporaneously with the assessment date provided the most cogent evidence of whether a claimant satisfied the TPD definition. MetLife expressly justified reliance upon Dr Bertucen's 17 August 2015 report on the basis that he was elaborating on the report based on his assessment of Ms Hellessey in August 2011.
MetLife was also proceeding on the basis that it should discount Dr Durrell's series of longitudinal reports on the ground that his opinion was in the minority of medical opinions.

[41]

Dr Bertucen's 17 August 2015 report

MetLife's letter of instructions to Dr Bertucen is not in evidence. It appears likely from the terms of Dr Bertucen's response that MetLife posed a number of questions to Dr Bertucen in relation to the five occupations of "Learning Development/Training Development" professional, childcare worker, driving instructor, cashier and sales representative, which were identified in the vocational assessment report as being occupations for which Ms Hellessey was reasonably qualified by reason of education, training or experience.
Question 1 and Dr Bertucen's response was representative of his responses to the other questions: 1. In relation to work as a 'Learning Development/Training and Development' professional, a) Do you believe at or around the date of assessment (1 March 2011) it would have been reasonable to conclude that the member was unlikely ever to engage in work on either a part-time or full time basis as a 'Learning Development/Training Development' professional until she reached retirement age (i.e. a further 31 years)? With regards to returning to work as a Learning and Development/Training and Development Professional (i.e. outside the NSW Police Force), I would draw your attention to my remarks on page 8 of the report under question 7, "Ms Hellessey may well be able to recover to an extent that she is able to return to some form of work which is not related to police work in any way, however not at present. She may be capable of returning to some form of work within 6-12 months after her medical discharge from the NSW Police Force". I note that Ms Hellessey had not returned to work at the time of the assessment by Dr Barbara Hodgson of 10th September 2012. Therefore, at the time of assessment, it was likely she could engage in work either on a part-time or full-time basis as a Learning Development/Training Development professional until retirement age. b) Upon your review of the whole of the medical and other evidence, is there any information or opinion which would alter your opinion as to the Member's prognosis at or around the date of assessment in terms of her future prospects of returning to work in the above position at some point in the future? No.
As I have noted, the evidence does not include MetLife's instructions to Dr Bertucen. I infer because of MetLife's comments in the Information Summary concerning Dr Bertucen's second report that he was asked to base his report on his assessment of Ms Hellessey in August 2011.
It is important to note that MetLife did not in any of its questions to Dr Bertucen ask him to express an opinion as to whether, having regard to the evidence available up to 17 August 2015, Ms Hellessey's incapacity as at the assessment date was in fact such as to satisfy the TPD definition. It asked the doctor whether at or around the assessment date "it would have been reasonable to conclude that the member" satisfied the TPD definition. The question framed in those terms specifically required Dr Bertucen to revisit his state of mind in August 2011 and decide whether upon the information then available the conclusion was warranted that it was unlikely that Ms Hellessey would ever engage in relevant employment. That question would have had the tendency to cause Dr Bertucen to ignore subsequent evidence.
Dr Bertucen was provided with Dr Hodgson's 10 September 2012 report, which was her first report, as it is mentioned by Dr Bertucen in his answer to question 1(a). Question 1(b) refers to a "review of the whole of the medical and other evidence", but it does not identify that material.
Dr Bertucen responded to each of the subsequent questions by referring to his answer to question 1(a) and stating that, at the time of assessment, it was likely that she could engage in the relevant type of work. In each case he answered "No" to question (b).
There is in my view an obvious logical problem with Dr Bertucen's response to question 1(a). In the first paragraph of his answer he reiterated the view expressed in his first report dated 30 August 2011, that Ms Hellessey may be capable of returning to some form of work within 6-12 months after her medical discharge from the Police Force, and then noted that Ms Hellessey had not returned to work by 10 September 2012. Ms Hellessey was discharged from the Police Force in November 2011. It was a non sequitur for Dr Bertucen to note that Ms Hellessey had not returned to work by 10 September 2012, and then conclude that "therefore, at the time of assessment, it was likely that she could engage" in the work.
It is notable that Dr Bertucen provided no reasoning for any of the opinions that he expressed.

[42]

Second rejection dated 19 October 2015

The 28 days that MetLife gave to Ms Hellessey's solicitors to respond to its 10 September 2015 letter expired on 8 October 2015. No further submissions were provided on behalf of Ms Hellessey by that date.
On 19 October 2015, MetLife sent a letter to the Trustee whereby it again rejected Ms Hellessey's claim.
MetLife stated under the heading "OUR DECISION": Based on our review and assessment of all of the material including the material listed in the Information Summary enclosed with our letter dated 10 September 2015 and the letter from the member's solicitors dated 21 July 2014, MetLife has concluded that the medical and other evidence, particularly the evidence around the date for assessment of the member's claim (on or around 1 March 2011), does not support a view that the member satisfies the relevant TPD definitions. The most contemporaneous medical opinion to the date for assessment was expressed by the member's treating GP (Dr Paul Falk) in a questionnaire dated 10 March 2011. Dr Falk was asked specifically whether the member was fit for work external to the New South Wales Police Force (NSWPF). Dr Falk expressed his belief that the member was fit for such work. A short time later, the member's treating psychologist (Mr Rodney Ward), provided a medical report dated 18 May 2011 setting out his opinion regarding her condition and prognosis. As Dr Falk had done, Mr Ward supported the member's application for medical discharge from the NSWPF. That being said, Mr Ward said he was supportive of the member participating in a vocational assessment and that she may be fit for work external to the NSWPF as long as such work was 'far removed' from policing. A similar opinion was expressed by Dr Jeff Bertucen, consultant psychiatrist, who assessed the member on behalf of the NSWPF on 30 August 2011. Dr Bertucen believed that the member's condition may recover to a point where she would be fit to work external to the NSWPF in a position which was unrelated to police work. Dr Bertucen offered a time frame of between six to twelve months after the member's medical discharge from the NSWPF as to when such a recovery may occur. Leading up to the member's medical discharge on 8 December 2011, Mr Ward said he had begun to notice an improvement in the member's 'base line anxiety' in a report dated 4 October 2011. Following her medical discharge, Dr Falk reported in January 2012 that the member's long term goal should be a return to suitable work external to the NSWPF. MetLife notes that prior to joining the NSWPF, the member gained various education, training and experience in vocations which are 'far removed' from policing. [The letter then discusses this employment, together with the results of the vocational assessment report]. As he had independently assessed the member relatively close to the date of assessment, MetLife asked Dr Bertucen to review the vocational options identified above and the vocational assessment report, along with the other medical evidence relating to the member's claim, and to provide his opinion as to the likelihood of the member being able to return to work in each of the positions, at or around the date of assessment. In his supplementary report dated 17 August 2015, Dr Bertucen concluded, based on his initial assessment of the member in August 2011, it was likely she could have engaged in each of the vocational options identified on either a part-time or full-time basis at some point prior to the member reaching retirement age. Further to the above, MetLife notes that the member was 34 years old at the date for assessment and, therefore, had a further 31 years (at that time) prior to reaching retirement age in order for her to regain a capacity for suitable employment. In addition to the opinions expressed above, the member was independently assessed on behalf of MetLife by Dr Barbara Hodgson, consultant psychiatrist, on 10 September 2012. In her report dated 20 September 2012, Dr Hodgson believed that, although the member would be considered unfit for work at the time of her assessment, with time and ongoing support from her treating practitioners, the member may be fit to return to work within her education, training and experience prior to reaching retirement age. Dr Hodgson reiterated her opinion in a supplementary report dated 3 May 2013. Finally, MetLife notes that the member's treating psychiatrist, Dr Durrell, has consistently been of the opinion that she will not return to work in any capacity at any point in the future. MetLife has considered Dr Durrell's opinion and the reports which he has provided. MetLife does not accept Dr Durrell's opinion, noting its inconsistency with the views offered by not only the member's other treating practitioners (Dr Falk and Mr Ward) but also the other independent specialists who have assessed the member including Dr Bertucen and Dr Hodgson.

[45]

Dr Westmore's report

On 18 December 2015, Ms Hellessey's solicitors provided to the solicitors for MetLife a report of Dr Bruce Westmore dated 9 December 2015. The report expressed an opinion that on 28 February 2011, Ms Hellessey was unlikely ever to engage in any gainful profession, trade or occupation for which she was reasonably qualified by education, training and experience. The solicitors requested on behalf of Ms Hellessey a formal reconsideration of the claim.
Dr Westmore it is a forensic psychiatrist. He examined Ms Hellessey on 19 November 2015.
Dr Westmore stated the following prognosis for Ms Hellessey: This lady's prognosis is poor. I note the chronic nature of her illnesses, something which can be quite typical for PTSD. I also note the very significant functional impairment associated with her chronic psychiatric conditions.
The summary of Dr Westmore's report included the following: She has received long term psychiatric care and she continues under the care of a psychiatrist and she takes psychiatric medication. She has not worked since August 2010 and, apart from suffering chronic and, I suspect at times, quite disabling psychiatric symptoms, she is also significantly impaired from a functional perspective. A Vocational Assessment refers to her potential transferable skills, but unfortunately assessments of this type are more applicable to individuals who are not psychiatrically unwell. These types of assessments cannot take into account the impact a person's psychiatric symptoms might have on their capacity to function or, indeed, to use any skills which might be transferrable from one position to another. PTSD is an illness which is often chronic i.e. the condition can become a lifelong condition from which patients never fully achieve complete remission. That appears to be the case with Ms Hellessey and it is not an uncommon outcome for police officers who are injured in the workplace. If one looks at her illness history, the continuing functional impairment she suffers and her modest only response to treatment, then Ms Hellessey clearly has very significant limitations in terms of her capacity for work. She needs ongoing and probably indefinite psychiatric treatment, including medication. Her functional incapacity is significant and her prognosis is poor, considering the course her illnesses have taken to date and the modest only response to treatment I have referred to earlier. On the balance of probability, I do believe that Ms Hellessey was, on 28 February 2011, being six months after she ceased work, unlikely ever to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training and experience. That situation is unlikely ever to alter in my view, regardless of her previous education, training and experience. She is socially isolated and withdrawn, depressed in mood, irritable and intolerant. Her capacity to deal with clients, co-workers and supervisors would all be significantly impaired because of her psychiatric illnesses and the associated symptoms. Even if she could obtain employment, her ability to maintain employment is virtually non-existent in my view and she certainly could net obtain employment on the open market, regardless of what "transferable skills" may have been identified from her past work history.
Dr Westmore clearly proceeded on the basis that the assessment date was six months after Ms Hellessey ceased to work in the Police Force, but he had regard to all of Ms Hellessey's subsequent clinical history to make an assessment as to whether she satisfied that the TPD definition as at the date for assessment, and concluded on the balance of probabilities that she did.
Dr Westmore was called by Ms Hellessey to give expert psychiatric evidence at the hearing, as was Dr Durrell.

[47]

MetLife's third procedural fairness letter dated 11 May 2016

MetLife wrote a third procedural fairness letter dated 11 May 2016 to Ms Hellessey at her solicitors.
The letter referred to the solicitors' request on 18 December 2015 that there be a further review of MetLife's decision based upon the report of Dr Westmore.
Again, MetLife apparently enclosed a Claim Information Sheet, Further Index of material information, and a Further Information Summary of the information considered by MetLife in assessing/reconsidering the claim. These enclosures do not appear to be in evidence (although the equivalent documents for the fourth procedural fairness letter are in evidence).
A considerable part of the second procedural fairness letter dated 10 September 2015 was repeated although in a more detailed way.
The letter included a heading: "Prognosis at, and around, the Date for Assessment (1 March 2011)". There followed a summary of aspects of the early views expressed by Dr Durrell, Dr Falk, Mr Ward and Dr Bertucen, which expressed inconclusive opinions about Ms Hellessey's prognosis, but which suggested optimism.
The letter then continued: In MetLife's view there is evidence from around the Date of Assessment which is inconsistent with many of your symptoms as reported by Dr Durrell and presumably recorded by Dr Durrell during his clinical examination. Dr Durrell described that you reported suffering "high levels of social phobia", "avoidance" and "isolation". In April 2011 (within six weeks of the Date of Assessment) you were well enough to travel from Goulburn to Sydney (around 200km) to participate in the 2011 Royal Easter Show. Records produced by the Royal Agricultural Society of NSW show that you and an acquaintance (Ms Lorraine Cleary) in fact entered 8 horse/pony competitions at the 2011 Royal Easter Show. You won first place in 2 of the competitions you entered (Class: 160, Australian Pony Stallion, 4yrs & over 12.2hh & n.e 14hh and Class 177: Australian Pony Stallion or Colt, n.e 14hh) and second place in another. From the financial records provided we note the records relating to a bank account in the name "Mrs Bernadette C Hellessey" which is a Coles Mastercard account (your personal account). The records span the period 21 September 2011 to January 2016. MetLife notes the account is held in your name only and has assumed that most, if not all, of the transactions recorded on that account were made by you personally. If this is not correct, please advise us accordingly. In the period from 21 September 2011 to 18 October 2011 transactions are recorded at various locations including Kmart (Goulburn), Woolworths (Erina), Liquorland (Goulburn), Horseland (Wollongong and Fyshwick), 1st Choice (Wollongong) and Coles Supermarket at Goulburn. The latter was on 9 separate occasions. A generally similar pattern of transactions is recorded throughout the remainder of the records of this personal account. The level of activity is inconsistent with someone who was experiencing a "high level of social phobia", "avoidance" and "isolation" as Dr Durrell had recorded in June 2011. In his report of 8 May 2011, Mr Ward reported that the triggers of your PTSD included "anything police related (cars, uniforms, etc)". The Coles Supermarket you visited on 9 separate occasions between 21 September 2011 and 18 October 2011 (and on several subsequent occasions) is located only approximately 500 metres from the Goulburn Police Station. Prior to you opening your personal account, you operated a joint Police Credit Union Account with your husband named "PN & BC Hellessey" (your joint account). The records from your joint account show a similar pattern of purchases at locations in the Goulburn area as began to appear on your personal account when it was opened. In particular, in the month leading up to the date of assessment of your claim between 1 February 2011 and 28 February 2011, there were 7 transactions recorded at Coles Goulburn and 2 transactions at Kmart Goulburn. In the period 1 March 2011 to 31 March 2011 there were 7 transactions at Coles Goulburn and 5 transactions at Kmart Goulburn. Kmart Goulburn is located approximately 400 metres from the Goulburn Police Station. It would be reasonable to conclude that most, if not all, of the transactions recorded on your joint account at Coles and Kmart Goulburn in the month prior to and after the date of assessment were made by you due to the similarities in the patterns of purchases at these locations which subsequently began appearing on your personal account. If we are incorrect in this opinion, please advise us accordingly. In summary, the medical and other evidence leading up to and around 1 March 2011 does not provide proof to our satisfaction that you were unlikely ever to return to any work in the future within your education, training or experience (PTE).
Again, MetLife's letter demonstrates a view that the issue of whether Ms Hellessey had satisfied it that she was TPD was not only required to be determined as at the assessment date, but was required to be determined primarily from the perspective of what the evidence actually available at or around that date could establish.
The letter also demonstrates that MetLife had relied upon the information to which it referred to form its own opinion as to the relevant facts, as well as on the issue of whether Ms Hellessey misled or was not sufficiently frank with her treating doctors, and finally as to the significance of the evidence to the question of whether she was TPD.
MetLife stated directly that the evidence was inconsistent with many of Ms Hellessey's symptoms as reported by Dr Durrell. MetLife reached the conclusion that the evidence established that Ms Hellessey had misled Dr Durrell, without taking the trouble to enquire of Dr Durrell as to whether its conclusion was correct.
MetLife expressed the conclusion of fact that the activities that it outlined were inconsistent with someone who was experiencing a "high level of social phobia", "avoidance" and "isolation" as Dr Durrell had recorded.
MetLife also expressed the view that it was inconsistent with Ms Hellessey's reported PTSD symptoms being triggered by anything police-related that she attended supermarkets within 500 m and 400 m from the Goulburn Police Station.
Finally, MetLife expressed the conclusion that the medical evidence created at about the assessment date and the other evidence referred to did not provide proof to its satisfaction that Ms Hellessey was unlikely ever to return to any work in the future within her education, training or experience.
MetLife did not have, or seek, any expert medical opinion to support the conclusions that it expressed in this part of its third procedural fairness letter.
It should be recalled that Ms Hellessey disclosed in her 29 December 2011 statement of Education Background (par 169 above) that she had a special interest in horse breeding and showing, and that she belonged to horse associations and clubs. In his 29 September 2013 report, Dr Durrell responded to the evidence of Ms Hellessey's Facebook posts and various of her horse related activities, including attending the Royal Easter Show and even the Redfern Mounted Police Unit, in a way that explained at some length why those activities were not inconsistent with Ms Hellessey having the PTSD and depressive symptoms that she reported, and were not inconsistent with her being TPD. In Mr Ward's 7 May 2013 report he said that: "Ms Hellessey has reported to me on numerous occasions that if she does participate in social activities she has 'safety behaviours' which enable her to get through an activity provided that she is carrying out the safety behaviour. There is numerous research regarding social anxiety / phobia in which safety behaviours are referenced". In the same report Mr Ward recorded that Ms Hellessey had stated to him that she does feel more comfortable with horse people, and that: "Ms Hellessey has attended the Royal Easter Show all through our therapy; I do not consider this behaviour inconsistent with social phobia, as she appears to be in her comfort zone somewhat at this event".
On the evidence it does not necessarily follow that a person suffering from PTSD and Major Depression could not engage in the activities detailed by MetLife in this aspect of its letter, or that a person capable of engaging in these activities would in a real way be capable of obtaining and sustaining the relevant type of employment. MetLife's letter contains bare assertions that are not supported by any reasoning.
In its third procedural fairness letter, MetLife then set out summaries of medical evidence and incidents occurring after the date of the assessment, which it apparently considered to be significant.
In particular, MetLife made the following observations apparently based upon information that it obtained during the course of the proceedings following the order made by the court that permitted it to use the information: You also discussed your goals with Mr Ward in 2013. However, rather than attempting a return to work (as Dr Falk considered should be your goal), Mr Ward's clinical records for 12 February 2013 record that your goals for that year were to obtain a "TPD" payment and to "Sue!" It was recorded that you had already achieved one of your goals for the year which was to obtain lump-sum compensation under sections 66 and 67 of the Workers Compensation Act 1987.
The evidence contained 16 pages of transcriptions of Mr Ward's clinical notes, which appear to cover the period 29 March 2011 to 9 April 2013. The note upon which MetLife placed particular reliance in its third procedural fairness letter is part of an entry made by Mr Ward on 12 February 2013 in the following terms: Have been put on Seroque/at night. Zoloft put up to 250 mg. - Still try to get out each day - Lot of avoidance behaviours - haven't been to horse shows or anything, may go to one this weekend - Have some big shows coming up, go with 5 or 6 people so okay about that - Negative thinking and motivation low - Lots of car crashing dreams and trains - Fear, helplessness feelings in dreams - Goal this year • Finished TPD - termination • 66, 67 - done • Sue!
Albeit that this is a single example, it demonstrates the vice of being selective with evidence and relying upon evidence out of context. Mr Ward recorded that Ms Hellessey had been put on Seroquel at night and that her Zoloft had been put up to 250 mg. He recorded that she had negative thinking and her motivation was low, and she dreamt of cars and trains crashing. She had fear and helpless feelings in her dreams.
Significantly for MetLife's case that Ms Hellessey misled her treating doctors by not telling them about her activities with horse shows, Mr Ward recorded being told that Ms Hellessey may go to one that weekend and that: "Have some big shows coming up, go with 5 or 6 people so okay about that".
It is also significant that MetLife appears to think that the capacity to go to the occasional horse show in the company of a small number of close friends is ipso facto inconsistent with serious symptoms of PTSD and Major Depression, and demonstrates a capacity to work.
Mr Ward recorded that Ms Hellessey's goal that year was to "Finish TPD". The use of the word "termination" would appear to suggest that she wished the process to be completed. Ms Hellessey's application for the TPD benefit was made on 10 February 2012.
Mr Ward's notes show that Ms Hellessey made references to her activities with horses, including those she kept at her home, and more shows on 29 March 2011, 12 April 2011 ("Have some horses in Easter Show"), 12 April 2011 ("Easter Show with horses over Easter"), 3 May 2011 ("Mostly pre-occupied with Easter Show"), 27 June 2011, 19 September 2011 ("Horse shows coming up - Canberra"), 10 October 2011 (" Riding occasionally, preparation for horse show in Sydney, be up there for 3 days with horse friend"), 21 February 2012 ("Horse shows, will be attending"), 14 March 2012, 12 February 2013, 9 April 2013 ("Easter Show - families, same people - home people").
On 12 February 2013, Mr Ward did make the note "Sue!" The significance of that note is not at all clear. Ms Hellessey did not commence these proceedings until 18 August 2015. The implication in MetLife's third procedural fairness letter that Ms Hellessey had formed a conscious objective to gain a TPD payment from MetLife instead of attempting to return to work is entirely unjustified by the material relied upon.
Returning to the balance of the third procedural fairness letter, MetLife set out activities apparently disclosed by documents produced on subpoena in these proceedings, that from around August 2013 Ms Hellessey acted as the unpaid secretary of the Australian Palomino Horse & Pony Association; she was recorded as the Club Secretary and contact person for the Goulburn Pony Club; and that she had engaged in a number of activities associated with horses, including attending shows and what was called "Ride with Pride 2015".
MetLife expressed the view in relation to Ms Hellessey's role as secretary of the Australian Palomino Horse & Pony Association that it was "indicative of [her] possessing the functional capacity required to perform various activities which would also be relevant in several paid vocations, even on a part-time basis".
MetLife then again referred to Dr Hodgson's reports, and set out a detailed response to Dr Westmore's 9 December 2015 report, in the following terms: In your request for reconsideration, you provided a report from Dr Westmore dated 9 December 2015. Dr Westmore's report was based on his assessment of you on 19 November 2015. Dr Westmore reported that, considering your 'illness history', which included what he described as your ongoing functional impairment and modest response to treatment, that you had "very significant limitations in terms of [your] capacity for work". Dr Westmore concluded that your prognosis at the time of his assessment was poor. Dr Westmore further concluded that "on the balance of probability, I do believe that [the member] was, on 28 February 2011, being six months after she ceased work, unlikely ever to engage in any gainful profession trade or occupation for which she is reasonably qualified by reason of education, training or experience". MetLife makes several observations regarding Dr Westmore's report. Review of the letter of instructions from your solicitor to Dr Westmore suggests that he was not provided with certain significant information which MetLife considers relevant to consideration of your TPD claims. For example it appears Dr Westmore was not provided with the questionnaire of Dr Falk dated 10 March 2011 in which Dr Falk reported that he considered you were fit to return to work external to the NSWPF. Dr Westmore also does not appear to have been provided with the questionnaire of Mr Ward dated 18 May 2011. Mr Ward reported that you may be fit to return to work external to the NSWPF as a long as the duties you performed were "far removed" from policing. He also recommended that you participate in a vocational assessment. These are the two most contemporaneous opinions, from your treating GP and treating psychologist, to the Date for Assessment. In order for Dr Westmore to provide any reliable opinion about your prognosis at the Date of Assessment, which he has purported to do, he should have been provided with and reviewed that medical evidence. It also appears that Dr Westmore was not provided with the supplementary report of Dr Bertucen dated 17 August 2015. Dr Bertucen examined you on 30 August 2011. Further it appears that Dr Westmore failed to record, or you failed to report to him, activities which MetLife considers were relevant to considering your functioning around the Date for Assessment and also subsequently. These include, most notably, your participation in the 2011 Royal Easter Show and your subsequent role as secretary with the Association. If you did disclose these matters to Dr Westmore and Dr Westmore did not consider them to be relevant to his opinion, this ought to have been explained in his report. If you did provide Dr Westmore with a history regarding the matters identified above, please advise us accordingly. Importantly Dr Westmore examined you on 19 November 2015, that is, over four years after the Date for Assessment. This being the case, and especially in the circumstances where it appears Dr Westmore was not provided with significant medical evidence from your treating practitioners MetLife cannot give any significant weight to his retrospective prognosis.
A number of significant observations should be made about this aspect of MetLife's third procedural fairness letter.
First, it is clear that MetLife was concerned with Ms Hellessey's "prognosis at the Date of Assessment", rather than whether Ms Hellessey in fact suffered from an incapacity that rendered her unlikely ever to engage in any relevant employment. That is a different question to Ms Hellessey's prognosis on the basis of evidence restricted to that which was available at or around the date of assessment.
This is made clear by MetLife's decision that it could not give any significant weight to Dr Westmore's opinion because he examined Ms Hellessey over four years after the date for assessment.
MetLife also asserted that Dr Westmore's report was defective by reason that he had not been provided with the early questionnaires answered by Dr Falk and Mr Ward, and that he had not been given information concerning Ms Hellessey's participation in the Royal Easter Show and her role as secretary of the Australian Palomino Horse & Pony Association.
Dr Westmore in fact noted in his report that Ms Hellessey took her children and horses to shows, but she got someone else to show the horses.
Dr Westmore also referred in his report to Dr Durrell's 29 September 2013 report, in which Dr Durrell responded at length to the significance of Ms Hellessey having 667 friends on Facebook, her attendance at the Mounted Police Unit and several of her attendances at horse shows, including the Royal Easter Shows in 2012 and 2013.
Thus, not only did MetLife proceed upon the wrong question in its third procedural fairness letter concerning the evidence that was relevant to the question of whether Ms Hellessey satisfied the TPD definition as at the assessment date, but it also decided that it should not "give any significant weight to [Dr Westmore's] retrospective prognosis" based upon a seriously mistaken view as to the information of which Dr Westmore was aware when he prepared his report.
In its third procedural fairness letter MetLife then returned to dealing with Dr Durrell's report, and asserted that his opinion was inconsistent with those offered by Dr Falk and Mr Ward, as well as the independent specialists Dr Bertucen and Dr Hodgson. It then said: … As mentioned above, MetLife notes the inconstancy in Dr Durrell's description of your symptoms (upon which his prognosis is based) including "high levels of social phobia", "avoidance", and "isolation" with your participation in multiple horse competitions, your role as secretary with the Association and our analysis of your activities from your bank records.
This statement involved MetLife acting upon its own lay conclusion that the activities that it attributed to Ms Hellessey in the letter (which were based upon its own inferences of fact) were inconsistent with the symptoms of Ms Hellessey's PTSD and major depression reported by Dr Durrell.
MetLife then again referred to the vocational assessment report, and in particular Dr Bertucen's 17 August 2015 report. MetLife concluded this aspect of its letter with the observation: … MetLife notes that within 12 months of [Mr Ward's 19 November 2012] opinion, you had taken up your (unpaid) position as secretary of the Association and were engaged in numerous horse and pony shows or competitions, exhibiting a high level of social interaction.
The validity of this assertion depended on the correctness of MetLife's conclusion that the evidence to which it referred demonstrated that Ms Hellessey had engaged in a high level of social interaction. That conclusion was apparently formed by MetLife without the assistance of any expert medical opinion.
For completeness it should be noted that MetLife stated that Ms Hellessey was 34 years old at the date of assessment and therefore had a further 33 years before she reached retirement age "in order for you to regain a capacity for suitable employment".
It will be noted that in none of the documents produced by MetLife did it address the issue of what processes would have to occur before Ms Hellessey regained a capacity for suitable employment.

[48]

Communications after MetLife's third procedural fairness letter

On 30 May 2016, within the 28 day period allowed by MetLife's third procedural fairness letter, Ms Hellessey's solicitors provided a comprehensive written response. The letter contains a detailed response to the conclusions expressed by MetLife in its letter, including as to the significance of the vocational assessment report, the various medical reports, Ms Hellessey's participation in shows, the Ride with Pride event, her attendance at the Mounted Police Unit, and her going to the shops.
I will not set out the solicitors' response in detail but will note that it explained and gave context to the evidence referred to by MetLife. The explanation was consistent with the evidence of the lay witnesses served by Ms Hellessey in the proceedings. As just one example, the letter explained that the shopping centres in Goulburn that MetLife had referred to were located in places from which Ms Hellessey could not even see the Police Station.
Importantly, the solicitors pointed out that Dr Westmore did have in his possession extensive reports from Dr Durrell.
Further, the solicitors set out in full the conclusion I expressed in Wheeler (above) at [48] concerning the relationship between the symptoms of chronic PTSD and major depressive disorder and the capacity of the sufferer to obtain and maintain employment.
Additionally, the solicitors included extracts of my judgment in Wheeler at [42], [45] and [249], concerning the time it might take before it can be determined that the psychological injury caused by PTSD and major depressive disorder was chronic and permanent as at the assessment date, leading to the conclusion in [249]: "The question is whether the insured person is in fact incapacitated in the relevant way, and all evidence probative of the question that is brought into existence between the date of assessment and the date of determination must be taken into account". The solicitors said: "In accordance with Wheeler, we submit that the comments made by Dr Falk and Mr Ward are not a sufficient basis for a finding that our client is not Totally and Permanently Disabled in accordance with the definitions".
On 27 June 2016, Ms Hellessey's solicitors provided to MetLife's solicitors a further report of Dr Westmore dated 20 June 2016, in which Dr Westmore addressed some of the concerns expressed by MetLife in its third procedural fairness letter.
This report recorded that Dr Westmore had been given Dr Falk's 10 March 2011 report, Mr Ward's 18 May 2011 report, and Dr Bertucen's 17 August 2015 report. Dr Westmore noted the part of Dr Durrell's 29 September 2013 report in which the doctor said that Ms Hellessey followed his advice to maintain as much as possible her horse related activities. Dr Westmore referred to the opinions expressed by Dr Bertucen in his 17 August 2015 report to the effect that it was likely that Ms Hellessey would be able to engage in the occupations identified in the vocational assessment report, and observed: I would note that I strongly disagree with Dr Bertucen's opinion in this regard and indeed the course of her illness and functional impairment is not consistent with his optimistic prognosis regarding her capacity to work.
Dr Westmore referred to being advised of the nature of Ms Hellessey's participation in horse shows, being limited to feeding, watering and saddling horses, brushing manes and applying make-up in preparation for competitions and that these activities were performed away from people. He noted information received concerning Ms Hellessey's participation in the Ride with Pride event, her attendance at the Mounted Police Unit, and her occasionally going to shops and the like, her participation as the secretary of a horse and pony association, being limited to such matters as signing and sending membership cards and printing and mailing the newsletter. Dr Westmore concluded: You ask whether any of these activities are inconsistent with the diagnoses made by myself and other psychiatrists. The answer to that question is no. Activities you report are extremely limited, particularly if one considers that before she became unwell she was able to function normally in society without any restrictions whatsoever. A number of the activities described are activities which could be done in isolation, away from others and without the need to interact with others. … None of the further reports or instructions and none of the activities outlined in the additional instructions cause me to alter any opinions expressed in my previous report, 9 December 2015, nor do those matters lead me to conclude that her activities, as described, would be inconsistent with the diagnoses I made in my report of that date.
On 7 July 2016, Ms Hellessey's solicitors wrote a letter to MetLife's solicitors, which is relied upon in par 24T of the amended statement of claim, as having informed MetLife that its failure to determine the claim was a constructive rejection of the claim. The solicitors said: I refer to my client's upcoming neuropsychologist appointment on 13 July 2016 and note that your client has had ample opportunity to make a final decision in relation to my client's claim. Therefore, my client demands a final decision on her claim by close of business on 19 August 2016. Should a decision not be forthcoming by this time, this will be considered a deemed refusal of my client's claim, and my client will have her matter referred to the Claims Review Committee as a matter of urgency. [Emphasis in original]
Again, the consequence of any failure by MetLife to comply with the deadline given would be the revival of the application to the Claims Review Committee.
The second letter referred to in par 24T of the amended statement of claim is a letter dated 24 August 2016, in which Ms Hellessey's solicitors advised the Trustee's solicitors: I refer to my letter to the solicitors for the Second Defendant dated 7 July 2016, where I put the Second Defendant on notice that my client required a determination of her claim by 19 August 2016. I confirm that the claim has not been determined. The failure to determine the claim, despite having sufficient evidence to do so, constitutes a rejection of the claim. My client now requests that her matter be considered by the CRC at the next opportunity…
Notwithstanding this letter, Ms Hellessey's solicitors wrote a further letter to the solicitors for MetLife on 14 September 2016, which enclosed a report of neuropsychologist, Dr Peter Rawling, dated 8 August 2016. The letter included the following statement: I again invite the Insurer to accept my client's claim. My client demands a final decision on her claim by close of business on 30 September 2016. Should a decision not be forthcoming by this time, this will be considered a deemed refusal of my client's claim, and my client will request that her matter be referred to the Claims Review Committee as a matter of urgency, noting my client's previous request to have her matter referred on 24 August 2016. [Emphasis added]
Then, on 26 October 2016, Ms Hellessey's solicitors wrote another letter to the solicitors for MetLife with which they enclosed, by way of service, a medical report of Dr Durrell dated 20 October 2013.

[49]

MetLife's fourth procedural fairness letter dated 31 October 2016

MetLife sent a fourth procedural fairness letter to Ms Hellessey at her solicitors on 31 October 2016.
MetLife commenced by referring to Ms Hellessey's solicitors' 18 December 2015 letter seeking a reconsideration of her claim and providing the first report of Dr Westmore.
It then noted that MetLife agreed to reconsider the claim subject to considering the information produced in the present proceedings in this court.
MetLife then referred to its third procedural fairness letter dated 11 May 2016, Ms Hellessey's solicitors' submissions dated 30 May 2016 and 14 September 2016, Dr Westmore's report dated 20 June 2016, the report served on behalf of Ms Hellessey by Mr Peter Rawling dated 8 August 2016, a further report of Dr Falk dated 30 November 2011, and a further report of Dr Durrell dated 20 October 2013.
The letter then listed further documents that had been produced under subpoena since 11 May 2016 by entities associated with Ms Hellessey's activities related to horses, as well as further Facebook records produced by Ms Hellessey.
MetLife also referred to unsuccessful efforts made by MetLife's solicitors to locate and serve a subpoena issued on 19 January 2016 on Dr Durrell.
MetLife then referred to other information, including in particular a report of Professor Richard Mattick dated 13 July 2016, which it said it received on 20 September 2016.
The letter then stated: This letter and the accompanying information should be considered in addition to the information already provided by MetLife and the submissions made in our letters of 22 December 2014, 19 October 2015 and 11 May 2016. Our letters are intended to address all of the evidence (including the S&G submissions) which has been provided, obtained and produced for the purpose of MetLife's reconsideration of your claims.
It is clear from this aspect of the letter that MetLife conveyed that it was still relying upon the considerations set out in its first and second letters rejecting Ms Hellessey's claim (and thus the first and second procedural fairness letters), as well as its third procedural fairness letter.
It will therefore be appropriate for the court to consider the adequacy of MetLife's third rejection of Ms Hellessey's claim, which was issued on 30 November 2016, on the basis that MetLife was still actuated by all of the matters set out in the preceding correspondence that it issued, unless the contrary appears from the terms of the fourth procedural fairness letter and the third rejection.
The justification for this conclusion is reinforced by the terms of the Further Information Summary that was enclosed with the fourth procedural fairness letter, as it appears to have listed and summarised all of the earlier information available to MetLife, and indicated the new information by means of an asterisk.
As had been the case for its earlier procedural fairness letters, early in the fourth letter MetLife began by setting out aspects of the vocational assessment report dated 21 August 2012, that has been considered above. In relation to the report, MetLife stated: S&G have challenged the nature and extent of your pre-injury employment identified in the Injury Treatment Report (IT Report) and we address this below. We are not persuaded that it would be unsafe or unreasonable to rely on the IT Report.
MetLife returned to the issue of what it called the "Vocational Evidence" later in the letter, and I will come to that in due course.
MetLife then considered Ms Hellessey's "Prognosis at, and around, the Date of Assessment". MetLife set out substantially the same summaries, as it did in its third procedural fairness letter, of the early opinions expressed by Dr Durrell, Dr Falk, Mr Ward and Dr Bertucen. The latest of these opinions was Dr Bertucen's on 30 August 2011. All of the opinions were consistent with the possibility that Ms Hellessey would be able to work outside the Police Force in the future.
MetLife then dealt with the topic "Further information now available". It started by noting Dr Durrell's opinion in his 17 June 2011 report, repeated in his 1 June 2012 report, based upon symptoms reported by Ms Hellessey as "high levels of social phobia, avoidance, isolation, low confidence [and] panic attacks".
MetLife then said that it knew Ms Hellessey's activities around the date for assessment included various attendances at shows associated with horses (including the 2011 Sydney Royal Easter Show), and various Facebook entries concerning Ms Hellessey's attendances at those shows.
Then, under the heading "Your Activities After The Date Of Assessment", MetLife listed a number of similar activities that were in addition to the activities listed in its 11 May 2016 third procedural fairness letter. MetLife stated: "We address later in this letter the S&G "explanation" regarding those activities and why we are not persuaded by the explanation that they should be disregarded".
The letter then dealt with Ms Hellessey's involvement with the Australian Palomino Horse & Pony Association, her being club secretary of the Goulburn Pony Club, her attendance at other horse-related competitions, events and shows, her involvement in what was called "Fairymead Show Horses" (Fairymead), and finally what were called "Registration Activities".
In relation to Ms Hellessey's involvement in the Australian Palomino Horse & Pony Association (which was dealt with at page 6 of the third procedural fairness letter) MetLife observed that the first occasion upon which Ms Hellessey's involvement with this association had been documented in any of the medical evidence was in Dr Westmore's supplementary report dated 20 June 2016.
Then in relation to the Goulburn Pony Club, MetLife recorded that Ms Jackie Waugh, the president of the club, had advised that in November 2015, at the Annual General Meeting, Ms Hellessey had "put [her] hand up to offer to take over the Secretary position". The minutes of the meeting confirmed that Ms Hellessey was assigned the tasks of newsletter, Facebook, certificate coordinator and bank signatory. In January 2016 Ms Hellessey informed the club that she could no longer fill the role and resigned.
MetLife observed that Dr Westmore's report of 19 November 2015, unlike his report of June 2016, made no reference to Ms Hellessey's "volunteering" activities with the club.
MetLife returned to this subject later in the letter when it dealt with Ms Hellessey's solicitors' response.
In relation to "Other Competitions, Events and Shows", MetLife listed further information which it described as follows: The further information indicates that your attendances and travel to various horse shows and related events (including interstate shows) is far more extensive than you had previously disclosed and involved a far higher degree of social interaction than you have reported".
There are two aspects of this observation. The first is one of fact, being the participation in more horse shows and related events than had previously been disclosed. The second issue is material to an understanding of what the nature of Ms Hellessey's involvement was, in so far as it was said to be "a far higher degree of social interaction than you have reported".
MetLife then listed 44 separate events over the period 13 August 2011 to 28 March 2016 (according to my count, where I have inferred that in some cases separate listings refer to the one event). In each year for the balance of 2011 to March 2016 there were, according to my count, 4, 7, 12, 8, 8 and 5 events. All of the events related to various shows, and although only some of the shows were specifically related to horses, I infer that Ms Hellessey's involvement related to horses in each case. The times between successive shows range, approximately, from about four months to a couple of days. In many cases the interval between shows is one or two months. It appears that the number of shows that were held were seasonal.
It must also be noted that in a number of cases MetLife was able to connect a Facebook post apparently made by Ms Hellessey to a particular show. Generally, those Facebook posts suggested that Ms Hellessey was having a very good time. I will only set out a couple. In relation to the 2012 Sydney Royal Easter Show Ms Hellessey posted on Facebook: "love being at Sydney Royal!! Fun fun fun!" On 25 May 2013, Ms Hellessey posted: "It was fabulous to see some of the most amazing people I know! Thank you one and all for the hugs and smiles". On 16 October 2014 in relation to the NSW All Welsh Show at Sydney International Equestrian Centre, Ms Hellessey posted: "chilling out with lovely people a beer or six". The many other Facebook posts were generally to the same effect.
MetLife then dealt with the Fairymead issue by saying: From information produced MetLife considers that, at least in the period 5 January 2011 to 24 June 2015 you were involved with 'Fairymead Show Horses / Stud" (Fairymead) and in 2013, you were referred to as acting as the Owner/Manager of Fairymead.
MetLife then listed various horse related activities in relation to which Ms Hellessey was involved in respect of an entity with the name "Fairymead". For example, MetLife observed: MetLife also notes that Fairymead Show Horses was listed as a sponsor / supporter of the 2013 Country Kids Foal and Youngstock Show; the 2013 Show Horse Magazine Australia All Breeds Foal and Youngstock Show, the 2015 Goulburn Plaza Show and the NSW Arabian Horse Association Inc.
MetLife then dealt with what it called "Registration Activities", in relation to Ms Hellessey's acknowledgement that she entered horses which she owned and co-owned in various events or competitions. MetLife said that it had reviewed the documents produced under subpoena by the Welsh Pony & Cobb Society of Australia, and considered that the records indicated that: "the paperwork/documentation and communication with the Society required to register these horses for competition, is relatively extensive". Ms Hellessey "undertook the task of completing the necessary forms, obtaining the necessary documentation and communicating with the Society on behalf of the co-owner".
MetLife then turned to deal with "Further Independent Assessments", being the supplementary report of Dr Westmore dated 20 June 2016, a report of Professor Mattick dated 13 July 2016, and the report of Mr Peter Rawling dated 8 August 2016. As to Dr Westmore's supplementary report, MetLife stated: This report was provided 'on the papers' and Dr Westmore reported that his instructions included the following, In your letter of instruction to me you advised that Ms Hellessey has had limited participation in horse shows, her activities are limited to feeding, watering and saddling horses, brushing manes and applying make-up for competitions. You should note that these activities are performed away from people. Dr Westmore reported that you were the Secretary of the Association but your duties are limited to signing and sending membership cards to members although [you have] twice been responsible for printing and mailing the newsletter.
MetLife stated that Dr Westmore's supplementary report should not be given any considerable weight on the following basis: As discussed above, the records produced by the Association indicate that your role as Secretary included more duties than those disclosed to Dr Westmore. It is not clear if Dr Westmore was instructed that you had performed the role since August 2013. Dr Westmore also does not record in this report (or his initial report) your involvement with Fairymead between January 2011 and June 2015 and/or information about your involvement with the [Goulburn Pony Club]. We acknowledge your advice that by June 2016 your involvement had ended. We do not accept the representation that you "had limited participation in horse shows" is an accurate description of the extent and nature of your participation in horse shows. There are material deficiencies in the history provided to Dr Westmore and MetLife considers his supplementary report should not be given any considerable weight.
Thus, MetLife stated a conclusion of fact that Ms Hellessey's representation that she had limited participation in horse shows was not accurate and that there were material deficiencies in the history provided to Dr Westmore.
MetLife then dealt with the report of Professor Mattick dated 13 July 2016. It noted that Professor Mattick "accepted that there was sufficient evidence to support a diagnosis of either Adjustment Disorder or PTSD and concluded that the appropriate diagnosis was probably PTSD".
MetLife then summarised the findings of Professor Mattick in relation to a number of tests that he administered to Ms Hellessey on 13 July 2016 that caused him to conclude that Ms Hellessey was "exaggerating [her] degree of emotional disturbance" and the "symptoms of [her] alleged emotional disturbance".
Prof Mattick, who was retained to provide a report to MetLife, concluded that he thought that there would be an improvement to Ms Hellessey's psychological symptoms and intellectual ability and functioning, and that she was not incapacitated to such an extent as to be TPD.
MetLife then dealt with the report of Mr Rawling dated 8 August 2016. It noted that Mr Rawling had diagnosed Adjustment Disorder with Anxiety and Depression, rather than PTSD.
MetLife concluded: Although Mr Rawling referred to your Facebook records, there is no evidence (it is not listed in the index of documents instructed to Mr Rawling) that he was provided with the extensive Facebook records available and was therefore is fully aware of the extent of your activities. Mr Rawling has taken (or been provided with) an inaccurate history about your involvement with Association and the [Goulburn Pony Club] and especially since your secretary duties began in August 2013. There is also no evidence that Mr Rawling was provided with any details or provided with the history of your involvement in the period January 2011 at least until June 2015, with Fairymead. There are material deficiencies in the history provided to Mr Rawling and MetLife has taken this into account when determining the weight to be given to the report.
The fourth procedural fairness letter therefore stated that Dr Westmore's supplementary report should not be given any considerable weight, and by implication that the report of Mr Rawling would be given less weight because of MetLife's opinion that both were given inaccurate histories or other instructions.
MetLife then returned to the vocational evidence, and in particular noted that Mr Ward's report of 19 November 2012 had rejected other vocational options because they involved a degree of "interpersonal interactions". MetLife concluded: As the further information has now revealed, within 12 months of that recommendation you had taken up your (unpaid) position as Secretary of the Association; were engaged in and/or attending numerous horse and pony shows or competitions; exhibiting a high level of social interaction and had continued your involvement with Fairymead.
MetLife then responded to Ms Hellessey's solicitors' submissions. It is not necessary to set out all of the responses. MetLife responded to the submission made about the significance of Ms Hellessey's high levels of social phobia, avoidance, isolation, low confidence and panic attacks. It acknowledged that engagement in normal interest pursuits does not necessarily correlate with the capacity to engage in employment, but in relation to the opinions expressed by Dr Durrell in his reports of June 2011, June 2012, 23 December 2011 and 16 February 2013, MetLife observed that those reports made no mention of Ms Hellessey's attendances at the 2011 Royal Easter Show, the various other shows and events, and her frequent attendances at shopping centres, including those outside Ms Hellessey's local area. MetLife concluded: MetLife considers that your regular and numerous attendances and travel to shows and events is a relevant consideration when testing your assertions of social avoidance. The activities are not of any lesser merit if you did not personally compete in the shows any attempt to downplay them is misguided. The extent of your activities alone is inconsistent with any claims or assertions that you were, essentially, socially avoidant.
In my analysis of MetLife's fourth procedural fairness letter, I have noted that in various places MetLife has stated its own view as to the significance of the evidence it obtained concerning Ms Hellessey's Facebook posts, her attendance at horse shows, and her involvement with horse clubs. The statement extracted immediately above, however, puts the position taken by MetLife at its highest, in that MetLife expressed the view that even if Ms Hellessey's participation had all of the limitations that she asserted (which will be explored in more detail later), that did not matter because the suggestion that the activities were of any lesser significance was an attempt to downplay them, which was according to MetLife misguided.
MetLife went so far as to say that "the extent of your activities alone" was inconsistent with her claims that she was socially avoidant, irrespective of the quality and nature of her activities.
MetLife then disposed of the solicitors' submission concerning the significance of Ms Hellessey's shopping activity by saying: The S&G Submissions seek to attribute the identified shopping transactions to your husband. That may or may not have been the case however it seems that you have regained the ability and capacity to attend as Dr Westmore, Mr Rawling and your husband report.
The relevant part of Ms Hellessey's solicitors' submission, in their 30 May 2016 letter, was: Furthermore, the Coles MasterCard is carried by Paul Hellessey, the Plaintiff's husband. He is responsible for the majority of the shopping and was responsible for the majority of the shopping at the relevant time. My client cannot recall if it was her, or her husband, or both her and her husband who attended the shops on these occasions, almost 5 years ago. Given that Mr Hellessey was the carrier of the card, and was responsible for the majority of the shopping, it is likely that Mr Hellessey completed these transactions and not my client. It is needless to say that the shopping centre's proximity to the police station is irrelevant. Ms Hellessey cannot see the police station from inside the shopping centre, and does not need to pass the police station to get to the shopping centre. The supermarket is on Auburn Street. The Police Station is on Sloane Street, which is parallel to or Auburn Street.
This submission was in response to a complicated argument put by MetLife at page 5 of its third procedural fairness letter, in which it had purported to deduce from transactions in relation to a Coles MasterCard account in Ms Hellessey's name, and a joint Police Credit Union Account in the name of Ms Hellessey and her husband, that Ms Hellessey had made numerous transactions on her own account using both cards.
The import of MetLife's response was to dismiss the solicitors' submission on the basis that it "may or may not have been the case", and the suggestion that reports by Dr Westmore, Mr Rawling and her husband demonstrated that she had regained the ability and capacity to attend to shopping.
Dr Westmore said in his 9 December 2015 report: "She said the psychiatrist has encouraged her to go to the shops on a daily basis to try and get her out of the house. She tries to do this, "but I don't go out of my way to talk to anyone…" She said if she sees a person she knows in the shops or a friend, she will turn and walk another way "and now I'm abusing them as well"."
Mr Rawling said in his 8 August 2016 report that he was told by Ms Hellessey's husband: She would occasionally drive the children to the bus stop or take them all the way to school. Then she might do some shopping and have a coffee but she did not like to spend a lot of time in town. He confirmed that when shopping, she would often forget items on her list and said that as a result, he was now in the habit of texting her before he left work for home to see if there was anything he needed to pick up.
I have not been able to find anything in the reports of Dr Westmore and Mr Rawling, or anything said by Paul Hellessey, to support the conclusion expressed by MetLife that Ms Hellessey had regained the ability and capacity to attend to shopping in any remotely normal way.
MetLife then responded to Ms Hellessey's solicitors' submission concerning her involvement with the Palomino Association.
That submission was: My client's role with the Association it is to post member cards and general information. Ms Hellessey will receive the membership application form by mail. She has cardboard membership cards at home. There are around 20 members of the Association in total. Every three months, Ms Hellessey will receive up to 5 applications. Processing these applications will take approximately 5 minutes. She will sign the card where it says 'Secretary' and post it to the new member. Additionally, in December 2014 and June 2015, Ms Hellessey was responsible for printing and posting the newsletters which her husband had created. She does these tasks from the comfort of her home, at her own pace. She is not required to see and interact with other people. These are the limits of my client's duties. It is in no way demonstrative of a capacity to perform part-time duties within my client's education, training and experience on the open labour market…
MetLife's response was: MetLife prefers the objective evidence produced by the Association under subpoena which includes the Minutes of Meetings. These indicate that at various stages since 2013 your role with the Association included looking after the Association's website, handling membership and general enquiries, being responsible for the Association's Newsletter and publicity, and 'Pointscore'.
The evidence on this subject produced on subpoena included a letter by a member of the Association to the Registrar of the Court. The letter referred to the Association as having had two meetings for which minutes were enclosed. The letter stated: "Bernadette Hellessey is the Secretary of the Association, this is a voluntary position with no remuneration as the Association is only small with very few members". The minutes of the Association for 31 August 2013 show that it was the inaugural general meeting of the Association, and was attended by seven persons. Three persons gave apologies. Ms Hellessey was made secretary. It was agreed that she would be responsible for the website with another person helping. Ms Hellessey is also recorded as being responsible for "Membership/general enquiries" with two other persons. She was also to be responsible for "Newsletter/Publicity". Ms Hellessey is recorded as having given her apologies for the second meeting on 22 March 2015.
MetLife then dealt with the solicitors' submission concerning Ms Hellessey's involvement with the Goulburn Pony Club. They had submitted that Ms Hellessey had never been the club secretary, which MetLife said was not true. MetLife then said: We note Mr Rawling recorded you succumbed to pressure from a friend and agreed to become Secretary of the [Goulburn Pony Club] from January 2016 and ceased after a month due to an inability to cope. This is inconsistent with the actual records of the [Goulburn Pony Club].
The information produced by the Club included a letter from its president which said: Bernie Hellessey and her children transferred to the Goulburn Pony Club back in 2009 and since then have been inactive members, until 2013 when they attended a couple of events over that year. It was only at the end of last year at our AGM in November 2015, that Bernie put her hand up to offer to take over the secretary position when we had no one else to take it on. It was in January 2016 that Bernie informed me that she could not fill the role anymore of secretary and resigned. I have attached copies of the last couple of meetings that cover Bernie's involvement within our Club, which is very limited.
The minutes of the Club's AGM held on 8 November 2015 record that Ms Hellessey was appointed secretary. She and another person were given responsibility for Facebook, Ms Hellessey was made certificate coordinator, and she and two others were made bank signatories.
The minutes of the Club for 10 February 2016 record that, as there was not a quorum, the meeting involved only a discussion. One of the matters recorded was: "Bernie has resigned as secretary".
The minutes of the next general meeting of the Club, held on 6 April 2016, recorded as business arising from previous minutes: "Bernie Hellessey resigned from the position of Secretary". Accordingly, Ms Hellessey was technically the secretary of the Club for about three months. She resigned because she could not fill the role. The president's letter indicated that her involvement was very limited.
When the objective evidence available to MetLife is reviewed carefully, it does establish that in a nominal way Ms Hellessey was the secretary of the Club for a short time, and that she was assigned certain duties. The evidence does not, however, support any conclusion that in a substantial or thoroughgoing way Ms Hellessey had engaged in administrative and social activities.
MetLife then restated its position in relation to "Equine activities generally", that the assertions made by Dr Durrell and Dr Westmore concerning the limited nature of Ms Hellessey's participation with horses in the various shows by saying: "As noted, and considering the extent of the activities which we are now aware of having been reported on Facebook and otherwise, these assertions are inaccurate".
MetLife responded to the solicitors' submission concerning the reliability of the vocational assessment report by saying: The challenge to Mr Everett's understanding of the transferable skills you obtained while employed by the NSWPF is based on the assertion that you have reduced functional capacity because of your social phobia. We have indicated above that we do not accept the claim social phobia. While Mr Rawling concluded the vocational options identified were "highly questionable" because they only took into account your transferable skills and the local labour market; and not your psychological disorder. MetLife does not accept this submission.
It is true that one of the reasons proffered by the solicitors as to why the vocational assessment report was unreliable was that it did not sufficiently take into account Ms Hellessey's social phobia. However, MetLife's assertion understated the breadth of the submission that had been put by the solicitors, which was in the following terms: Mr Everett asserts that my client has acquired communication skills, administration skills, computer skills, research skills, logistic skills, and case management skills. Again, Ms Hellessey suffers from social phobia. She avoids contact with other people whether it be by telephone, or day-to-day societal interactions, like speaking to a shopkeeper. Ms Hellessey suffers from paranoia, and can often overreact to or misinterpret what is said to her. Ms Hellessey's symptoms cause a significant reduction in her functional ability, and as such she is not able to meaningfully help her children with their homework and has difficulty performing simple mathematics. I remind you that my client suffers from unstable moods, and panic attacks, as well is aggressive outbursts and sadness.
MetLife then noted, as was true, that Mr Everett had recorded that Ms Hellessey had been diagnosed with PTSD and said that: "consistent with the main symptoms you assert prevent you from working, Mr Everett recorded": Ms Hellessey states that as a result of the injury she is isolating herself socially as she does not want to interact with others and she does not enjoy the interaction.
Apart from the fact that this understates the width and severity of the symptoms reported by Ms Hellessey, a careful reading of the vocational assessment report does not support any suggestion that Mr Everett considered whether he should rule out any of the occupations that Ms Hellessey may have had the education, training or experience to engage in because she did not have the psychological capability to undertake those occupations.
Mr Everett did discount roles that involved the use of weapons, because of Ms Hellessey's traumatic experience of having a loaded weapon pointed to her head, and accordingly excluded roles such as security officer and national parks worker.
There is force in the final observation made by Mr Rawling in his 8 August 2016 report: … No account whatsoever was taken of her psychological disorder and this being the case, the validity and usefulness of the employment options identified would seem to me to be highly questionable.
In my view it is also significant that there was no reference in the vocational assessment report to the significance of Ms Hellessey's continuing need for medication, particularly the use of Valium on a vrn basis. I will return to this issue below.
MetLife responded to Dr Westmore's observation in his 20 June 2016 report that he "strongly disagreed" with Dr Bertucen's conclusion because Ms Hellessey's "illness and functional impairment [was] not consistent with his optimistic prognosis regarding [her] capacity for work." MetLife considered that opinion flawed in so much as Dr Westmore was not provided with a full or accurate history.
Finally, MetLife responded to the further evidence served by Ms Hellessey's solicitors, being the report of Dr Falk dated 30 November 2011 and Dr Durrell's report dated 20 October 2013.
Dr Falk's 30 November 2011 report is a hand written one, without an addressee, in which the doctor stated: This is to certify that due to ill health it is unlikely that BERNADETTE HELLESSEY can ever be gainfully employed in (sic) capacity for which she is reasonably qualified because of education experience or training. Yours sincerely Paul Falk
There were two aspects of MetLife's response to this additional statement by Dr Falk. The first was: The report does not contain any explanation or rationale for his opinion. Dr Falk does not explain what caused him to offer a different opinion to that he provided on 10 March 2011. In that report he considered you were fit to work external to the NSWPF.
It should be recalled that earlier in the fourth procedural fairness letter (page 4), MetLife relied upon Dr Falk's 10 March 2011 response to a questionnaire to the effect that in his opinion Ms Hellessey was fit for work external to the NSW Police Force. In that earlier report, Dr Falk had simply inserted a hand-written "yes" to a typed question, without any explanation for his opinion. It is true that Dr Falk did not give any explanation for his change of view between March and November 2011. However, MetLife appears to have continued to act on the basis of the earlier unexplained opinion, while entirely dismissing the latter one.
As I have explained above in relation to a number of the aspects of the evidence relied upon by MetLife, including the second reports of Dr Bertucen and Dr Hodgson, MetLife was content to accept unexplained statements of opinion that Ms Hellessey was not TPD, while it has rejected an unexplained statement of opinion that she was TPD, as well as a number of other fully reasoned explanations as to why she was TPD.
The second response provided by MetLife was to say that: "Dr Falk's report was most likely directed to assisting the member with the taxation treatment of her HOD payment from NSWPF". No evidence was given to support that conclusion. It implies that Dr Falk was prepared to express a false opinion in order to support Ms Hellessey's taxation treatment. That was an inappropriate claim to make without evidence. Even if it were true, it would undermine the legitimacy of MetLife relying upon Dr Falk's earlier opinion.
MetLife then dealt with Dr Durrell's 20 October 2013 report.
First, MetLife observed, probably correctly, that the report was prepared for purposes other than Ms Hellessey's claim for payment of the TPD benefit, and is directed to considering the conduct of the NSW Police Force in not adequately supporting Ms Hellessey in relation to the events that caused her psychological injury. MetLife conceded that the report related to Ms Hellessey's symptoms and level of functioning and prognosis. It extracted parts of the report that focused on Ms Hellessey's social avoidance, and repeated Dr Durrell's observation that in his view Ms Hellessey was TPD. It concluded: In fact, at the time Dr Durrell wrote that report, you had recently taken on the position of Secretary of the Australian Palomino Horse and Pony Association after attending the Association's meeting on 31 August 2013. Dr Durrell did not record this history. Nor did Dr Durrell record your involvement with Fairymead.
Thus, MetLife discounted the whole of Dr Durrell's report based upon the significance that it attributed to Ms Hellessey being the secretary of the Palomino Association and her involvement with Fairymead.
Dr Durrell's report was, unsurprisingly, consistent with all of the other reports that he prepared over the years. As I have extracted substantial parts of the other reports above, I will only set out particularly pertinent parts of this report here. Although it was prepared on 20 October 2013, it must be presumed that it was read carefully by the author of MetLife's fourth procedural fairness letter (dated 31 October 2016). Dr Durrell said: Ms Hellessey has persistent and disabling mental symptoms directly related to her past NSWPF employment. These mental symptoms persist despite her medical retirement from the NSWPF in 2011. … [Dr Durrell listed 23 attendances with Ms Hellessey between 5 October 2010 and 20 September 2012, the last being only a month before his report]. … Ms Hellessey's chronic PTSD is of quite a severe rating and she is prone to regular and unpredictable acute exacerbations and acute relapses. There are a number of persistent and disabling symptoms that include panic attacks, social avoidance, increased baseline level of anxiety, flashbacks and re-experiencing deviations and memories related to the firearm incident with 'Phil'. … Unfortunately Ms Hellessey's PTSD symptoms have been resistant to a number of trials of psychotropic medication including Avanza, Zoloft, Luvox and Efexor. Ms Hellessey was prescribed increase doses of Zoloft. I gradually increased the dosage to 250mg daily. Unfortunately a number of breakthrough anxiety symptoms and panic attacks signalled that Ms Hellessey was becoming tolerant to high dose Zoloft. Over recent months I have changed her medication to Cipramil. Currently the dosage is at 20mg daily and she is tolerating this medication reasonably well. Unfortunately there are a number of cognitive side effects which include some level of confusion and light headedness. These side effects appear to be settling. Ms Hellessey requires regular use of prn Valium 2.5-5.0mg when attending social events including her horse showing and horse related activities. In fact the horse related activities represent a therapeutic island of reasonable social and recreational functioning. Therefore these are very important for her rehabilitation in the long term. Ms Hellessey's involvement in horse related activities provide her with some distraction away from her PTSD symptoms. There is a therapeutic effect in terms of her involvement in horse related activities. Myself and her clinical psychologist, Rodney Ward, have regularly promoted and supported her ongoing involvement in these activities. Ms Hellessey's PTSD symptoms and secondary depressive symptoms are very disabling in terms of many aspects of her interpersonal and intrapersonal functioning. … I also identified at that early stage and subsequently confirmed on numerous occasions that Ms Hellessey is not capable of returning to the workforce in any capacity. Looking towards the future I think it is highly unlikely that Ms Hellessey will gain any stable level of remission that would allow her to re-enter the workforce even in a part-time or casual capacity in a low stress position. … Unfortunately the numerous trials of psychotropic medications is a poor prognostic sign and further indicates that in terms of clinical outcome that Ms Hellessey will have only modest symptomatic improvements and no curative outcome is possible in her case.
In a letter dated 25 November 2016 to MetLife's solicitors, Ms Hellessey's solicitors responded to the fourth procedural fairness letter by noting that Ms Hellessey had served a number of affidavits in support of her case and asserting that those affidavits "must be considered by MetLife".
Ms Hellessey's solicitors would have been well aware at this time that the proceedings were soon to be heard on 5 December 2016. The letter implicitly invited MetLife to make its determination of Ms Hellessey's claim, and insisted that it consider the contents of all of the affidavits filed in support of Ms Hellessey's case.

[50]

Third rejection dated 30 November 2016

On 30 November 2016, MetLife sent a letter to the Trustee in which it rejected Ms Hellessey's claim for the third time.
MetLife listed further information that it had received from Ms Hellessey on 9 November 2016, being the six affidavits upon which Ms Hellessey relied at the hearing.
MetLife also listed a supplementary report of Mr Rawling dated 21 November 2016.
MetLife dealt with the affidavits by saying: … MetLife has carefully considered the affidavits and makes the following comments. While we do not intend providing an exhaustive analysis of every affidavit we note that the member's affidavit falls short of adequately addressing or does not address at all, issues raised in MetLife's letters of 11 May 2016 and 31 October 2016. For example the member has not addressed in any way her involvement with "Fairymead".
I will deal with the affidavits of Ms Hellessey's witnesses in more detail below. While it is true to say that they did not deal chapter and verse with every single item of evidence referred to in MetLife's four procedural fairness letters, they did in my view clearly present a comprehensive case and a reasonable explanation in support of Ms Hellessey's claim. If the evidence of Ms Hellessey's witnesses is accepted in substance, that would be a basis for concluding that she was TPD at the date for assessment, when read with the expert medical evidence in her case.
There could be no basis at all for MetLife to summarily reject entirely the evidence in Ms Hellessey's witness' affidavits without any response or explanation.
It is true that Ms Hellessey did not deal in her affidavit with her involvement with "Fairymead".
However, one of her witnesses, Ms Lorraine Cleary, said: 14. In January 2012, we had a foal born who we jointly owned and called Fairymead Princess Mary. I had it registered with the Australian Pony Stud Book in joint names. We used my Australian Pony Stallion (Cranellie Da Vinci) and my Australian Pony mare at the time, (Vichand Chantilly Lady) to breed the horse. We had decided to call our 'stud' prefix Fairymead, because my Husband, Keith, is from Fairymead in Queensland. 15. Fairymead is and never was a business venture of any sort, it was merely a stud name that we could use to register any foals we had. If we went to shows or sponsored classes at local shows, we would often put it under the name of "Fairymead Show Team".
Ms Cleary was an older lady who was a long-time friend of Ms Hellessey, and somewhat of a mother figure to her, and who had engaged in horse related activities with Ms Hellessey, and provided her with considerable assistance and protection, particularly in relation to Ms Hellessey's attendance at various shows and horse related activities while she was suffering from her psychological injuries.
MetLife seems to have been proceeding on the basis that Ms Hellessey was engaged with Ms Cleary in a substantial horse-related business that traded under the name "Fairymead", so that when it did not receive a comprehensive explanation as to why that was not so, it thought it reasonable to disregard all of the other evidence served to support Ms Hellessey's claim.
Mr Rawling's supplementary report was a response to aspects of MetLife's fourth procedural fairness letter, which referred to the fact that Professor Mattick had identified from the psychometric tests administered to Ms Hellessey that she had exaggerated the severity of her psychological symptoms caused by her PTSD. MetLife extracted parts of Mr Rawling's opinion, including his opinion that Ms Hellessey was TPD. It then concluded: We identified in our 31 October 2016 letter our concerns as to the adequacy of the history provided to Mr Rawling. Those same concerns apply to the supplementary report and the relative weight to be given to it. The 18 November 2016 instructions to Mr Rawling did not draw his attention to the Facebook records or the records from the Australian Palomino Horse and Pony Association or the Welsh Cob and Pony Society or the Goulburn Pony Club or the Fairymead Show Horses/Stud.
MetLife set out the results of its assessment of all of the evidence in the following terms: MetLife has considered all of the information received in relation to the member's TPD claims. That consideration has included the evidence around the date of assessment (1 March 2011), evidence coming into existence after the date of assessment and evidence served in the Proceedings. MetLife has also had regard to the evidence and submissions of the member of the Fund during the assessment of the claim and the various requests for reconsideration. In consideration of all the evidence, MetLife has not formed the view that the member is 'unlikely ever' to return to suitable employment prior to 25 June to 2043. MetLife has identified suitable vocational options reasonably within the member's education, training and experience and which are 'far removed from policing'. MetLife has provided its views in its various letters from 17 April 2014 onwards. MetLife acknowledges that Dr Durrell, Dr Westmore and Mr Rawling have reached a different view and those opinions have not been disregarded by MetLife. MetLife has however identified its concerns about the weight to be given to those opinions. This is because MetLife considers the practitioners have not been provided with full or accurate accounts of the extent of the member's activities.
Ordinarily in cases of this nature, the court would first address the question of whether the rejection of the claim by MetLife was valid, and then move on to the question whether the evidence satisfied the court that Ms Hellessey was TPD at the assessment date within the meaning of the policies. A trial judge would ordinarily determine the second question, even if he or she had decided that MetLife's rejection of the claim was not invalid.
The present case has the special feature, however, that MetLife obtained Ms Hellessey's consent for it to take into account all of the information that it received during the course of these proceedings. That included all of the lay evidence contained in the affidavits served by Ms Hellessey. That had the unusual consequence that, when it decided to reject Ms Hellessey's claim for the third time, MetLife had to give proper consideration to a number of relatively detailed substantive affidavits that were directed to prove the facts that underlay the opinions of the medical experts called by Ms Hellessey to the effect that she did satisfy the TPD definition.
It will therefore be convenient in this case to analyse the evidence called by Ms Hellessey, before the question of the validity of the third projection is considered.

[52]

Affidavit evidence

In her affidavit, Ms Hellessey gave the history of the events that occurred during the period of her employment with the Police Force that I have set out above, and continued to explain the effect of those experiences on her physical and psychological well-being.
Ms Hellessey gave the following evidence concerning the effect of her psychological problems: 78. By about that time I found that I had problems dealing with people. I would not make phone calls or answer phones. I stopped socialising and could not stand to be near people other than my immediate family and Lorraine Cleary. 79. I stopped doing all the housework and my mother took over that role. She also took over the role of looking after the children such as preparing their lunches. 80. I still attempted to prepare the evening meal but quite often I was forgetting to do so and this caused friction because the meal would be prepared so late in the evening. This would be upsetting for my husband. 81. I would reduce the number of times that I would go to do the shopping. I found that I had difficulty dealing with cashiers. On many occasions I took my daughter Claire with me and I would get her to deal with the shop assistant. She is a very extroverted child and that appeared to work very well indeed and Claire seemed to enjoy talking to the shop assistants. 82. My sleep was disturbed and I was waking every couple of hours. My libido had declined and it was almost non-existent. I often felt paranoid that people were either after me all were going to harm the children. Those complaints of never gone away. 83. From that time onwards the complaints have remained the same but the intensity has been gradually increasing over the years.
Ms Hellessey said that the treatment she received from Mr Ward and Dr Durrell in particular involved her recognising her symptoms and helping her to find strategies to deal with them. She said that the only improvement over the years has been her ability to deal with the symptoms when she sees them becoming more critical, "however the symptoms of anxiety and the like seemed to be of greater intensity now".
Ms Hellessey said that she uses valium if she goes anywhere where she feels uncomfortable, for example to the shops, or shows, and social occasions and anywhere there is a social interaction.
Ms Hellessey gave evidence about her activities with horses as follows: 92. All through this period of time I have continued to ride and take horses to the show. 93. Both Dr Durrell and Mr Ward encouraged me to maintain my interests in horses and the activities associated with them. It has been the only part of my life in addition to my husband and my children and another (sic) which has provided me with any joy or hope. 94. As part of my treatment, I was encouraged by Dr Durrell to engage in activities like pony club. I do my best to take my children to pony club. This is a familiar environment for me, however I still require my husband and/or long-term friend to be with me. 95. On the advice of Dr Durrell and Rodney Ward, in an effort to reduce my social phobia, I try to partake in everyday life activities like going to the shops or walking in the park, however I often require the assistance of my medication or my mum, friends or children to do this. 96. Likewise, I own show ponies that I enter into horse shows. If I go to a show, I will feed, water and saddle the horse, will brush the mane and apply makeup to the horse for the show. I do these tasks at the float or at the stables, so that I do not have to deal with a significant amount of social interaction. I cannot 'lead' or 'show' horses due to my panic attacks and anxiety condition. The horses are taken to the shows and led by my friends. The cost of entering these shows significantly outweighs any potential prize money that a horse might win. 97. I find when I am with the horses all by myself it is the most relaxed that I ever am in the closest to being something akin to "normal". Without the horses I do not believe that I would still be able to continue the way I am. 98. I just enjoy being around them and being able to pat them and look after them. 99. Since I went off work in 2010, I have not been able to show the horses.
Ms Hellessey explained how both Dr Durrell and Mr Ward had asked her to identify people that she would describe as "safety people". These are people outside her family who she could go to and be comfortable with and who understood the nature of her problems. She identified Ms Cleary and Mr Harvey.
Ms Hellessey gave evidence in response to MetLife's fourth procedural fairness letter which set out various activities in which Ms Hellessey had engaged, and explained the limitations on her engagement. She said in her affidavit, in relation to her Facebook posts: 120. I became aware in about April 2013 that MetLife has been prying into my Facebook account. I found this very intrusive and upsetting. I have never made a secret of the fact that I took horses to shows and I have told all my treating doctors about it and have been encouraged to continue with that activity. Dr Durrell encourages me to try and do more with the horses rather than stay at home. Both my father and my mother are "Facebook friends" as well as the entirety of my family and my husband Paul's family. I understand that a number of the posts seem to indicate that on occasions I may be happy and upbeat. I try and put posts which are optimistic even though they are not accurate in that respect. I do not want to upset my parents and more particularly I do not want to put posts on there where members of either my family or Paul's family are aware of the extent of the problems that I suffer.
Ms Hellessey identified the symptoms from which she continues to suffer in par 122 of her affidavit. They include heightened levels of anxiety, not liking to go out and socialise, feeling depressed, having difficulty meeting new people, being irritable, suffering from unstable moods and being prone to aggressive outbursts and sadness, suffering flashbacks and nightmares of when she was a police officer, having difficulty in concentrating and remembering, overreacting, panic attacks, sleep paralysis, shaking, feeling numb and detached from the world, suffering heart palpitations, and feeling angry with herself.
Ms Hellessey gave evidence concerning her daily life which included the following: 123. I still struggle with my anxiety and depression every day. Some days it overwhelms me and I find that I have difficulty getting out of bed. When I do get out of bed it is really to feed the horses and I often do so in my pyjamas and remain in my pyjamas for most of the day. 124. I cook the evening meal but I often either forget about it or I just can't get motivated to do so… 126. I still have trouble dealing with the shop assistants and have a greater sense of anxiety. I often have to take Valium in order to go out on those days when I'm feeling particular bad. I regularly go to the shops and sit in the car outside the shop for anything up to 10 minutes to work up the strength or capacity to go out and go into the shop. This does not occur if I take my children with me because I am forced to get out of the car immediately. It is somewhat easier when I take my children because they are the ones who on most occasions deal with the shop assistants. 127. I find I am irritable and aggressive with people. I have had outbursts of anger towards strangers. I was taking my children to school one day and the woman in the car behind me was blowing her horn, wanting me to go through an intersection when I thought it was unsafe. I got out of the car and was banging on her window telling her to get out and asking her what her problem was… 131. My mother does most of the household chores as I can't seem to get myself motivated to do it. It appears to just take me all my strength to get through the day. 132. My mum lives in a granny flat on my property. She does the household chores for my children when I'm having a bad day. She will always wash Paul's uniform and put it away so that I do not have to see it. Seeing Paul's uniform triggers my anxiety and PTSD symptoms. Paul does not come home in his uniform, as he does not want me to stress…
Ms Hellessey gave the following reasons as to why she cannot work: 158. I have stated above why I cannot perform the work that I have done in the past. More generally, I have poor sleep due to nightmares and do not wake up well. I do not know how I could regularly go to work to start with. 159. I cannot work due to my depression. This is the reason why sometimes I do not get out of bed. I have no motivation to do anything that I used to and I cannot seem to fix it. 160. I cannot work due to my symptoms of social phobia. I often have panic attacks around people that I do not know. There are only certain places that I am comfortable, like at home with my horses, or with my kids at pony club. I need to be with people that I am familiar with. 161. I cannot work due to my irritability and unstable moods. I am very irritable around the home, and the children, Paul and my mum are usually the subject of my outbursts. I am often snapping at people. 162. I cannot work due to my difficulty maintaining concentration and difficulty remembering things. I often can't remember what I am trying to say. I have difficulty getting words out and have difficulty remembering what I'm doing. I will often start a task, and forget. Later, for example, I will realise that I had left a tap on while feeding the horses and forgot about it. I used to be able to remember people's phone numbers after hearing it once. Now I have trouble remembering my own phone number. I forget appointments all the time.
Ms Hellessey gave specific evidence as to why she felt unable to engage in each of the five jobs identified in the vocational assessment report.

[53]

Cross-examination

Ms Hellessey was cross-examined in depth over some 139 pages of transcript.
Initially, senior counsel explored the question of whether Ms Hellessey had sought any employment, and what types of employment might be available to her.
This must be considered in the context that Ms Hellessey's psychological injuries had not permitted her to engage in any employment up to the time of the trial, and none of the possible forms of employment explored with Ms Hellessey at this stage of the cross-examination included any of the five jobs identified in the vocational assessment report.
The jobs suggested included being a stable hand, working at a riding school, being a groom or a horse handler, working at a stud, being a breeding manager, or an event organiser, or a judge at a horse show, or a foaling attendant. Ms Hellessey had various reasons for why these occupations would be unsuitable, including that she was not trained, or the jobs did not exist in her area, or a living could not be made from them. There was no evidence that was inconsistent with Ms Hellessey's responses, and it was not part of MetLife's case as presented before the hearing that these jobs were available.
Ms Hellessey candidly and repeatedly said that she had not looked for work at all, because she could not guarantee that she was going to be able to get out of bed to get to work, or she was following doctors' orders.
As Hellessey was criticised for answering a question as to what she would like to do by saying: "Put stamps on envelopes" (T 23.2), on the basis that it was "a silly example". As it appeared to me, however, Ms Hellessey did not understand that the questions that were put to her were exploring anything that was realistic, given her psychological condition.
Senior counsel then the explored whether Ms Hellessey understood that if she misled medical practitioners, or was dishonest with them, they could arrive at an incorrect opinion. Ms Hellessey agreed that was true. She denied that she misled any of the medical practitioners (T 30.25). She said that the history that she gave was complete "within the timeframe" (T 30.38).
Ms Hellessey accepted that she was aware of the actions undertaken by MetLife to examine her private records and the like to uncover her activities. She accepted that what MetLife put in the letters to her (the procedural fairness letters) was right (T 31.38).
Senior counsel explored the acquisition by the Hellesseys of their house on 25 acres about 25 km out of Goulburn. She said that she did so to get away from people and to have her horses with her. Ms Hellessey was questioned about the construction of what is called a "round yard", which she had earlier agreed was a facility for breaking and training horses. When she made that agreement she said that it was for the safety of her young children (T 29.29). Senior counsel explored the question of who organised the erection of the round yard and Ms Hellessey variously said "Paul" and "Paul and I" and then said that she spoke to Paul and he spoke to the company. When the question was asked again, Ms Hellessey inexplicably answered "God" (T 35.13). Apart from inquiring about whether the round yard was of a professional size, which Ms Hellessey denied, the issue stopped there for the moment.
There were exchanges about the number of horses that Ms Hellessey owned from time to time, and in particular whether she owned 18 horses jointly with Ms Cleary, as well as a number of horses by herself. Ms Hellessey made the point that she and Ms Cleary owned 18 horses between them, and only three or four jointly. She owned a small number of other horses with other persons. At any one time there might be 10 or 11 horses on her farm, not all of which were hers.
The farm had five paddocks in all, of which two were roughly 10 acre paddocks. Ms Hellessey, and her husband and children fed the horses. The only horses that were groomed were the show horses, and Ms Hellessey did that with her children. There were questions about who rode the horses, and Ms Hellessey accepted that occasionally she did. She said that she did not ride the show horses. She "could count the amount of times on one hand" (T 41.26). Ms Hellessey accepted that she had ridden horses off the farm.
Ms Hellessey said that she had never broken in a horse at the farm (T 42.24).
Ms Hellessey was shown screenshots from her Facebook page. She agreed that on 20 or 21 July 2012 she posted: "Checkout half of my round yard. Panels coming next week". She agreed that a round yard was erected only a couple of months after the farm was purchased. Ms Hellessey agreed that a post she made: "I am so excited, so happy, a dream come true. I have, finally, my horses with me after agisting them for the last 25 years" was a genuine statement of her mood of excitement at the time (T 44.29). At about the same place she also accepted that her statement to her father that she had never been so happy was a genuine statement of her mood.
Ms Hellessey was asked questions about where she obtained stockfeed. Asked in what name she had an account with the company that delivered hay, Ms Hellessey replied "Fairymead" (T 45.47). Ms Hellessey said that she personally picked up stockfeed from a merchant in Goulburn (T 46.32).
The following cross-examination took place concerning Fairymead (T 48.20 to 49.40): Q. You were asked a couple of questions about Fairymead earlier. I was just going to ask you - tell me, what is Fairymead? A. It's a prefix to register horses. It's a show team name, and it's the name of Lorraine's property. Q. Right. So what does it do? A. We just go to shows under Fairymead show team. It - show teams - everyone has their own show team name, and - yeah, sometimes you enter under Fairymead show horses. If we sponsor an event for the pony club or something, it's - it's under Fairymead. Q. What does it do apart from that? A. Nothing. Q. Is it a business? A. No. Q. Has it ever been a stud? A. No. Q. Have you ever heard of Fairymead stud? A. Yes. Q. Tell me, a stud - that's a specialty operation, isn't it? A. It's a name. Q. I don't think that's right. I think a stud is a place where they breed horses, isn't it? A. Yes. Yes. Q. What that means is, normally, there's a stallion available A. Yes. Q. or at least, the semen of a stallion available. A. Yes. Q. And that mares are brought to a property and inseminated? A. Yes. Q. That's what a stud is, isn't it? A. Yes. Q. Have you ever heard of Fairymead Stud? A. Yes. Q. In what context have you heard of Fairymead Stud? A. With Lorraine's two stallions. Q. I beg your pardon? A. With Lorraine's two stallions. Q. So have you heard of Fairymead Stud in respect of something to do with Fairymead? A. Yes. Q. Right. And Lorraine has two stallions. A. Yes. Q. Is that right? But is that a breeding operation? A. Only for her friends. Q. When you say "only for her friends", are you saying, yes, it is a breeding operation, but it's limited? A. Yes. Q. So there is a breeding operation which trades under the name Fairymead. Is that so? A. I - for that, yes. Q. How long's that been going on? A. Well, I don't know.
Ms Hellessey said that her involvement in Fairymead started with one foal, and that she had helped Lorraine Cleary out with Fairymead Stud. Ms Hellessey said that she and her husband helped Ms Cleary with her website, and sometimes if she was at work, Ms Hellessey would go and feed the horses for her (T 50.46). Sometimes Ms Hellessey would groom for Ms Cleary's shows. Ms Hellessey accepted that she and Ms Cleary operated Fairymead.
Ms Hellessey was shown a magazine called Show Horse Magazine Australia, edition 8, September 2012, which had an advertisement for Fairymead Show Horses (T 52.5). Ms Hellessey accepted that she had been listed in the title page as being one of the authors of the month's edition, and agreed that she was. The section on Fairymead Show Horses was at page 12 and 13. Ms Hellessey agreed that page 13 contained in article written by her, and that what was said in the article was honest and accurate (T 53.6). Ms Hellessey accepted that the article referred to a real stud operation and that the purpose of the article was to attract people to pay service fees. She accepted that the article said: "Fairymead is owned and operated by two horse-mad ladies", but also said: "All the money would go to her", meaning Ms Cleary (T 55.45). Ms Hellessey said that she owned a pony referred to in the article whose nickname was Stewie (T 56.27). She also owned a horse whose nickname was Nigel. Ms Hellessey accepted that the article said: "Goldie was recently purchased for Bernie to ride" and that was true. Ms Hellessey claimed only to have ridden Goldie around her round yard once (T 57.30). She said that she gave Goldie away as he was trouble.
Ms Hellessey acknowledged that the article said: "Fairymead's resident stallions will be standing a public stud this season" (T 58.13). She said that it was Ms Cleary who determined the price for servicing horses, which was a service offered to the public. Ms Hellessey was cross-examined about an invitation in the article which said: "Please come and say hi at shows" (T 59.8 to 59.50). Q. I have had an impression, a strong impression from your evidence here today and other things that I have read, that this is something that you say that you carefully avoid, contact with the public? A. I don't go to all these shows. Q. I didn't ask you that, I'm asking you now is it right that you have given evidence to the doctors, to MetLife, to his Honour that you cautiously avoid things, such as inviting the public to come and say hi to you? A. To Lorraine. Q. Well, where does it say that? I didn't see that there, I'm afraid. A. Yep, well, I don't attend all the shows with Lorraine. Q. And then it says, "And don't hesitate to contact us." A. Yes. Q. If you look down the bottom, your name is there next to a phone number. A. Yes. Q. I also had the impression that one of the things that you said that you carefully avoided was contact by telephone. A. Yes. Q. So here you are, inviting unidentified members of the public at large, to contact you, and giving them your private phone number. Do you see that? A. Yeah. Q. Do you see any inconsistency there, Mrs Hellessey? A. Well, I never answered it. Q. Right. I see. So I did ask you at the outset, when you wrote this, did you intend it to be truthful and honest and accurate. Remember I asked you that? A. Yes. Q. Right. So when you said you were inviting people to come and say or to call you and giving your private phone number, was that truthful, honest and accurate? A. Yes. Q. Then it says, "You can also find us on our Facebook page." Do you see that? Just the last sentence of that paragraph. I'll read it to you as a quote. "You can also find us on Facebook." A. Yeah. Yes.
Ms Hellessey agreed that Fairymead Show Horses and Fairymead Stud had a Facebook page that had been deleted. When pressed, she said that she did not recall deleting it and suggested that it was Ms Cleary's son that may have done so.
Ms Hellessey agreed that she had one horse trailer for carrying horses and that it had "Fairymead Show Horses" painted on the side, which "was part of our stud name" (T 61.29). She denied that the name was part of promoting a business. She agreed that there were shirts with "Fairymead" printed on them, which were used when horses were being shown, but again denied that this was promoting a business.
Ms Hellessey was shown the remnants of a Facebook page to do with Fairymead Show Horses, but could not say in what circumstances it was deleted. She agreed that the remnants of information included: "Fairymead Show Horses is run by Lorraine Cleary and Bernie Hellessey" (T 62.41). She said that it meant that they "run the show team".
Ms Hellessey was shown an undated Facebook post in which she had said "Could not be happier with my life right now" and "Who would have thought living an absolutely busy dream?" She said that she was referring to looking after the animals on her land with her children. It was then suggested to her that this was inconsistent with what she told the doctors that her life was rather inactive. At T 65, Ms Hellessey said her life was inactive but she tried to keep herself busy, but it did not always work. She said that what she wrote in the Facebook post represented one day when she had a good day.
Ms Hellessey was asked questions about a Facebook post concerning 10 trophies and one shield that Fairymead Show Horses had won at the Palomino Society Awards night (T 65.33). She said that the prizes were won by her children and Ms Cleary's gelding. Ms Hellessey denied (T 66.49) that a Facebook post that said "So excited to see all the lovely people tomorrow night at the New South Wales Palomino birthday bash" was inconsistent with the things that she had told the doctors, MetLife and the court.
Ms Hellessey was shown certificates of registration of horses by the Welsh Pony and Cob Society that described the owner as Bernadette Hellessey of Fairymead Stud. Ms Hellessey accepted that as at August 2015 she was still representing herself to the Society as being from the Fairymead Stud, and said that she had just never changed the name. She explained her conduct in the following way (T 69.3 to 69.14): Q. Yes, well, then I'm asking you why you wrote in Fairymead Stud? A. Because I haven't changed it, and to change it, there's a whole another lot of paperwork and money. Q. Have a look at this, this is the membership renewal. Wouldn't it be the case that if you decide to do so Fairymead Stud would simply not renew its membership? A. Then I have to fill out another whole heap of paperwork and pay a whole lot of money. Q. To stop being a member? A. No, to get a new name.
Ms Hellessey accepted that there were a lot of documents in the court book that suggested that Bernadette Hellessey was associated with the Fairymead Stud, from 2012 right up to 2015. Ms Hellessey agreed that it was most likely she who filled out the forms to register horses in the name of Fairymead Stud, and that the address of Fairymead Stud that was given was her address.
Ms Hellessey denied that Fairymead was a business (T 73.36), notwithstanding that it had shirts and a trailer painted with its name, there was an article that sought to attract people to charge them service fees, and it had a website. She agreed that Fairymead used to sponsor shows.
Ms Hellessey suggested at T 75.20 that Ms Cleary was still using Fairymead Show Horses, that her own involvement had reduced when she moved to her new property, but that she still helped with the paperwork. She said that she could not recall exactly when she terminated her involvement with Fairymead Show Horses, but it may have been 2013.
The following occurred concerning the reliability of Ms Hellessey's memory (T 76.32 to 77.34): Q. What you're saying is, there's a problem with your memory? A. Yes. Q. See, "I don't recall doing something" might mean, "It didn't happen to the best of my belief." You're not saying that, are you? A. I don't remember. Q. Right. What does "I don't remember" mean? That you fear you've got a defect in your memory? A. My memory is not what it used to be, definitely. I can't recall what I was doing. Q. Even in 2015? That's only last year. A. Yeah. Q. What about in 2016? Could you have been involved with Fairymead Show Horses this very year? A. I know I haven't been to any shows with Lorraine this year. Q. That's a different thing. A. ..(not transcribable).. Q. I'm asking you about your - sorry? A. That's how I'm involved with it - going to shows with her. Q. All right. Well, I don't want you to qualify it in that way. I want you to try and answer my question. Did you have any involvement with Fairymead Show Horses in 2016? A. I don't remember. Q. Now, what does "I don't remember" mean? Are you saying that there is something wrong with your memory? Is that what you're telling the judge? A. Yes. Q. What's wrong with your memory, which would prevent you from remembering what happened in 2016? A. I don't remember what happened yesterday. Q. Right. Is that true - you can't remember what happened yesterday? A. My memory is not what it used to be. Q. No - well, that's a different thing. My memory's not what it used to be, but I can certainly remember what happened yesterday, you see. Are you saying your memory now is so defective that you have trouble remembering events day to day? A. Yes. Q. That's honest, is it? A. Yes.
Ms Hellessey denied that she was "faking memory complaints as a means of avoiding answering questions about Fairymead" (T 78.12).
Ms Hellessey was asked about sponsorships offered by Fairymead to various organisations and shows. She said: "I just try and sponsor the kids' events so that they get some prizes" (T 79.39).
Ms Hellessey denied that her involvement in sponsoring horse shows using Fairymead Show Horses was a form of advertising (T 84.37).
Ms Hellessey insisted that counsel should ask Ms Cleary about whether the operation of Fairymead Started was a moneymaking enterprise (T 85.17). Asked: "You see the point is; you were involved in all of this. This was your business, wasn't it?" Ms Hellessey responded: "Not a business, I helped her out". Ms Hellessey did not deny co-ownership of Fairymead, but she did deny ownership of the stallions.
Ms Hellessey agreed that most of the time she was responsible for the paperwork when something had to be done in relation to the registration of a horse or a transfer in respect of horses that she owned with Ms Cleary (T 89.29).
The following cross-examination occurred concerning whether the paperwork done by Ms Hellessey was inconsistent with her case (T 90.40 to 91.5): Q. But at the same time, you were capable of carrying on the paperwork for Fairymead. Is that true? A. Sure. Yes. Q. So you were able to compartmentalise your life - things to do with your insurance claim, you were incapable of doing anything. Is that right? A. I don't understand that question. Q. Well, according to what you were telling the doctors at the time, you were living, virtually, a hermit-like existence. A. Yeah, I did this in my own home. Q. All right. So if you're in your home, you can do anything you want. Is that what you're saying? A. I have a better level of relaxation. I can do it in my own time. It's stuff that I've been doing for the majority of my life.
Ms Hellessey explained her failure to deal with Fairymead in her affidavit by saying she did not give it a second thought: "it's a show horse's name. It's a prefix" (T 94.45). The cross examination continued (T 94.48 to 99.2): Q. What about if the doctor asked you, "What are your activities?" Are you saying that Fairymead would not enter your head? A. No, I say that I take my children to pony club, I take my children to shows, I take my horses to shows, I hang out at home. Q. So you're saying that it wouldn't have entered your head to tell the doctor about your involvement with Fairymead? A. No, because it's just a show team. Q. Don't you think that was a factor that the doctors would have like to have known? A. It would make no difference to them because it's a show team - Q. Did you make that judgment that it would make no difference to the doctors? A. No, I'm making it now. Q. You're making it now, right. You know that the materials produced under subpoena and by other means show that you've been at many, many horse shows over the last five years, don't you? A. I wouldn't say many. Q. It depends on what you mean by "many", that's a good point. It shows successive periods where you were going to horse shows, sometimes during the height of the season, twice a month, doesn't it? A. Yes, probably. Q. Did you think that doctors would like to know that? A. If they asked. Q. Are you saying they didn't ask? A. No, I don't remember any doctors saying, "How many more shows do you go to?" Q. You agree you didn't tell them about the extent? A. I don't recall if I did. Q. You can't recall. Is that because of this memory defect? A. I don't know. Q. You see, as you sit there now, just think about it, the doctors were trying to make an assessment about your disability, weren't they? A. Yes. Q. Did you not think it crucial for those doctors to know the full extent of your activities attending horse shows? A. No, I didn't think about it. Q. Why? A. It didn't enter my head. Q. It never entered your head? The doctors asked you what your activities were? A. I told them. Q. But you didn't tell them about your activities attending horse shows? A. I did tell them I go to horse shows. Q. You played it down, you told some doctors that you went very occasionally, didn't you? A. It is occasionally, compared to what I used to. Q. We will be looking at that shortly. You see, I need to suggest this to you: you deliberately concealed that from the doctors, didn't you? OBJECTION. FORM. QUESTION ALLOWED Q. You deliberately played down the extent of your activities to the doctors, didn't you? HIS HONOUR: Just before you answer that, these questions are very general. I'm not going to change my ruling, but it's not as though you have taken the witness to a particular report and brought it to her attention that a doctor has recorded something, got her agreement that that's what she told him and then asked the question. So you can continue, but WATSON: I'll do that now, your Honour. I'll do that now. Q. I just wanted to ask you in the general for the moment and then I'll take you to a particular medical report. I want to ask you some about some things you've told doctors in general terms. Do you understand that? A. Yes. Q. You told a series of doctors that you were socially withdrawn, that you had cut off social contact? A. Yes. Q. You told some doctors that you could only go to the shops with dread. You told one particular doctor that word. Do you remember that? A. No, I don't remember it. Q. But is that right that you told doctors that you could only go to the shops with a feeling of dread? A. Yes. Q. But you told them that, didn't you? A. I don't recall. Q. You told them things like that, you told doctors that you could only go to the shops under duress? A. Yes. Q. You told doctors that you were constantly, and I want to underline that word constantly, constantly anxious? A. Yes. Q. That you told doctors you avoid social situations? A. Yes. Q. You told doctors that you had a fear of talking and interacting with others? A. Yes. Q. You told them that you had a restriction, or, to some of the doctors, an inability to pursue your horse interests? A. Yes. Q. You told doctors that you were reluctant to drive a car? A. Yes. Q. I'm sorry, I just need to get a reference. WATSON: Could the witness be shown court book number 2? Sorry, the Court already has it, it's court book number 2. Q. Do you have court book number 2 with you? A. Yes. Q. Could you go to page 717? A. Yes. WATSON: There's a funny numbering system that throws you off a bit, your Honour. There's some older numbers on them. HIS HONOUR: Yes. WATSON Q. You will see there that that's the first page of a report from a Dr Bruce Westmore? A. Yes. Q. Do you remember Dr Westmore? A. Yes. Q. Dr Westmore says that he saw you on 19 November 2015? A. Yes. Q. That's not long ago, it's only a year ago. Is that right? A. Yes. Q. But you can remember seeing him a year ago? A. I remember him. Q. Did you try and tell him the truth? A. Yes.
Ms Hellessey was cross-examined on the basis that she had not adequately informed the various doctors who examined her about her involvement with Fairymead, and the number of times she went to horse shows (T 95 to 96). She said that she explained her attendance at horse shows in general terms and otherwise answered their questions. She said that it did not enter her head to think that it was crucial for the doctors to know the full extent of her activities attending horse shows (T 96.48).
It was suggested to Ms Hellessey that the fact that she groomed, washed and fed the horses because her mother was scared of horses was inconsistent with the information she gave to Dr Westmore that her mother did pretty much everything for her (T 99.26). It was further suggested that it would be a gross exaggeration if Ms Hellessey told Dr Westmore that she could not go anywhere in public and she replied that she was not comfortable in public (T 100.11). She denied that she grossly exaggerated her condition to Dr Westmore.
Ms Hellessey accepted that she did ring people on the telephone: "If I really have to, I do" (T 101.36).
Ms Hellessey was asked questions about whether at her attendance upon Mr Rawling she gave "extreme response options" nearly all the time (T 103.7). Ms Hellessey responded that she did not understand, and that Mr Rawling did not talk to her about it. She denied that she had exaggerated her disability to Mr Rawling or Professor Mattick.
Ms Hellessey was taken in detail to many of her Facebook posts that I will consider separately below. This led to the following cross-examination (T 114.35 to 115.14): Q. You are making two trips to the Royal Easter Show A. Yes. Q. and sending these messages expressed in what seems to me to be a fairly happy way. Do you see that? A. Yes. Q. Do you see the inconsistency between what's appearing on these pages and what you were telling the doctors? A. Facebook is one thing, real life is another. Q. Have a look at some of the messages. They seem to be happy, things like the message, "Whoot, whoot, Leo first," et cetera. Do you see that? A. Yes. Q. This is at the time when you're most depressed. Is that right? A. Yes. Q. One says, "Leo, woo hoo, good boy, Leo." This is when you're at your lowest ebb. Is that right? A. Yes. Q. Can't leave the house. Is that right? A. I can leave the house to do horse things because it's part of my treatment plan. I'm damned if I do, I'm damned if I don't. Q. I see. It isn't working very well, the treatment plan, if today you're telling his Honour you're not even going to attempt to look for work in the next 25 years. It's not working all that well, is it? A. No, it didn't work.
Further (T 115.44 to 116.4): Q. So there you are, you were sending that out to the world, the people on your Facebook page? A. Yes. Q. Why at this moment of despair were you doing that? Was that part of your treatment plan, was it? A. No, the Facebook is not, it's just to report back to family members, friends, members how Lorraine's stallion went at the show. Q. Members of the public? A. Not the public, my Facebook friends, my dad, my mum.
Ms Hellessey explained a particular entry for 21 October 2011, in which she said that she did not ride Stewie "due to my ankle injury", in the following way (T 118.42 to 118.48): Q. So there you are, you were sending that out to the world, the people on your Facebook page? A. Yes. Q. Why at this moment of despair were you doing that? Was that part of your treatment plan, was it? A. No, the Facebook is not, it's just to report back to family members, friends, members how Lorraine's stallion went at the show. Q. Members of the public? A. Not the public, my Facebook friends, my dad, my mum.
Senior counsel revisited the issue of Ms Hellessey's memory (T 126.29 to T 127.2): Q. There have been a lot of things that I have asked you about where you seemed to be fairly certain about what you did, what you didn't do, where you stay, whether you stayed one night or whether you stayed three, whether you stayed at all and in what accommodation you stayed. How do you remember that in light of my questions earlier where you claimed to have a memory defect? A. My memory's up and down. Q. Your memory's up and down? A. Mm-hmm. Q. Does it go up when it helps your case? A. It's not nothing to do with this. Q. Right. A. Can't control it. Q. So you're saying that your memory is very good for some things, but at other times, as I understood your claim, you couldn't remember what you did yesterday. A. I still don't know what I did yesterday. Q. All right. Are you faking that? A. No.
Senior counsel suggested that Ms Hellessey's frequent attendances at horse shows was inconsistent with her evidence that she could not work (T 128.19 to 129.2): Q. You see what's happening. You're going to shows all the time. You see that, don't you? A. It looks like all the time, but when you break it down, it's a few big shows a year. Q. But what we're talking about is this - is that you're going to shows. There are lots of people there who you don't know. A. Yeah. I don't talk to them. Q. All right. But they're members of the public. A. Generally not where the horse floats and stables are. Q. But there are members of the public at something like the Canberra Royal Show, aren't there? A. Not in the area where I am. Q. All right. Okay. So the fact is you're doing what you can do, physically, is that right? A. Yes. Q. But you're telling his Honour that you cannot even get out to look for a job. A. No. This is totally different. Q. All right. Okay. A. This is something I enjoy. It's something that I find easy. It's something I've done my whole life. It's not a new thing. Q. So you can do things you enjoy. A. Yes. Q. Right. And things around horses are things you enjoy. A. Very limited, though. I don't ride. I haven't ridden in a year. I just - you know, it's not black and white like that. I can't--
It was suggested to Ms Hellessey that her attendances at the horse shows were inconsistent with what she had told the doctors (T 132.28 to 133.4): Q. Okay. I'm sorry this is taking so long, Mrs Hellessey. We're up to 2014. I can cut it short if I put these propositions to you, I hope. You agree, after going through this detail, you're leading a very busy and active life. Correct? A. No. Q. You're leading a life which exposed you to random members of the public. A. No. Q. No? Not at the Royal Easter Show in Sydney? A. No, not in the stable area. Q. Not in the stable area. It was a life which was physically demanding, in the sense of getting the horses, preparing them, feeding them, floating them, moving from one town to another. Do you accept that? A. Yes. Q. Tell me, I've shown you quite a lot of detail. Do you think that that detail is at odds with what you were telling the doctors? A. Yes. Q. Sorry, I - to give you a chance. I think you might have misunderstood my question. What I've been showing you is quite different to what you were telling the doctors, isn't it? A. No, I don't think so. Q. All right. Okay. A. I'm only doing what I'm told to do by my doctors.
Ms Hellessey accepted that she purchased the Fairymead website in her own name on about 12 May 2011. She agreed that on that website from time to time horses were offered for sale. She agreed that the services of stallions were offered on the website, but said that they were Ms Cleary's stallions. The services were offered under the name "Fairymead Stud". Ms Hellessey denied that it was a business. She said that the cross-examiner would have to ask Ms Cleary about that. When asked whether there were offers to agist horses, Ms Hellessey responded that that was at Ms Cleary's house, and again invited the cross-examiner to ask Ms Cleary.
Following more questions about her attendance at various horse shows, Ms Hellessey gave the following evidence about a Facebook post after her attendance at one show (T 174.8 to 174.25): Q. You're talking about a "fun weekend at the VIC All Welsh". A. Yes. Q. And speaking in a very positive way? A. Yes. Q. You may have heard this expression "snapshot". Is this just a snapshot of your mood? A. When I'm there with friends, yes. Q. Okay, so there are times when you're just happy. Is that right? A. Yes. Q. By the looks of it, it's all weekend that you're happy? A. If I'm doing what I love, yes. Q. Around horses? A. Around horses and my friends.
Ms Hellessey was questioned about a Facebook post that she made when she was attending the Royal Easter Show, in which she said that she was exhausted (T 175.39 176.37): Q. What makes you exhausted from attending the shows? A. I don't know. Q. Sorry, you're serious about that? You don't know? A. I don't know what makes me exhausted. Q. I mean, was it the physical work? A. There's not really much to do. Q. Was it the socialising? A. No. Q. There is socialising, isn't there? A. In the stables, there's me and my friends, yeah. Q. Drinking and enjoying yourselves? A. I usually have got my kids with me, so I can't drink very much. Q. Anyway, so those days, from 5 April to 9 April, where were you staying? In a cabin at the grounds? A. Yeah, yeah. Q. Your mother wasn't there with you, was she? A. No. Q. So that's another aspect, isn't it? I mean, if you're away for that period of time, 5 April to 9 April, your mother isn't looking after every aspect of your domestic life then, is she? A. No. Q. No, you are? A. Yes. Q. Tell me how is that so, given the condition that you've just got? A. I have my children with me and I have Daniel with me. Q. Your children are at home with you, aren't they? A. Yeah, and they come to Sydney Royal with me every year as well. Q. Yes, but I'm asking you what the difference is. We read in some of the medical reports that you were more or less dependent upon your mother's A. At home, yeah. Q. At home but not when she's not available? A. I don't get what you're getting at. I have got other support people with me when I'm at these shows. Q. Do you see any inconsistency there at all? A. No, I don't.
It was suggested to Ms Hellessey that she was a very sociable person (T 178.1 to 178.6): Q. You're actually a very sociable person, aren't you? A. Only with the people I'm comfortable with. Q. The fact is that you actually have got a lot of people who are your friends on Facebook with whom you communicate on A. Horse people, people I've known my whole life, yes.
Ms Hellessey agreed that she could drive herself when she needed to go from Goulburn to Wollongong to see Dr Durrell, or to East Kurrajong to meet Daniel Harvey, so that he could drive them both to horse shows. She accepted that she acted as a judge in relation to one event at a horse show in March 2016.
Ms Hellessey accepted that at one stage she was secretary of the Palomino Society, but said that the job involved putting stamps on envelopes and labels on the back of member cards and posting them. She accepted that she had compiled two newsletters for the Society. She said that she did it with her husband. She travelled with her husband and children to the Palomino Society awards night each year because her daughter won a lot of awards.
It was suggested to Ms Hellessey that she gravely exaggerated her sociability (T 184.8 to 184.22): Q. I am going to suggest to you again, you have really gravely exaggerated your sociability, haven't you? A. On Facebook I may appear up beat. Q. So when you are saying, "See you all tonight," it must be a terrible disappointment when you arrive and you don't want to see the people? A. No, I do want to see my friends. Q. Right. I see, so you are very sociable in those circumstances? A. I wouldn't say sociable. I'd say I'm going to support my children who are getting awards and I get to catch up with friends that I have known for years. Q. You would stay with them, by the looks of the next entry, at accommodation nearby? There is something attached to the A. I didn't stay with friends, I stayed with my husband and my two children.
Ms Hellessey was asked questions about her participation in an event called the "Ride with Pride", which she said involved five days of riding. She gave the following evidence (T 186.20 to 186.36): Q. So you were going on a ride with 30 or so people? A. Yes. Q. And you were going to camp out with them, weren't you? A. I camped with Christine. Q. Right, but that's in a group of 30? A. We actually weren't near anyone, we were up the back. Q. Each night there was dining together and socialising together? A. We got our meal and ate back at the camp. Q. What, you cut yourself from everyone else, did you? A. Yes. Q. Why? Because of your PTSD? A. Both of us do not really deal well with strangers.
Ms Hellessey said that she did not participate in the nightly entertainment.
This Hellessey was asked about how long it was since she had seen her treating psychiatrist, Dr Durrell, and her psychologist, Mr Ward, and agreed that she had not seen Dr Durrell for a year or two and Mr Ward for "probably years". She said that she could not afford to see Dr Durrell all the time and she spoke to him by telephone, and he posted scripts for her medication.
Finally, Ms Hellessey was shown a number of jobs that had been advertised on the Internet in relation to the horse industry, such as stable hand, horse groom, and stud staff. She said that she could not try any of those jobs because her symptoms would not allow it.
Ms Hellessey was not asked a single question about her ability to obtain employment in any of the jobs listed in the vocational assessment report, which were pleaded in par 12(i) of the defence to the amended statement of claim.

[54]

Credibility of Ms Hellessey's evidence

Ms Hellessey gave evidence in chief that her current treatment involved her taking 200 mg of Zoloft daily and 5 mg of Valium as needed. She said that she had taken Valium that day.
Ms Hellessey appeared to me to be subdued throughout her cross-examination and at least mildly depressed. Throughout the cross examination she was able to cope adequately and responded to most of the questions readily. Her attention span appeared to be shallow and her responses were somewhat mechanical.
I am satisfied that Ms Hellessey was being honest in her responses to the questions that were asked of her. She was cross-examined in detail in relation to a substantial number of Facebook posts and other documents that she had completed. She appeared to me to be candid in making many acknowledgements that were capable of being taken to be against her interests. She did not appear to me to be evasive. She readily acknowledged that she had attended a substantial number of horse shows, although she consistently maintained her position that she attended with close friends and her children who supported her, and she did not socialise generally with the strangers who attended the shows. She said that she stayed in the background, and did not lead her own horses when they were shown for judging.
Much of the cross-examination proceeded upon the implication that it was self-evident that, if Ms Hellessey could attend the horse shows and engage in the other horse related activities that she engaged in, as well as formulating the messages that she posted on Facebook, then she did not suffer from the psychological limitations, and in particular the social phobia that had been identified by her treating psychiatrist. Ms Hellessey readily acknowledged the fact of her activities, but she did not accept that it followed that she was exaggerating the effect of her PTSD and depression.
I accept the truthfulness of the evidence given by Ms Hellessey. Although she appeared to be at least mildly tranquillised, I am prepared to accept from the way she gave her evidence that she had a relatively good memory of the subject matters of the questions that were put to her.

[55]

Evidence of Mr Paul Hellessey

Ms Hellessey's husband, Mr Paul Hellessey, is a police officer.
The evidence given by Mr Hellessey in his 8 November 2016 affidavit included the following: 9. On 31 August 2010, Bernadette had an incident at work, where she was startled to the point where she took cover, hiding under a set of stairs, she was crying and apologising to me for the outburst. I took her to her Doctor and sent her home to her mother. This was the last day she worked as a police officer. 10. She began to dramatically worsen at this time, she became argumentative and verbally aggressive when I was not able to understand what she was going through. She was not sleeping, she was withdrawn and she was emotionally unpredictable. When she started to yell at our children I knew something was terribly wrong. Her only social interaction at that time was with Lorraine Cleary, a friend who also owned horses, and also paddocked our horses. She did not go to as many horse shows as she used to, and when she did she would only go with Lorraine. 11. I had hoped that that after being away from work Bernadette would improve. I have not seen any improvement in her at all since that time. In my opinion her symptoms became progressively worse and more frequent. … 13. Bernadette has significantly changed since the onset of her symptoms. I have observed the following symptoms: a) Anxiety. Bernadette is often fidgeting and looking around as if she is being watched. She struggles to maintain eye contact and is withdrawn. She is never at ease when we are out of the house, and she is always anxious to get home where she feels comfortable and safe. b) Paranoia. Bernadette often feels like she is being watched. She is paranoid about the children - she is always wanting to know where the kids are, when she can't physically see them. c) Mood swings. These are sometimes gradual and sometimes instant. She is often very nice and pleasant and then soon after angry and not wanting to be around anybody. Often she will seem that she is absolutely fine, and will then storm off to bed for what appears to be no apparent reason. Sometimes I think that she is in a bad mood, and when I ask her she tells me that she is fine. Sometimes, if she takes something that I say the wrong way, she will instantly become angry and 'snap' at me. d) She is easily startled daily. If she comes out of the bathroom and someone is coming the other way down the hallway and she is surprised, she will scream. If she is cooking dinner with the range hood on, and I open the fridge or say something to her from behind, she will jump. Even everyday occurrences such as the phone ringing will cause her to jump or scream in response. e) Scratching her palms and fingers, at times until they are raw. She gets upset when she realises she is doing this. f) Irritability. g) Restlessness, fidgeting. h) Difficulty sleeping/waking up startled. As a result, we rarely sleep in the same bed. There have been times when she has caused marks and minor cuts to her face during her sleep. i) She has told me that she suffers from sleep paralysis and night terrors. j) Bernadette is very forgetful. I regularly have to remind her of basic things like paying bills. We often get reminders of bills not having been paid, or I find out due to checking our shared Bank account. She regularly forgets about the children's school appointments. k) Bernadette suffers from panic attacks. She has short breathing and appears to have heart palpitations, dryness of the mouth, and cries when these occur. This can appear to have no logical trigger at times and at other times it may be due to the anxiety surrounding going to do something like planning to have dinner at the pub with friends. Over time this is simply avoided. She does not come to my work functions or events. l) She doesn't do things that she used to do. She used to be quite happy to ride her horses with other people around, or lead them in the ring at pony club. Now I have to do this if I can. I know very little about showing horses and I do not consider myself a 'horse person'. When I cannot assist a close friend does it. She doesn't do anything that puts her in the limelight especially with the horses. She is always in the background and will just watch. m) She doesn't dress up or put makeup on to go anywhere. She has in the past gone into town in her slippers and pyjama pants. She has called me at work when this has occurred a few times, and has been crying and emotional. n) Bernadette cries often, for various reasons. She gets teary about good things like looking at pictures of the girls and doesn't understand why she is crying. She doesn't deal well with death at all. Her former colleague died and she was unable to attend the funeral due to her condition. If she is very startled, she will cry. o) On a few occasions, she has been bedridden, and will be very difficult to talk to. She will cry all day in her room and tell me things like she "doesn't want to be here anymore" "I don't deserve this" and "you deserve better". She will ask, "What's wrong with me?" There have been around 3 or 4 instances similar to this in the last 12-18 months. p) She generally has low energy levels during the day. The two biggest achievements of the day are usually feeding the horses and preparing dinner. If she makes a mistake while preparing dinner, she will become distraught. She texts or rings me to pick up ingredients for dinner on the way home, that she has forgotten or was unable to pick up due to her shopping being interrupted by an episode of anxiety, or some other issue. … 15… If for some reason I cannot take the children somewhere that they need to go, and she is forced to take them, beforehand she will be very anxious and worried about having to take them wherever they need to go. When she comes back, she seems to be totally and utterly exhausted.
Mr Hellessey was briefly cross-examined by senior counsel for MetLife. The evidence that I have extracted above was not challenged in detail.
Although I did not have a substantial opportunity to form a view about the credibility of Mr Hellessey's evidence, because of the brevity of the cross-examination, and the lack of challenge to most of his evidence, he did seem to me to be clearly a straightforward witness who attempted to respond candidly to all of the questions put to him.
Mr Hellessey was taken in cross-examination to what he said in par 10 of his affidavit, to the effect that around 31 August 2010, his wife was not sleeping, was withdrawn, emotionally unpredictable, and her only social interaction was with Lorraine Cleary. Mr Hellessey confirmed that from that time Ms Hellessey became worse in comparison to what he had noted before that time.
Mr Hellessey was taken to a Facebook post for 21 October 2010 in which Ms Hellessey had said: "Woo hoo! Off to NSW all Welsh show today!" It was put to him that in his affidavit he was portraying a very bleak picture of Ms Hellessey's condition right at that time.
Mr Hellessey explained that what he meant by using the word "withdrawn" (he said that he did not use the words "socially withdrawn") was that Ms Hellessey was "insular": "she internalised a lot of things, she wasn't talking to me as much as she would normally talk to me" (T 221.33). He denied that Ms Hellessey was going out "actively socially".
It was put to Mr Hellessey that he had tried to create a false impression in pars 9 and 10 of his affidavit, but Mr Hellessey denied that assertion. He was then shown other Facebook posts by Ms Hellessey that showed that on certain dates she attended the National Capital Horse Show and the New South Wales State Palomino Show. The thrust of the cross-examination was the suggestion that it was wrong for Mr Hellessey to claim that his wife's only social interaction at that time was with Lorraine Cleary. Mr Hellessey responded (T 222.47): A. No, that's not what I meant, if you are trying to suggest that posting something on Facebook is a social interaction. I probably mean it more in the physical sense.
It was suggested to Mr Hellessey that it would have been inappropriate for him in the context of his evidence at pars 9 and 10 to say that Ms Hellessey was attending horse shows on at least a monthly basis, going away from home on occasions for three or four nights at a time. Mr Hellessey replied that it was normal behaviour for his wife to attend horse shows. He denied that it was untrue for him to say that his wife was withdrawn, and her only social interaction was with Lorraine Cleary.
The cross examination continued (T 224.25): Q. What I am suggesting to you, so that you understand it… Is that you put this affidavit together to try and paint as blacker picture as possible, didn't you? A. No, I put the affidavit together to try and explain what was going on at the time. Q. You eliminated from it any of the references to the things which Mrs Hellessey does that she enjoys, didn't you? A. No, I make a reference to her going to horse shows.
The cross-examiner then left that subject, and raised the issue of Fairymead. Mr Hellessey accepted that there was no reference to Fairymead in his affidavit.
The course of the cross-examination was then as follows (T 224.40): Q. Why not? A. Why would there be? Q. Was she involved in something to your knowledge called Fairymead? A. Something? Q. Yes. A. To my knowledge?
Mr Hellessey then gave evidence to the effect that Fairymead was the name of his family's residence. The name was chosen by Ms Hellessey. It was a name that Ms Hellessey and Ms Cleary had used for the registration of their horses. It was a name that came from Ms Cleary's husband. There was a Fairymead website that had been created by Mr Hellessey. Mr Hellessey put the services of Ms Cleary's stallions on the website. The family also had a horse float that said: "Fairymead Show Team".
When asked why there was no reference to any of this in his affidavit, Mr Hellessey replied (T 226.45): "I'm not sure why there would be".
In response to the suggestion that Mr Hellessey had failed to tell the whole truth, he adhered to his affidavit by saying (T 227.19) that his recollection of the events was that the statement was still correct.
It appears to be MetLife's case that it is so obvious from Ms Hellessey's frequent participation in horse shows and the like, and the use of the name "Fairymead", that the suggestion that she was socially withdrawn was patently untrue, so that it was an obvious failure for Mr Hellessey not to have recounted these matters in more detail than he did in his affidavit. As I understand Mr Hellessey's evidence, MetLife's premise had not occurred to him until it was put to him in the witness box. He simply did not see these activities by Ms Hellessey as being inconsistent with the evidence he gave concerning the consequences of his wife's PTSD, depressive disorder, and anxiety disorder.
I am prepared to accept Mr Hellessey's evidence. I reject the suggestion that he set about to exaggerate the symptoms of his wife's psychological injury. Apart from that general suggestion, he was not challenged in detail in relation to the evidence he gave. I also accept that Mr Hellessey genuinely did not have a belief in the premise that his wife's involvement in horse shows and the use of the name "Fairymead" was that she was capable of normal social interactions.

[56]

Evidence of Ms Gloria Eves

Ms Gloria Faye Eves is Ms Hellessey's mother. She is a retired nurse. She lives in a granny flat at the same address as Ms Hellessey and her family.
In her 8 November 2016 affidavit, Ms Eves gave the following evidence: 9. I noticed a big change after that, to the point where I used to take the children down to my flat. She used to go off by screaming and crying. If Paul didn't bring the kids down, I would go and get them. After that incident, Bernadette fell apart. In addition to taking more responsibility for the children, I also took them to pre-school and picked them up, and took them to all the things that Bernadette would have usually done like parent days. Over the years since, I have continued to do this role, including taking the kids to parties and sleepovers. 10. I have no idea what Bernadette has been diagnosed with or what this case is about because she will not discuss it with me. She is very closed off and difficult to talk to. 11. Bernadette is a changed woman and much worse after the incident in the Goulburn classroom. Before the incident, she had some difficulties which were mostly under control. After the incident, she was a broken woman. 12. I have observed the following symptoms: a. Bernadette is often forgetful. She has difficulty remembering basic things like doing the laundry or washing the dishes. b. Bernadette cannot relax. She is always on edge. If she is surprised by my cat touching or, or me saying something while she doesn't know I am there, she screams and cries. c. Bernadette is very irritable. I can't talk to her about anything. You cannot criticise her. I can't do anything right. She has outbursts of anger and screaming fits. d. The only time I see her happy or smiling is when she is with her horses. e. Bernadette is often tearful over her little things. If something goes wrong even when she is cooking, she will cry. f. Bernadette gets nighttime paralysis, which is brought on by extreme stress. She doesn't sleep well. g. She has low energy levels during the day. h. Bernadette is very forgetful and distracted easily. She leaves house duties half-done often. She also lacks motivation. i. Bernadette will not go out unless she is surrounded by family, or with friends through the pony club. j. We have to avoid going to certain places so it does not trigger Bernadette. k. She is not confident and has low self-esteem. She is very sad. l. Occasionally, Bernadette will run away. Paul usually finds her standing in a paddock with a horse. m. She suffers from panic attacks. n. She has gained a significant amount of weight. 13. Bernadette is now up and down. She will often spend the whole day in her pyjamas. I worry about her. I am often reminding her that she needs to take her valium if she is going somewhere. 14. Bernadette is now completely the opposite person that she used to be. I can often go for days without seeing her even though we live practically in the same house. I often don't know if she is home or not and she sometimes locks herself in the house. I usually pick up the children from the bus stop. I have to clean Paul's uniform. I try to encourage Bernadette to do more around the house, given I am now facing my own health issues.
Ms Eves elaborated on Ms Hellessey's behaviour in oral evidence in chief. She confirmed that her daughter's condition had become worse since 30 August 2010. Ms Eves has to check every morning to see that her daughter is up. She has to remind Ms Hellessey if it is a school day, and to get the children ready. Ms Hellessey does not do housework. She will look at it, she just sits, and she just cannot do it. She does not cook tea until late at night, so Ms Eves usually has to feed the children. Ms Eves finds it difficult to get her daughter to help with the washing, ironing and housework. Ms Hellessey has a very bad temper. She will abuse her mother if she thinks that her mother has said something that she did not like. Ms Eves has to go to the length every morning of knocking on the outside wall before she opens the door to the main house. If she does not do that Ms Hellessey "just screams and hides, ducks down" (T 292.23). Ms Hellessey will stay in her pyjamas for days and not do her hair. Ms Hellessey has been known to go into town in her pyjamas. She has walked out of the house and forgotten that she had children.
Ms Eves was asked whether she had attended horse shows with Ms Hellessey, and said that she had done so on a few occasions. She gave the following evidence in chief (T 294.3): Q. What do you observe about her when she goes to these horse shows? A. That she doesn't leave her trailer to do anything with the horses or the children. She - if they've talked her into serving at the canteen, she will do that for a little minute, but otherwise, she just hangs around her trailer. She'll brush the horses, whatever - put her - make sure the kids are in the uniform, make sure I've got the uniform on, but she doesn't compete or anything any more.
Ms Eves was not in any way challenged in cross-examination as to the truth of the evidence that she gave about her daughter's behaviour.
She was asked limited questions about what Ms Hellessey did at the Goulburn Pony Club days that she attended, and said that Ms Hellessey usually washed and groomed her horses the day before. She said that Ms Hellessey usually sits under the canteen awning and watches whoever has got her children. Ms Hellessey spends her time with her husband and mother and her two friends, Ms Cleary and Mr Harvey. On occasions when Ms Eves has attended a horse show with her daughter, Ms Eves explained how Ms Hellessey and Ms Cleary groomed the horses and that then Ms Cleary would take the horses out into the ring. There were questions about how Ms Hellessey went about feeding her horses.
There is no reason why I should not accept the evidence given by Ms Eves. She appeared to me to be a genuine and straightforward witness. Her evidence was not challenged, and I accept it.

[57]

Evidence of Ms Maree Manning

Ms Maree Elizabeth Manning is a neighbour of Ms Hellessey. She is a registered nurse. She has known Ms Hellessey since 2012, when the Hellesseys moved to a nearby property. Ms Manning has children of similar ages to the Hellessey daughters.
In her 8 November 2016 affidavit, Ms Manning gave evidence of the behaviour of Ms Hellessey that she has noticed as a result of her interactions with the Hellessey family. She said that when she invited the Hellessey family over on a number of occasions for bonfires and barbecues, Mr Hellessey would turn up with the children, but Ms Hellessey would not come. Ms Hellessey was quite withdrawn on the few occasions when Ms Manning dropped her children over to the Hellessey' house. On one occasion when Ms Manning and her husband were invited by Mr Hellessey for dinner, Ms Hellessey was difficult to engage in conversation and was quite guarded about what she would talk about. Ms Hellessey spent some of the time just standing in the kitchen on her phone or her laptop, avoiding conversation.
Ms Manning said: 13. I don't know of Bernadette being at all social. She is almost always home when I drop by, unless she is away with her friend Daniel at a horse show. I have never known her to be one to go 'out', she seems to feel safer and more content at home with her family. 14 I have noticed that she twitches her fingers, like she is a real fidget. She always has her phone in her hands and it seems to keep her hands busy and possibly is a comfort to her. You rarely get her full attention, like she is unable to concentrate on the conversation at hand. 15. She is very forgetful, and regularly gets Paul to call to ask to borrow, ingredients for dinner, and staples like bread and milk. Almost always Paul is the one who comes over to pick the things up when this occurs. 16. She will nearly always have baseball style cap on with the visor pulled down low, like she is avoiding eye contact. She doesn't seem to take much care with her appearance; I have never seen her in a dress. I don't think I have ever seen her wearing makeup. 17. I make appointments with her sometimes to meet for breakfast after dropping the kids to school, but she nearly always cancels. On the rare occasion when she has met me, she is very guarded and seems to be very irritable and anxious to get home. While we may have a momentary laugh it is short lived. The whole experience generally seems uncomfortable for her. 18. Mostly all of our interaction occurs either at the bus stop or at her house. It is rare for her to attend our property other than to drop the children off or pick them up, and then she will not stay for any length of time. 19. Bernadette has asked me to travel with her on a number of occasions, when she has been required to travel to areas away from Goulburn. I drove on both occasions. On a few occasions she came with me to do some shopping in Canberra, as she was not comfortable going by alone.
Ms Manning was not challenged in cross-examination on the evidence that she gave, and I accept it.

[58]

Evidence of Ms Lahnee (Lorraine) Cleary

Ms Lahnee Lorraine Catherine Cleary has known Ms Hellessey since the latter was a child. She struck up a friendship in around 2008 and 2009 when Ms Hellessey moved to Goulburn. They met together a few times a week, and Ms Cleary gave riding lessons to Ms Hellessey's daughters.
In her 7 November 2016 affidavit, Ms Cleary gave the following evidence: 8. Towards the end of 2010 Berni seemed to be a changed person. She appeared to be broken and to have lost all confidence. She began to ask me to show the horses as she was feeling 'scared' to ride in front of people, or lead the horses in front of people in the show ring. I started leading Berni's children in their riding events because Berni was too anxious to do so. … 11. I remember when she went off work in 2010, because I was happy for her that she could come out and ride her pony daily to relax and would not be restricted to riding only on weekends or after work. We continued to go to horse shows together, but Berni did not show any of the horses herself after she went off work. I did them all with my son, Hayden. 12. Berni asked me to ride her pony in shows for her because she was too 'scared' to do so. I know by her saying 'scared' she was referring to being watched and judged by people and often said she can't stand being near people and 'hated' people. 13. Although we continued to show horses together, Berni distanced herself from the activities within the show circuits. For example, she would not attend the BBQ's or dinners held by the show societies and remained at the camp site, saying she just hated being around people she did not know. Berni was awkward and not social around new people.
Ms Cleary then set out in paragraphs 14 and 15 of her affidavit her evidence concerning Fairymead, which I have extracted above (at par 527).
Ms Cleary concluded by saying: 21. I still see Berni from time to time, but she is a different person to the bubbly young lady I remember. She is withdrawn and what I would describe as a recluse. Each time I speak to her, I remind her of how much fun we used to have and that I wished we could go back to the 'old days' and how much I miss it.
Ms Cleary said in cross-examination that she had owned horses that had her own and Ms Hellessey's name on the papers, but Ms Hellessey had not paid for the horses. Ms Cleary did that because she and Ms Hellessey were very good friends. Ms Cleary said that she did it to give her friend a share in having a show pony.
Ms Cleary was shown a letter written by Ms Hellessey on 24 June 2011 that had a letterhead which included reference to a website (www.fairymead.com). Ms Cleary said that she believed that Ms Hellessey did make a website up "just basically so - like anybody else we like to be show-offs" (T 305.13).
Ms Cleary confirmed that the name Fairymead came from the place where her husband grew up. She said that when they were having tea one afternoon, Ms Hellessey suggested that they establish a little show team and call it "Fairymead". Ms Cleary said (T 305.46): … So Fairymead is nothing, really, except the name. She's got one on her gate. I've got one, actually, that sits on my gate, when I get it to stay up there.
The letter dated 24 June 2011 referred to the purchase of a horse and a receipt from the seller to Ms Hellessey. It also requested that the horse be registered in the joint names of Ms Hellessey and Ms Cleary. Ms Cleary insisted that the horse had been purchased by Ms Hellessey on Ms Cleary's behalf.
Senior counsel for MetLife read out to Ms Cleary an extract from an article in Show Horse Magazine Australia from September 2012, which included (T 306.43): "Fairymead Show Horses - newly formed as a joint stud, but by no means new to the horse world! Fairymead is owned and operated by two horse-mad ladies, who met by chance at 2008 and now share 18 horses on two separate properties in Goulburn, New South Wales".
Ms Cleary responded by saying (T 306.48) that she had never seen the ad, but "we are two horse mad old chooks and - I was the old chook, she was the young chook".
The essence of Ms Cleary's evidence was (T 307.27): *Q. Is that right? It was owned by both of you? A. I think the wording of that was a little bit pretentious, shall we say. I mean, we don't actually own a stud - like, it sounds like we're.. (not transcribable) ..or somewhere like that. Basically, we have a - a - we had just such a good time and we were showing these ponies and it was fun.
Ms Cleary said that she owned two stallions, and there was only ever one foal born and registered.
Then (T 308.32): Q. All right. Well, how did you explain that she had a meltdown and then participated in this article, which describes this joint ownership and operation? A. Because we were friends, and the fact that we are still friends, and as I say, the ponies - if you look through the registrations, you will find that those registrations are all in my name, have been for some time, and one foal we ever bred.
In conclusion (T 309.5): Q. Are you trying to cover up for Ms Hellessey's role in the Fairymead Show Horses? A. The - the term of "Fairymead Show Horse" is a bit presumptuous, but there's a lot of us that do this…
It would be fair, with respect, to describe Ms Cleary's response to questions asked of her in cross-examination as being argumentative. However, the cross-examiner did not challenge the substance of the evidence that she gave in her affidavit. Rather, he attempted to make something of the two ladies' possible participation in something called "Fairymead". Ms Cleary's response was to say, in essence, that there was nothing of significance in the use of the name, and it was something that the ladies did for amusement. I accept Ms Cleary's evidence.

[59]

Evidence of Mr Daniel Harvey

Mr Daniel Nathan Harvey swore an affidavit on 8 November 2016. He was not available for cross-examination, but MetLife consented to his affidavit being read on the condition that no point be taken against it for failure to cross-examine Mr Harvey on any matter.
Mr Harvey discussed his relationship with Ms Hellessey, and their involvement with horses, which included Ms Hellessey purchasing a number of horses from Mr Harvey.
Mr Harvey gave the following evidence in his affidavit: 9. I have noticed Berni's decline over the years and she is now what I would describe as small piece of the person she once was. She has no confidence and is always worried. She needs constant reassurance. I know it took years for Berni to open up to me and be comfortable around me and I know I am one of a very few friends she has. I have never known Berni to go anywhere or do anything outside of the horses. Not even with her family. 10. Berni and I share joint ownership of a number of horses. I generally keep the 'show' horses with me, so I can prepare them for shows and take them to the shows. Berni comes to a few shows a year with me, usually being NSW All Welsh, VIC All Welsh, Canberra Royal and Sydney Royal. 11. I always drive to the shows and show all the horses myself. In the time I have known Berni, I have not seen her show a horse herself. Often when we are driving to the shows, Berni is anxious and jumpy in the car and tells me how much she hates travelling and that we will probably die in an accident She freaks out if I take one hand off the wheel or turn to look at her for a second She tells me I travel too fast and is a terrible passenger. 12. Berni keeps to herself at shows and never attends social functions or parties. I often go out at night and always ask her to come along, but I know in advance the answer will be 'no'. She stays at our cabin and goes to bed. She will usually lock the doors and windows and I have to wake her up to let me in. 13. Berni is always fearful when I am not 'near' her and each time I am not in her sight she says things to me like 'don't leave me here alone, I don't know these people.' If I am not with Berni, and she sends me a text that I don't answer, she always freaks out and asks if I am dead and tells me she is panicking. 14. I often see Berni looking anxious, stressed or teary and I hug her for as long as she wants a hug to try to make her feel safe and secure I know she suffers with PTSD and anxiety and is on medication for it I know that she avoids people socially, because no matter how many times I have tried over the years to get her to come out with me, she has not once done it. Berni didn't attend my 30th birthday party and that was very upsetting for me, however I understood because there would be strangers there, and she would not have been able to cope with that. 15. The good thing about the shows we attend is that Berni can stay at the horse float or stables and does not have to interact with people socially I know she feels safe with the horses around her and I do notice a big change in her demeanour if we have to go to the shops while at the show. Berni rushes through the shops while I lag behind, so that she can get away from people and get back to the horses. If I take her to lunch she always wants to sit as far away from people as she can. She asks me to order our food and doesn't speak to anyone except me.
It is notable that no attempt was made in the cross-examination of any of the witnesses who gave evidence of a close personal relationship with Ms Hellessey that the apparent symptoms and her capacity to interact socially with strangers had improved at any time over the period since 2010.

[61]

Evidence of Dr Anthony Durrell

Dr Durrell has been Ms Hellessey's treating psychiatrist since before the date of assessment for Ms Hellessey's claim for the TPD benefits. He has provided numerous reports, all of which were given to MetLife for the purpose of its determination of Ms Hellessey's claim. The content of those reports has been adequately summarised above in the context of the consideration of MetLife's determination of the claim.
Dr Durrell confirmed in his oral evidence in chief that Ms Hellessey had been a patient of his since 27 September 2010. Over about the last 12 months Dr Durrell had consulted with Ms Hellessey over the telephone or by email. He continued to prescribe significant doses of medication for Ms Hellessey.
Asked when he formed the view that there were no real prospects of Ms Hellessey ever returning to work he said: "usually you get a feel for that after four to six sessions" (T 273.10).
Dr Durrell said that the benefit of being the treating psychiatrist and being able to make a longitudinal assessment was "so you get to see the patient through all the machinations of life and events and through medication trials and dosage adjustments and the psychologists reporting back, and… whole host of things that go on in terms of treatment, you're able to witness that longitudinally and sharpen your prognosis accordingly" (T 274.1).
Dr Durrell concluded that it would be most unrealistic to anticipate psychology interventions improving Ms Hellessey's condition, and that given the level of her entrenched symptoms, it would be unrealistic to anticipate her gaining significant remission, enough to get her back to a level of stability that will allow her to work" (T 274.11).
Further cross-examination of Dr Durrell established that he may not have examined Ms Hellessey in his rooms for about two years, but he had examined her mental state by what he described as telepsychiatry.
Dr Durrell was questioned about his response to being served with a subpoena asking him to produce his notes, at 10:30 AM on 30 November 2016 in his Macquarie Street rooms. He initially said that he gave the process server an appointment time, and then appears to say that he did not adequately address the subpoena as he assumed that typically he would be given two, three or four weeks' notice of the date of the return of the subpoena (T 278.15). He said that if he had known that the subpoena required him to get notes ready in less than seven days he would have attended to it more speedily (T 279.36).
Somewhat bizarrely, Dr Durrell was asked whether he for any purposes used any other names, and he gave a name that he used in meditation circles, and when pressed further, he stated a number of nicknames that he had. I considered the cross-examination to have gone off piste. The issue was not taken further.
Dr Durrell was then questioned about his knowledge of Ms Hellessey's horse related activities, whether if his notes had been available they would have shown that he noted that he had been told about those activities, and whether he could point to where in any of his reports he had informed MetLife about Ms Hellessey's involvement in horse related activities. Dr Durrell did not appear to be able to readily bring to mind where in his many reports he may have mentioned Ms Hellessey's horse related activities, but it is to be recalled that his report to MetLife dated 29 September 2013 dealt in some detail with that issue.
Faced with the suggestion that Dr Durrell should have reported Ms Hellessey's horse related activities to MetLife, Dr Durrell responded by acknowledging that he was "actually annoyed that they ventured without her consent into a private Facebook account" (T 282.21). Asked to explain why he was angry about that, he said that "this was one of her sole outlets to interact with the world. And of course, with her level of suspicion and PTSD… it's just another invasion into her privacy and takes away one outlet, increases her distress and creates more work for psychiatrists and psychologists" (T 282.25). Dr Durrell confirmed that he encouraged Ms Hellessey to become involved and maintain involvement in horse related activities.
On the issue of Ms Hellessey's use of Facebook, Dr Durrell said that it was "therapeutic" and (T 283.17): … Despite all the efforts, including medication, psychotherapy, psychologists, time away from the work, she still quite impaired. And the one social outlet she seemed to have, which was sharing, ventilating over the Facebook is now gone for no good reason, as far as I can see.
Senior counsel again ventured into the area of whether Ms Hellessey might be able to make a living out of some horse related activity. Dr Durrell responded by trying to understand the parameters of the question by inquiring how often, whether in circumstances that suited Ms Hellessey, or whether in the safety of her property. Then senior counsel suggested that Dr Durrell may have been being an advocate, but I took the view that, as an expert psychiatrist, it was reasonable for Dr Durrell to try to delimit the question before responding to a question that was couched in entirely general terms.
Dr Durrell agreed that he was aware of the evidence of Mr Rawling and Professor Mattick about the appearance that Ms Hellessey had exaggerated her symptoms. Dr Durrell observed that they were not treating psychiatrists. He accepted that there was a suggestion of exaggeration, and then asked whether he was required to say whether this changed his opinion.
Senior counsel did not pursue this issue, but rather said that he had completed his cross-examination as far as he could go without access to Dr Durrell's clinical notes. As by that stage of the hearing it was clear that the matter would have to be adjourned, and as Dr Durrell had offered to take steps to ensure that his secretary provided MetLife with his notes, the cross-examination concluded on the basis that if MetLife gave Dr Durrell notice that he was required to attend for further cross-examination after he had provided his notes, he would be required to do so.
That is the last the court heard of the matter. I presume that Dr Durrell complied with his offer to provide MetLife with his notes. MetLife did not take the matter further.
In the result, I do not consider MetLife to have seriously challenged Dr Durrell in respect of the opinions he expressed as Ms Hellessey's treating psychiatrist. The cross-examination should have pursued Dr Durrell's offer to respond to whether anything in the reports of Mr Rawling or Professor Mattick caused him to change his opinions.

[62]

Evidence of Professor Mattick

Prof Mattick provided reports to MetLife dated 13 July 2016 and 4 November 2016. (The latter report simply contained the raw scores on psychometric tests that Professor Mattick had conducted with Ms Hellessey).
Prof Mattick has very impressive qualifications as a psychologist, but I have regarded all of the expert witnesses as having impressive qualifications, and I have not needed, or thought it appropriate, to choose between different expert opinions on the basis of a subjective assessment of the strength of their relative qualifications.
As his first report shows, Professor Mattick examined Ms Hellessey on 13 July 2016. It was clearly a comprehensive examination, as is Professor Mattick's report.
Prof Mattick set out his observations concerning Ms Hellessey's emotional status in considerable detail in part 12 of his report. He said in relation to Ms Hellessey's scores on psychometric tests (the Beck Anxiety Inventory and the Beck Depression Inventory) that the scores caused him to be "concerned that she may be exaggerating or overstating her emotional disturbance on questionnaires". Professor Mattick therefore had Ms Hellessey complete the Minnesota Multiphasic Personality Inventory - Second Edition - Restructured Form, "which has a number of specific scales to assess for symptom validity, overstatement of problems, and indeed understatement of problems". Professor Mattick said that Ms Hellessey's results suggested overstatement of emotional disturbance. Professor Mattick then explained the meaning of her scores in some detail. He concluded: 12.11.10 The results taken together indicate that on four of the five symptom validity subscales there is clear evidence that Ms Hellessey is exaggerating her emotional disturbance. This is not to suggest that she may not have some emotional problems, but she is exaggerating the extent of them.
Prof Mattick then assessed Ms Hellessey's cognitive functioning and set out his results, with the observation that "there was no evidence of lack of effort or motivation or deliberately feigning cognitive dysfunction".
Prof Mattick thought that the appropriate diagnosis for Ms Hellessey was probably PTSD. He said that: "The difficulty is, however, that Ms Hellessey is exaggerating her emotional disturbance". He said that the true level currently is likely to be much lower than she would present. He said: "… She may have suffered the symptoms that she currently complains of in the past, but I am forced to conclude that she does not suffer the extent of them currently". Relevantly, Professor Mattick added: "… I do not accept the notion that she is never likely or capable of ever returning to any paid work, either on a part-time or full-time basis. I accept that she suffers symptoms but they are not as severe as she would have others believe". Professor Mattick suggested that Ms Hellessey's social phobia could be improved by psychological treatments such as cognitive behavioural therapy.
In his oral examination in chief, Professor Mattick explained in some detail the tests and the test results that he and Mr Rawling had administered to Ms Hellessey.
Prof Mattick said (at T 244.44) that taking into account Ms Hellessey's age, and things that he knew about her, he did not think that she was permanently disabled from entering the workforce. He continued by saying that about half of the people who develop PTSD will recover fairly promptly. Some go on with lingering symptoms. He said that once Ms Hellessey has ceased being reminded of the events that caused her PTSD by her continuing involvement in the proceedings she will improve, and she will be much less affected by her symptoms than she currently reports, which in any event she is overstating.
At the end of Professor Mattick's examination in chief I asked him a number of questions (T 245.27). He agreed that some patients with PTSD have a chronic complaint that does not go away. He said that it can take some years for a consensus to develop among appropriate treating professionals that a particular sufferer has chronic PTSD. It is difficult, if not impossible, to tell at the beginning which category a particular sufferer is in. He then offered (T 245.44): Yes, but I think it's important to be aware that the truly disabling disorders which stop people from functioning and working really are those disorders like the psychoses, particularly schizophrenia, which is terribly impairing, and severe - really severe - melancholic depression or bipolar disorders, which create huge problems with the person, so they really - they can't do, basically, much at all - at all. With PTSD, the - the disorders are very important and serious, and they extend from civil war, World War I, World War II, Vietnam, but these individuals who were exposed to these things often got on and - and were able to function and - and do things day today. So the fact there is a disorder continuing does not equate to impairment. There are many people who have depressive disorders that we probably work with, who come to work. They may not be efficient, but they - they work. So I don't think - I just want to be careful that we don't equate the presence of the disorder with - with absolute disability.
In cross-examination (T 255.39) Professor Mattick, in a guarded way, said that he understood and would not disagree with the suggestion that the claim for disability payment was such an extended process that might cause the claimant to be defensive and to put their position forward to say "look how bad I am".
Prof Mattick said (T 256.16): A. Yes, I have no problem that Ms Hellessey does suffer emotional disturbance. The issue, really, before this process is whether she can't work. Related to that is if there's overstatement, and there are obvious incentives, that can be the passage of time that you've pointed to, the process itself, it can be a plea for help, or it can be a financial incentive. To exaggerate still means there's exaggeration. Now, that, for me, then goes to, "Well, can this person actually function?" I'll repeat again that the truly disabling disorders, and this whole process of litigation over, particularly, PTSD, ramps up this disorder to be totally disabling in a way which was never considered quite this previously in decades past. The truly disabling disorders are the psychosis and things like manic depressive disorder, which create huge confusion and disability.
Prof Mattick explained why he thought that Ms Hellessey's symptoms would abate after she ceased to be exposed to the triggers to her PTSD by reason of the proceedings, even though he conceded (T 260.2) that he could not identify literature that supported this conclusion.
Prof Mattick suggested (in a manner that, as will be seen, was promoted in reverse by the psychiatrist Dr Westmore) that psychologists may be more effective in treating PTSD than psychiatrists (T 260.43). He conceded (T 261.28) that no research had been done to prove that people with PTSD who had not successfully responded to the treatments administered by a psychiatrist who has proficiency in this area for five or 10 years, then a repeat of the treatment is likely to be successful. Nonetheless, Professor Mattick said, notwithstanding that Ms Hellessey had had her problem for 12 years and is still on high levels of medication (T 261.46): A … I think that with the treatments that I have outlined, with the cessation of this activity, with the settlement of her claim, she can get on with her life. With some sensible, good-quality treatment, she can improve further. That's what I think can change.
It was evidently Professor Mattick's opinion that Ms Hellessey's psychological injuries would be susceptible of further improvement at this time, if the psychological treatments recommended by Professor Mattick were implemented. Professor Mattick said that he thought that Ms Hellessey had not received the treatment that she needed, and in particular "exposure therapy" in relation to the triggers for her PTSD (T 263.41).
At the end of his cross-examination, I asked Professor Mattick a number of questions that had been prompted by his earlier suggestion that the presence of PTSD may prevent the sufferer from working when the symptoms included psychosis. His evidence included the following (T 265.36-266.22): Q. What I'm aiming towards is an expression of your professional view, but it is a fact that in courtrooms like this many senior qualified psychiatrists and senior qualified psychologists express a view in relation to particular suffers of PTSD and depression, that the consequence is that they will never work again. Is that something you professionally disagree with? A. The simple answer is: yes, I think in some cases that can occur, where the person, particularly, I think it, happens with women who have been sexually abused repeatedly and horribly, I think it can occur with some individuals who are repeatedly exposed to situations where they have no control over risk to themselves, and this happens a real lot. I accept that Mrs Hellessey has been exposed to a range of traumas, but she functioned through much of her career despite that, and I think that, that past behaviour is still kind of where she is, but she has symptoms. I'm not disagreeing that there are - I agree there are some people who are disabled so they can't work, but I don't think Mrs Hellessey is in that category. I think that people who end up there are those who are so badly off because of the uncontrollable events which happened to them which really placed them at great risk, or things which were horrible like rape and repeated rape, or even torture. They're the things that are the impairing ones. Q. So you reject the proposition that police officers who suffer, and I'm going to be shorthand, the sorts of experiences that Ms Hellessey suffered from could develop PTSD with consequences that prevent them from working? A. No, I don't reject that at all, but I think that there's a range of features to the case which I think they each have to be judged on their own merits. Where the history of working, the activity now, which I don't have great insight into what she does or doesn't do, and she did tell me about what she did day to day, her presentation, some aspects of this Court process, which I have talked about a few times and I won't say it again, means that I believe that she can improve. I don't think she is consigned to that group where this is so severe that it's impossible to ever work. Q. But you accept that some police officers would fall into that group who could never work? A. Actually, I have seen through MetLife a couple who are really very badly off. I don't place Ms Hellessey in that group.
Prof Mattick based his report in part upon Ms Hellessey's response to psychometric tests which he interpreted as reflecting Ms Hellessey overstating the psychological consequences of the PTSD from which she suffered. That is a serious issue which I will consider below.
It emerged, however, in the course of Professor Mattick's oral evidence, that he had an opinion about the circumstances in which PTSD could impair the sufferer's capacity to work that differed from views expressed by many other psychiatrists and psychologists to the effect that chronic PTSD and depression could readily prevent the sufferer from being able to obtain and retain employment. Professor Mattick readily accepted that he professionally disagreed with that view. Professor Mattick expressed the opinion that PTSD and depression were unlikely to prevent the sufferer from working unless the psychological injury extended to psychosis. Professor Mattick referred to wartime situations that caused people to acquire PTSD and said that: "individuals who were exposed to these things often got on and…were able to function and…do things day to day".
In so-far-as Professor Mattick expressed those views, he was at odds with the other expert witnesses who gave evidence in this case, as well as all other expert witnesses that have given evidence in the other cases that I have heard that have raised this issue. I refer to the evidence in the other cases merely as background in relation to the scientific question of the possible effects of PTSD and depression on sufferers.
MetLife did not, either as a ground for the third rejection of Ms Hellessey's claim, or in its case at the hearing that Ms Hellessey did not satisfy the PTD definition, directly challenge the conventional medical view that in cases of chronic PTSD and depression, the psychological injury from which a claimant suffers may cause the claimant to be incapacitated in a way that satisfies the TPD definition, even though the injury is not as serious and debilitating as a psychosis.

[63]

Evidence of Mr Peter Rawling

Mr Rawling is a clinical neuropsychologist who prepared reports dated 8 August 2016 and 21 November 2016 for Ms Hellessey. I found Mr Rawling to be an impressive expert witness, although his qualifications were not quite as eminent as those of Professor Mattick.
Mr Rawling's first report reported the results of his review of the documentation and his interviews with Mr and Mrs Hellessey. Mr Rawling also conducted psychometric testing of Ms Hellessey.
Mr Rawling said in relation to Ms Hellessey's response to a psychometric test: Perhaps the first thing to emerge from the examination of her responses was the fact that she chose the extreme response options - "False, Not at all True" or "Very True" - 93% of the time. This is an unusual pattern of responding and would suggest that while denying many symptoms absolutely, she was very much inclined to characterise the symptoms she did have as extreme… The NIM scales screens for the inclination to present an exaggerated picture of disability. Very few psychologically healthy individuals obtain a score this high. However, the inclination to see one's symptoms as being worse than they actually are is relatively common in patients with an established psychological disorder and when compared with such patients, her NIM score was only a little more than one standard deviation above the mean for the clinical group. In addition, she was noted to be consistent in her responding, showing no tendency to respond in an idiosyncratic fashion or to represent herself as being free of minor character faults… In summary then, while showing the inclination common among patients with psychological disorders to see their symptoms in extreme terms, there was no evidence to suggest that she was claiming symptoms not actually experienced. With this caveat in mind, it seemed reasonable to consider that the results for the clinical scales, while inflated to some degree, still provided a reasonably accurate measure of her current level of functioning.
Relevant parts of Mr Rawling's summary and conclusions were as follows: … Recently however, these conclusions concerning her emotional status have been subject to some challenge on the basis of observations gleaned during the course of covert intelligence and from reviewing her FaceBook postings. Through these methods, behaviour has been recorded that, on the face of it, would appear inconsistent with her accounts of the extent of her psychological disability. These methods have some utility in the testing of claims of a physical disorder. For example, if a patient claiming a back condition so severe that he cannot lift any substantial weight or bend forwards beyond 90 degrees, is seen on surveillance videos repeatedly performing lifting and bending movements without any sign of discomfort, the patient's claim of disability could reasonably be regarded as questionable. However, in the case of psychological injury, the utility of these methods of testing a claim is less clear cut. A patient, like Ms Hellessey, claiming extreme social anxiety and associated social withdrawal, might be filmed attending a social event. It might be argued that this is inconsistent with her claims. However, the video tells us little of her psychological state at the time this video was taken. Ms Hellessey for example insisted that if she did attend a social event, it was often at the urging of her treating doctors. She also maintained that she usually steeled herself for this experience by taking Valium but felt very uncomfortable nonetheless and was glad to get away. In this case then, the surveillance evidence is less convincing than it might at first seem to be.
Mr Rawling then explained the steps that could be taken to test the validity of Ms Hellessey's disability, and continued: … There was certainly no evidence of factitious failure on cognitive testing. On personality testing, she showed the tendency, common among people with psychological disorders, to see their symptoms as extreme, but there was again no compelling evidence of exaggerated claims of disability. On the basis of the psychological test evidence then, I considered her claims as to her current level of psychological disability to be valid. I would tend to favour a diagnosis of Adjustment Disorder with Anxiety and Depression over PTSD but in some sense, the diagnosis is immaterial. The important thing is that she has a severe and chronic psychological disability. This disability would, in my opinion, lead to her being classified as having a total and permanent disablement…
As I have observed above, Mr Rawling commented in relation to the vocational assessment report that: "No account whatsoever was taken of her psychological disorder and this being the case, the validity and usefulness of the employment options identified would seem to me to be highly questionable".
In Mr Rawling's second report, he reviewed Professor Mattick's first report. Mr Rawling expressed the opinion: It follows from such results that the scores obtained on the clinical scales measuring things like depression and anxiety may be inflated and thus not provide a true or valid measure of her emotional distress. That is the only objective conclusion that can be drawn from these results. Importantly, while the results for the Validity Scales mean that the results for the Clinical Scales cannot be taken at face value, they in no way exclude the possibility of genuine and disabling psychological disorder and distress.
Mr Rawling said that there was no objective scientific justification for that part of Professor Mattick's report where he said that Ms Hellessey's psychological distress was much less than she would have others believe, and that she does not suffer now to the extent of the symptoms that she had in the past. He said: "Professor Mattick has no valid measure of her current psychological distress from his assessment and therefore cannot quantify or characterise her level of distress".
The conclusion reached by Mr Rawling was: Given this, the chronic nature of her symptoms and the very limited life she has been leading for the past 5-6 years, I concluded that it was reasonable to assume that she had a total and permanent disability. She may have the aptitude to cope with the cognitive demands of a number of jobs but her psychological frailty made it unlikely that she would survive in such jobs long term. This very much remains my opinion.
In oral evidence in chief, Mr Rawling made the following comment on the observation in his first report concerning the anomalous result of Ms Hellessey's psychometric tests (T 144.35): A. Yeah, and this looks at whether the patient's responding is extreme. It's a measure of over reporting of symptoms. Her score of 81 was certainly extremely high, if she was compared to a non-clinical sample, i.e. people without any psychological disorder. If she was compared to a group with genuine mixed psychological disorders, the score was still elevated, but not significantly so. Like a lot of people with a psychological disorder, they tend to see their symptoms in extreme forms.
In cross-examination of Mr Rawling, senior counsel for MetLife entered the ring on the issue of the supremacy of psychiatric as against psychological evidence, and after noting that there were "no psychiatrists in the room" asked whether (T 153.44) it would "be your professional opinion that in this kind of medico-legal setting, the psychological evidence because of that ability to validate things, is a superior basis to make judgments?". Mr Rawling responded: "I wouldn't go that far. I would say it adds significantly to the assessment process, but it is a one only consultation. It's a one only sampling of behaviour".
Mr Rawling maintained that Ms Hellessey's score of 81 on the NIM test, although high, was not so high that it cast doubt over the validity of the testing (T 157.27). Mr Rawling acknowledged that the validity scales when the test was administered by Professor Mattick were much more elevated than his own. Mr Rawling nonetheless accepted that there had to be "an element of exaggeration there somewhere" (T 158.5).
On the subject of Ms Hellessey's Facebook posts, Mr Rawling was asked whether they reflected a normal social interaction. Mr Rawling responded (T 159.30): A. I suppose that's true, but there is no reason why she couldn't do that, even with a genuine psychological disorder. I mean, as I said, she is not going to be totally socially incapacitated every single moment of her life.
Mr Rawling repeated his observation that he had doubts about the usefulness of the Facebook analysis as a measure of Ms Hellessey's psychological state (T 160.41).
Mr Rawling was asked questions about the likelihood that Ms Hellessey would recover once the claim is resolved (T 162.5): Q. Would you expect her condition to get better once this claim is resolved one way or the other? A. I don't know how you could make that claim… She's been - her condition's been stable for four - actually, it's been getting slightly worse over the past four or five years. She's had a lot of treatment from psychiatrists and psychologists. I don't - I know that's what - that's Professor Mattick's view, but I don't know how he arrived at that opinion.
Mr Rawling said in re-examination that the tests that he administered would have told him if there was any deliberate exaggeration by Ms Hellessey, and he had no objective evidence to support that conclusion (T 163.33).
At the end of his evidence, I asked Mr Rawling a series of questions (T 165.18) that led to the following exchange: Q. Yes, so there may be an objective exaggeration which doesn't necessarily imply some sort of simulation? A. That's right. That's why it's all a question of where you draw the line, you know, and we say above this, in my case, that NIM score above 90. If it gets above that, okay, that starts to get suspicious, but that's all. We don't actually know what's driving that high level of responding. Q. I think you have said that acting upon one such test may be invalid if one discounts the ebb and flow of years and years of experience of many people? A. Yes, it just seemed like a big leap to me to take one test result at one time and discount the evidence of four years or five years of observations by her doctors and psychologists, her family, friends. It seemed a big jump to make to me, so that's all out, she's got problems only as bad as she thinks and she's probably got no disability or could certainly go back to work.

[64]

Evidence of Dr Bruce Westmore

Dr Westmore is a forensic psychiatrist, who provided reports stated 9 December 2015, 20 June 2016 and 30 November 2016. The first two reports were made available to MetLife by Ms Hellessey's solicitors for the purpose of their determination of her TPD claim.
In his first report, Dr Westmore concluded that Ms Hellessey suffers from chronic PTSD with significant co-morbid depression and anxiety, and as diagnosed by the treating psychiatrist, Major Depressive Disorder. He said that her prognosis was poor, and that her illnesses were chronic. He noted "very significant functional impairment associated with her chronic psychiatric conditions".
Dr Westmore considered the significance of the vocational assessment report. An extract of the relevant part of his report has been set out above. It will be convenient to repeat part of that extract: A Vocational Assessment refers to her potential transferable skills, but unfortunately assessments of this type are more applicable to individuals who are not psychiatrically unwell. These types of assessments cannot take into account the impact a person's psychiatric symptoms might have on their capacity to function or, indeed, to use any skills which might be transferable from one position to another. PTSD is an illness which is often chronic i.e. the condition can become a lifelong condition from which patients never fully achieve complete remission. That appears to be the case with Ms Hellessey and it is not an uncommon outcome for police officers who are injured in the workplace.
In Dr Westmore's second report, he responded in particular to Dr Bertucen's 17 August 2015 report, in which Dr Bertucen said that Ms Hellessey might be capable of returning to some form of work within 6 to 12 months after her medical discharge from the New South Wales Police Force. Dr Westmore said that: "I strongly disagree with Dr Bertucen's opinion in this regard and indeed the course of her illness and functional impairment is not consistent with his optimistic prognosis regarding her capacity to work".
Dr Westmore was also advised of Ms Hellessey's limited participation in horse shows, her participation in the "Ride with Pride" event, her attendance at the NSW Mounted Police Union demonstration, that she occasionally walked in a park or had coffee at a coffee shop, and her duties as the secretary of a horse and pony association. Dr Westmore responded: You ask whether any of these activities are inconsistent with the diagnoses made by myself and other psychiatrists. The answer to that question is no. Activities you report are extremely limited, particularly if one considers that before she became unwell she was able to function normally in society without any restrictions whatsoever. A number of the activities described are activities which could be done in isolation, away from others and without the need to interact with others.
Dr Westmore confirmed that none of the additional information affected his opinion as expressed in his first report.
In his third report, Dr Westmore was asked to comment on Professor Mattick's report dated 13 July 2016, and Mr Rawling's reports dated 9 December 2015 and 20 June 2016.
Dr Westmore expressed reservations about a psychiatrist expressing a response to the results of psychometric tests conducted by psychologists, as psychiatrists and psychologists have different expertise. However, he passed some general comments in the following terms: The psychologist felt that some results indicated that Ms Hellessey was "exaggerating her emotional disturbance." He goes on to state correctly "this is not to suggest that she may not have some emotional problems, but she is exaggerating the extent of them." I would pass a general comment that patients who are in Ms Hellessey's position are indeed in a very difficult position. The enquiries are not inquisitorial and fact finding, they are adversarial and can be confronting to patients, particularly if they already suffer from a psychiatric condition. The psychologist felt there was sufficient evidence to support the diagnosis of PTSD and he felt that her psychological symptoms and intellectual ability and general psychological functioning was "probably marked by anxiety and a range of other concerns..." The psychologist wrote "whatever her true level of psychological disturbance currently, it is likely to be much lower than she would present... it is much less than she would have others believe... I am forced to conclude that she does not suffer the extent of them currently." I would comment that this paragraph noted on page one (paragraph one) is a little contradictory in my view but nevertheless I think the psychologist has indicated that there is impairment but it may not be at the level she describes or presents at. Professor Mattik [sic] thought her prognosis for improvement was limited, he did not accept "the notion that she is never likely or capable of ever returning to any paid work... I do accept that she suffers symptoms but they are not as severe as she would have others believe... I doubt that she will be interested in further treatment..." I would comment that I don't think it is possible for a psychiatrist or a psychologist to state in an absolute, definitive way that a person will never be able to work again, one needs to look at their current history, clinical presentation and their longitudinal history. On the balance of probability Ms Hellessey will not, in my opinion, be able to work in the foreseeable future as a direct result of her work related psychiatric problems. Will she be able to work in some capacity in five or ten years time, I cannot say either way but I do note the chronic nature of her symptoms to date, her relatively limited response to treatment and as noted by Professor Mattik [sic], her reluctance to receive ongoing long-term treatment which obviously has prognostic implications. The psychologist Mr Rawling, 8 August 2016 noted that Ms Hellessey had not had any employment since her discharge from the Police Force in December 2011. He notes her current levels of functioning including disturbances in her biological functions. This psychologist obtained collateral history from Ms Hellessey's husband and that history has been noted in the last paragraph of page four and on page five as well. Mr Rawling was of the view that based on psychological test evidence her claim as to her current level of psychological disability was valid. He thought she may suffer from an Adjustment Disorder with Anxiety and Depression in preference to PTSD but he thought the definitive diagnosis was immaterial. He wrote that she suffered from "a severe and chronic psychological disability... lead her being classified as being a total and permanent disablement... prognosis is poor."
Dr Westmore stated that while psychological testing had its uses: "Psychiatric diagnoses (medical conditions) cannot in my respectful view be diagnosed using psychological (non-medical) tests".
Dr Westmore's final conclusion should be stated in full: The definitive diagnosis in this particular case is as Mr Rawling has noted, probably of secondary importance. Everybody who has assessed her has agreed that there is something wrong with her, the provisional diagnoses do vary. Based on her work-related history the diagnosis of Chronic PTSD is most likely. She has co-morbid conditions as well, including significant symptoms of depression and anxiety. What might be of importance to the current hearings is whether this woman suffers associated functional impairment. I think the overwhelming evidence is that she does and that her functional impairment is at least moderate and probably severe in its intensity and it is certainly chronic. Professor Mattik was concerned that Ms Hellessey might be exaggerating some of her symptoms but, as I have indicated earlier, that is not uncommon in this adversarial process Ms Hellessey is currently involved in. In my clinical experience this often occurs in direct response to the Defendant's position which is usually one of denial or minimisation of the patient's complaints. Surveillance type investigations which often occur in psychiatric cases, and which most psychiatrists would agree are effectively useless, add to the patient's mistrust in the objectivity of insurance companies, the defendant and sometimes the defendant's representatives. I have no concern that that has happened in this particular case and both psychologists who have passed opinions in this matter are, indeed, highly regarded within the mental health profession. The additional material I have reviewed does not in any way alter the opinions expressed in my previous report. I believe this lady is, on the balance of probability, effectively unemployable and that situation will not alter in the foreseeable future if it ever does at all.
In oral examination in chief, Dr Westmore restated his opinion that there was no realistic prospect that Ms Hellessey would be able to work, and that that had been the case since August 2010 (T 196.24).
Asked about the significance of Ms Hellessey's Facebook posts that were in evidence, Dr Westmore said (T 196.39): A. That history doesn't assist us with a diagnosis, it gives us some idea as to what she might be able to do or not be able to do. In relation to the Facebook issues, I suspect, and I don't know of any studies, but I suspect postings on Facebook are very unreliable in many ways for a number of different reasons. What people say they do, even, and what they feel on Facebook is probably not necessarily a reliable source of information.
I note that this view was expressed on the basis of suspicion, and with the acknowledgement that Dr Westmore was not aware of any studies that dealt with the issue. What he seems to be saying is that social conduct initiated in a claimant's home in front of a computer screen may not be a reliable indicator of how the person may be able to interact in real life face-to-face social settings.
Asked whether it is possible for people with Ms Hellessey's symptoms to be in some respects actively social and travel and carry out some activities, Dr Westmore replied (T 197.14): A. Absolutely. I mean, in my own clinical practice have patients who I have treated for 15, 20 years for this condition who are objectively much more functional than this woman. One will be going to a family Christmas party, they both drive cars, they have a limited selection of friends, they travel overseas, but if you probe beneath the surface they are severely impaired in terms of their overall functional capacity. It's a very superficial functioning and doesn't really reliably tell us what they're really experiencing at any given time, and neither of those patients could possibly ever work, they haven't worked for years.
In cross-examination, senior counsel again introduced the possibility that it would be beneficial for Ms Hellessey if she could obtain employment around horses. Dr Westmore agreed to that suggestion, but he had already said that he did not believe that Ms Hellessey could get a job.
Asked whether he believed Ms Hellessey when she gave him her history, Dr Westmore replied "we have no expertise in truth" (T 199.45). When various matters were put to him from the evidence with the suggestion that they were inconsistent with the history that Ms Hellessey gave to him, Dr Westmore said: "No, not at all" (T 201.23). Dr Westmore ended this aspect of his cross-examination by stating the opinion: "I don't think there's any prospect of her getting to work at all, sir" (T 203.33).
Dr Westmore was then questioned about his knowledge of the evidence of Mr Rawling and Professor Mattick concerning exaggeration by Ms Hellessey of her symptoms. He responded by saying that psychological tests were within the expertise of psychologists. In response to the suggestion that exaggeration and secondary gain "could arise in this very case", Dr Westmore said (T 204.33): A. I don't believe so. If one looks at the chronic nature of her problems, starting, I think, in 2004 and onwards, and the number of independent assessments she's had from various people, independent people - from assessors to treating clinicians, there is a really remarkable consistency in the findings about her.

[65]

Ms Hellessey's Facebook posts

It is necessary to analyse the Facebook posts made by Ms Hellessey that were received into evidence, as MetLife placed great importance on what it submitted the court could infer from those posts as to Ms Hellessey's real psychological condition at the time she made them. MetLife relied upon the Facebook posts primarily to support its submission that by reason of her attendance at many horse shows, or shows like the Royal Easter Show in Sydney that included events related to horses, that Ms Hellessey's claim that she had a social phobia and need to avoid strangers was unreliable. MetLife also submitted that the Facebook Posts demonstrated that Ms Hellessey was often much happier with her life than she made out in her evidence.
MetLife's reliance upon Ms Hellessey's Facebook posts extended to the assertion that the posts should be accepted by the court on their face to prove the matters for which MetLife contended. MetLife called no psychiatric or psychological evidence to explain the significance of the Facebook posts in relation to the diagnosis that Ms Hellessey suffered from PTSD and Major Depressive Disorder.
The Facebook posts that were in evidence were heavily redacted to remove, as I understand it, references to the names of other Facebook users and the comments made by those users. As Facebook posts are generally very brief, and written in a compressed manner, it is sometimes difficult to be sure what the meaning of a post is. It is also difficult to be sure whether posts made at about the same time are dealing with different or the same event. The parties did not provide an analysis of the Facebook evidence in their submissions, although senior counsel for MetLife took the court to many individual Facebook posts which MetLife submitted supported its case.
In the circumstances, the analysis I have undertaken must be understood to be approximate. There is scope for error in relation to the total number of posts, and the number of posts that deal with particular subjects. That should not matter, as it is the overall impression of the significance of the posts, as well as the significance of individual posts that is of importance.
The Facebook posts in evidence are described in the court book index as "Material produced under subpoena by the plaintiff (Facebook records)". While there was not detailed evidence as to what Ms Hellessey was required by subpoena to produce, I will infer in the absence of evidence to the contrary that they are all the Facebook records on Ms Hellessey's computer for the period covered by the subpoena. The file reference on each of the pages includes a reference to the name of the solicitor who had the day-to-day carriage of Ms Hellessey's matter, so it is likely that the solicitor prepared the documents that were produced on subpoena by reference to some electronic copy of the Facebook records on Ms Hellessey's computer.
The Facebook posts constituted pages 1549 to 1753 of the court book (or about 204 pages). The posts appear to be divided into two parts. The first is pages 1549 to 1650, which contain Facebook posts in chronological order from 21 October 2010 to 2 August 2016. These posts will be the primary subject of my analysis, because they contain statements made by Ms Hellessey. The Facebook posts between pages 1651 and 1750 are not in chronological order. Many of the pages contain photographs, almost always of horses, sometimes with people. As I understand it, many but not all of the horses depicted were owned by Ms Hellessey, either by herself or with others. I understand that in some, but relatively few cases, Ms Hellessey is depicted in the photographs with the horses. There are also a significant number of diagrams that depict the consequences of suffering from PTSD. It would be fair to describe most of these diagrams as involving black humour. I counted about 77 additional verbal messages posted by Ms Hellessey. Most concern her pride in and her love of her horses. A small number of messages related to the Ride with Pride event in early 2015. MetLife did not refer specifically to the content of any of these messages in its submissions.
I have not ignored the fact that the photographs that I understand are of Ms Hellessey generally show her to be well dressed and smiling, or at least content.
The most obvious conclusion that follows from an analysis of the chronological Facebook posts is that they deal with a limited number of subjects. A substantial majority of the posts deal with Ms Hellessey's attendance at horse shows, including the Royal Easter Show. A significant number of posts deal with other aspects of horse ownership, such as riding equipment and buying and selling horses. The only other subjects dealt with are the consequences of suffering from PTSD, and there are a number of posts in which Ms Hellessey complains about the tardiness of MetLife in dealing with her TPD claim, and also the manner in which (as Ms Hellessey believed it to be) investigators got access to her Facebook posts at times before those posts were produced to the court in answer to the subpoena.
Remembering that the numbers will not be exact (most particularly because of the risk of miscounting posts made on the same day), Ms Hellessey posted 5 times from 21 October to 31 December 2010, 30 times in 2011, 27 times in 2012, 32 times in 2013, 23 times in 2014, 27 times in 2015 and 11 times from 1 January to 2 August 2016. On an absolute basis, Ms Hellessey did not make a great number of Facebook posts.
It is necessary to be selective in isolating individual posts that may be thought to be relevant to the issues in these proceedings. It must be acknowledged that some posts, being the ones primarily relied upon by MetLife, would suggest if considered in isolation and taken at face value that Ms Hellessey had had a wonderful time at various horse shows, and that her participation was something in the nature of a party.
It appears that Ms Hellessey may have attended three horse shows in the balance of 2010, at least in so far as those shows are referred to in Facebook posts made by Ms Hellessey.
Ms Hellessey attended the Royal Easter Show in 2011, and made about six posts while at or after having returned from the show.
Ms Hellessey appears to refer to at least seven other shows that she attended in her Facebook posts (there is scope for error in attributing Facebook posts to different shows).
On 8 May 2011 Ms Hellessey posted, apparently in relation to the Royal Bathurst Show: Leo the Legend!! 1st led and ridden Australian Pony Stallion, 1st led Arabian Pony Stallion, Champion Australian Pony ridden, Champion led Australian Pony and then took out the Supreme Champion Australian Pony! You rock Leo! Thank u H for your superb riding!
Apart from the fact that Ms Hellessey regularly posted her pride at the success of her horses in shows, this post is consistent with Ms Hellessey's evidence that she relied upon other people to lead and ride her horses at shows. It is not clear who "H" was. I have only noticed one example of a post that suggested that Ms Hellessey may at some time have ridden her own horse at a show. That was in a post on 21 October 2011 in which Ms Hellessey said: "Wishing my best boy Stewie all the luck in the world today in his Part Welsh led and ridden classes! (Lahnee now riding him in Hunter class due to my ankle not being happy)…"
Ms Hellessey attended the Royal Easter Show in April 2012. In October she entered a number of horses for the next show, and in November 2012 she was notified that she had been successful. On 9 January 2012, Ms Hellessey posted: "Whoot whoot! Accepted for Sydney Royal… Go Mickey and Leo!" From time to time Ms Hellessey's posts appear to demonstrate happiness in this manner. One of the posts upon which MetLife relied was the following made on 16 April 2012 when Ms Hellessey was at the Royal Easter Show: OMG poor Mickey got washed at 9pm… He still looks crap and furry! LOL but on a better note, I LOVE BEING AT SYDNEY ROYAL!! Fun fun fun!
Ms Hellessey's posts suggest that she may have attended eight other horse shows during the year. Her posts for 7 May, 2 June, 24 June and 5 August suggest that a Jodie Peever either led or rode Ms Hellessey's horse known as Stewie.
On 25 December 2012, Ms Hellessey posted the following complaint about conduct that she attributed to MetLife: I've followed fellow friends leads and changed my name on Facebook. For all those who don't know, unfortunately Met-life has taken it upon themselves to somehow hack into our accounts and download all data to use against ex police officers trying to get their superannuation payouts. It should be illegal for them to invade our privacy like that!
I will not act on statements of this type on the basis that they are capable of proving any allegation made. However, for reasons that I consider below, the attitude that Ms Hellessey developed towards MetLife's conduct as a result of the delay in dealing with her application and at least the initial two rejections of the application may be relevant to an understanding of Ms Hellessey's later conduct.
In March 2013, Ms Hellessey attended the Royal Easter Show. It appears that she also attended about 11 other horse shows of one sort or another.
Ms Hellessey posted a comment on 10 March 2013: "Had a lovely 2ndday at Goulburn show! Saw so many lovely friends:)… Lots if smiles, lots of ribbons and lots of fun had!" She said on 3 April 2013: "Woo hoo! So proud of Stewie! 5th ridden Part Welsh from 17! Thanks so much to Jodie Peever for her fabulous riding skills! Xxxx". On 25 May 2013, Ms Hellessey posted: "I had a fabulous day at the foal show! It was fabulous to see some of the most amazing people I know! Thank you one and all for the hugs and smiles! Very well run show Mr Gates:)". On 19 October 2013, Ms Hellessey posted: "Well I certainly had a fabulous NSW All Welsh Show with lovely people. Thank you Daniel for everything you do with our pony. Love you both long time.:) And thank you every other single person who made me smile and have fun! Thank you all! Xxxxxxxxxxxxxxxxxxxx"
Ms Hellessey made three posts on 4 June, 13 September and 20 December 2013 concerning her PTSD.
On the last-mentioned occasion she posted: Amongst all the heartache and severe stress that surrounds me at present, not just on my shoulders, but on those in the same situation as me, I am so grateful for the support I have received. I can't begin to thank my blue family that support me! My own family that put up with my erratic behaviour. My oldest, dearest friends who always have my back. And new friends, some I have not even met face to face, have gone out of their way to make sure I am ok and help me. You all know who you are. I'm looking forward to some closure, hopefully not in another 3 years and I'm positive that with you amazing people around me, I won't be a statistic. Looking forward to each day and trying to think positive. I've decided to try and be excited about one thing each day. Even if it's just feeding my chickens. So starting now, I'm excited for tomorrow because I get to help a friend bring her teenage daughter and horse home after a lengthy absence AND I get trusted with something very dear to another person!
Ms Hellessey made posts concerning the conduct of MetLife on 3 January, 21 September, 19 November, 20 November, 25 November, 27 November and 19 December 2013. On 3 January 2013 she said: I'm wondering what METLIFE insurance is thinking of me celebrating our 10th Wedding Anniversary in Sydney? Apparently trying to carry on and enjoy life is a reason for them to knock back a claim. No doubt they are reading this! And the PI that follows and photographs me will actually get a picture of me smiling today! Now there is a reason in itself to knock back a claim!!
On 21 October 2013 she posted: Absolutely hate that my short-term memory is so poor… I'm laying in bed thinking "gosh, did I have a shower tonight?" I don't even remember getting into bed:( Did I tuck my kids in? So I get up and retrace steps… Kids are safe in bed:) But seriously! Thank you MET LIFE for the last 3 years of hell!
Ms Hellessey posted on 25 November 2013: Seriously METLIFE! Disguising yourselves and getting into my family and friends profiles is a joke. Just friend me. I'll tell you how it really is. But to use my innocent niece? You are pieces of shit. We have all the evidence. Kept every single screenshot of your fake profile and all correspondence in between. All this will be passed on to my Barrister next week. Go and get well and truly fucked you pieces of absolute pond scum. I hope you rot in hell. Actually I wish worse for you.
Ms Hellessey does not appear to have attended the Royal Easter Show in 2014. She appears to have attended about 13 other horse shows. Ms Hellessey also posted a number of messages concerning her horse-related activities, including her need to sell horses. Ms Hellessey expressed sadness on 17 March 2014 concerning the need to sell Stewie.
On 16 October 2014 Ms Hellessey said: "Woo hoo! Off we go to the Welsh Show:)". While at the show, Ms Hellessey posted: "Ahhhhh chillin out with lovely people a beer or 6". Upon her return home, she posted on 19 October 2014: We are home safe from the NSW All Welsh Show! Big thank you time, in no particular order! Daniel Harvey because you are just the best person and the best friend a girl could ever ask for. Love you to bits x Lynette Heyne & Luke Heyne for fabulous company, the photos, the use of your tack room and every other thing you both do x Lahnee Cleary for making me laugh as always! Jodie Peever for the hugs, encouragement and for always being so happy for me when my precious pony does well. You are one of the very few people who HONESTLY shows joy on your face when someone else does well (and you think no one is looking)! Pippa Ayrton and the gorgeous Jacinta for being lovely, helpful people, I really appreciate it! PS Pippa, can I take Jacinta home? Cate Edwards-Bott for making my Claire bear feel special. (All I'm hearing is Cate this, Cate that, where does Cate live, can we visit?). Helen Dohan and the Organisers / Committee, stewards, helpers of this show. It is my favourite show of the year and so well run. Well done and Congratulations! The sponsors of the Champion Welsh Mountain Pony Gelding class that we won, Linden stud, Thank you! We had a fabulous show and can't wait for next year!
Ms Hellessey posted complaints about MetLife's handling of her claim on 4 May and 12 September 2014. The latter post reads: As most of you know, I'm still (after 4 years) fighting for my Police Superannuation / Insurance after being hurt on duty and it has been a bloody hard struggle, more so recently. Having to part with my horses has been heartbreaking and with so much sadness and tears I farewelled the beautiful Harley (DNA Sway with me) this week. She has gone to a fabulous home with Katrina Demaio in Victoria who I know will just adore her like I do. Enjoy yourself beautiful Harley girl! We will miss you so very much! Photo is of her new little person who seems to kiss her like Claire did every day:)
Ms Hellessey participated in the Ride with Pride event in March 2015 and she attended the Royal Easter Show in April 2015. She appears to have attended about 10 other horse shows.
Ms Hellessey posted messages about MetLife on 18 January, 26 February and 19 November 2015. On 26 February 2015, she said: Annie Hellessey feeling exhausted. Big F YOU to METLIFE.
Ms Hellessey's 19 November 2015 post was: Annie Hellessey feeling overwhelmed. Another appointment done, another Dr seen. How long can this possibly go on for? 5 years already! Seriously Metlife? You can't break me anymore, I'm beyond shattered.
Ms Hellessey also made posts on 13 October and 18 October 2015 about her PTSD. On the earlier occasion she said [1565]: "This is me. Sadly, it was bought on via Police PTSD and I am on daily medication to control the incidences. So horrendous. If I miss my medications for any reason, bam! I suffer with this: (".
In March 2016, Ms Hellessey attended the Royal Easter Show. She appears to have attended about two other horse shows.
Ms Hellessey made to posts on Facebook concerning her claim. On 10 February 2016 she posted: I can't wait until the day I can actually get on with my existence, as pathetic as it is now, without having cameras following me, or having to explain to insurance companies WHY I take my children to pony club when I'm injured? Despite the fact that my Treating Doctors instruct me to. Really MetLife? It's been 6 years now… I'm pretty sure if I was shonky, you would have got me by now. So, so, so over living in a shell. I haven't even written in a show cents for ever! Gahhhhhhhh. Let me live a little by spending time with my children, without having to justify it.
She made further disparaging references to MetLife on 13 January, 28 June, 29 June and 2 August 2016.
Ms Hellessey made the following post on 18 June 2016 concerning the consequences of her PTSD: Just when you think you have no more to give, PTSD has this message for you… "There is so much more I'm going to take. First I'm going to take your sleep. Then I'll take your smile. I won't let you feel safe anywhere, so I'll take your job. Finally I will transform you so your Partner and your child won't recognise you any more."

[67]

Alleged first constructive rejection

The first issue that must be determined is whether it is open to Ms Hellessey to claim that MetLife constructively rejected her claim before she filed her statement of claim on 18 August 2015, and if it is, did a constructive rejection occur?
I do not consider that this claim is open to Ms Hellessey because, although it was pleaded in her initial statement of claim, the claim was deleted from her amended statement of claim.
In any event, were this claim open to Ms Hellessey, I would have found that it has not been established.
As I have said when considering the applicable legal principles above, I propose to follow the judgment of Stevenson J at first instance in Shuetrim v FSS Trustee Corporation and decide whether or not MetLife has constructively rejected the claim by deciding whether or not on the particular facts of the case MetLife has so unreasonably delayed in addressing the question of whether it was satisfied that Ms Hellessey was TPD as to justify the conclusion that MetLife has not acted with utmost good faith and fair dealing.
MetLife received Ms Hellessey's claim on about 22 January 2012 and notified the Trustee of the first rejection on 22 December 2014, which was almost 3 years later.
A finding of constructive rejection should not be made on the basis merely of the passing of time. It is necessary to consider the reasons for MetLife's delay in making a decision. In this regard it is important to bear in mind what I had to say in Wheeler (above) at [44] where I noted that expert medical evidence had suggested that only about 30% of PSTD cases become chronic. If too early a determination is made as to whether a particular claimant satisfies the TPD definition then the claimant's claim is likely to be rejected on a statistical basis. As I said at [45] "the chronicity of the illness may only emerge as treatments continually fail" so that "too early a determination of whether the illness is permanent may produce a false-negative".
In the case of this particular psychological injury the court should not be too ready to find that an insurer has constructively rejected a claim because that would risk penalising the insurer for taking a careful and prudent course that is consistent with its duty of utmost good faith and fair dealing. It would also tend to have the unsatisfactory consequence of prejudicing the claims of claimants generally by encouraging insurers to make determinations too early.
In the present case, the last of the expert medical reports received by MetLife before the first rejection was Dr Durrell's report dated 29 September 2013. There is evidence that MetLife had waited some time to receive this report. MetLife's first procedural fairness letter was dated 17 April 2014, almost 6 months after the date of Dr Durrell's report. Ms Hellessey's solicitors did not respond until their letter to the Trustee on 9 July 2014. That letter was passed on to MetLife on 31 July 2014. MetLife's first rejection issued about six months later.
It is also of some significance that in his 19 November 2012 report, Mr Ward had supported the suggestion made by MetLife that it should defer making a decision for 12 months. Dr Durrell disagreed with that approach in his 16 February 2013 report. Consistently with what I said in Wheeler, it was not unreasonable for MetLife to accept the advice given by Mr Ward. If the decision was made after the receipt of Dr Durrell's report, that would lead to the deferral of the decision until in or about February 2014. (There are grounds for doubt that MetLife actually acted on Mr Ward's advice. MetLife did not cause Ms Hellessey to be re-examined by any medical expert in or after February 2014. Further, the terms of its first and second procedural fairness letters clearly demonstrate that the suggestion that MetLife would rely upon a later medical report was inconsistent with its view that only reports that were contemporaneous with the assessment date were probative).
An important factor weighing against a finding of constructive rejection is that, given the length of time that did elapse, neither Ms Hellessey nor the Trustee communicated to MetLife a warning that if it did not make a determination within a reasonable, specified time, MetLife's failure to act would be treated as a constructive rejection. Where a significant period of time has elapsed with the insurer taking various steps from time to time to put itself in a position to make its determination, it may be difficult for a trustee or a claimant to establish constructive rejection if they have not, so to speak, made time of the essence by giving an appropriate notice to the insurer.
In all of these circumstances, I am not satisfied that any delay in making the determination in the first rejection involved so serious a breach of MetLife's duty as to constitute a constructive rejection of Ms Hellessey's claim. MetLife's conduct did not in my view involve any breach of its duty of utmost good faith and fair dealing.

[68]

Entitlement to contest the validity of the first and second rejections

The question is whether, even if the first and second rejections would otherwise have been found by the court to be invalid, Ms Hellessey lost her right to challenge the validity of one or both of those rejections by reason of the circumstances in which the Trustee or she requested MetLife to reconsider its determination. The fact is in each case MetLife did agree to reconsider, and then later rejected Ms Hellessey's claim by later determinations.
It is appropriate to consider whether Ms Hellessey is entitled to challenge the first two rejections together, because the circumstances in which MetLife agreed to reconsider each rejection in turn formed a continuum that led to MetLife making its third determination. The consequences of MetLife agreeing to review its second rejection could have a bearing on whether Ms Hellessey remained free to challenge the validity of the first rejection.
As Stevenson J observed in Shuetrim v FSS Trustee Corporation at first instance at [169] relying upon the judgment of Santow JA in Hannover Life Re v Sayseng at [54]: "the obligations of good faith and fair dealing are bilateral". Accordingly, as I have observed above when considering the applicable legal principles, the Trustee, as well as Ms Hellessey when acting as the Trustee's proxy, must show good faith and fair dealing towards MetLife.
In the present context, this principle is likely to have the effect that, where the Trustee or Ms Hellessey requests MetLife to review a determination to reject Ms Hellessey's claim, and MetLife agrees and is put to the expense and trouble of going through another process of determination, the Trustee and Ms Hellessey have by implication agreed to abandon any right they may have had to challenge the validity of the determination that is to be reviewed.
That proposition may be subject to the qualification that if the request for a review is made on a specific basis, which is accepted by MetLife, the Trustee and Ms Hellessey may not lose their right to challenge the determination of the subject of the review if MetLife goes on to reject the claim on some new basis at odds with the agreement for review.
Each case will depend upon its own facts, and the issue will be whether MetLife has conducted the review in a manner consistent with its duty of utmost good faith and fair dealing, and whether conversely it is a breach of the Trustee's duty of utmost good faith and fair dealing (perhaps exercised through Ms Hellessey as the Trustee's proxy) for the Trustee and Ms Hellessey to continue to challenge the determination that is reviewed.
In this case the Trustee requested a review by MetLife of the first rejection on a 24 February 2015. The trustee questioned specific aspects of MetLife's reasoning in the first rejection (pars 328 to 334 above). As I have noted at par 334, it is a fair reading of the Trustee's request, that it expected that MetLife would simply reconsider the existing evidence before it, and take into account the arguments put forward by the Trustee.
Some time passed before MetLife responded to the Trustee formally on 24 February 2015. MetLife made a number of observations and then agreed that it would conduct in good faith a detailed review of its determination. As noted at par 341, MetLife said that it may conduct some further enquiries with a view to obtaining further evidence which was contemporaneous with the assessment date.
The Trustee did not object to MetLife following this course. As it happened, the only significant additional material that MetLife obtained was Dr Bertucen's 17 August 2015 report in which in response to specific questions posed by MetLife, he confirmed the meaning of certain opinions that he had given concerning Ms Hellessey's prognosis as of the assessment date.
MetLife then issued its second procedural fairness letter on 10 September 2015 and its second rejection on 19 October 2015.
Although it is arguable that MetLife went outside the parameters of the review originally requested by the Trustee, it did so only in a limited way by reference to the second report of Dr Bertucen, and the Trustee did not object to that course.
It was on that basis that MetLife went to the trouble and expense of issuing the second procedural fairness letter and making the determination that led to the second rejection. I cannot see how that course on MetLife's part was unreasonable, and conversely, neither the Trustee nor Ms Hellessey could in good faith ignore the second rejection and attack the validity of the first rejection. In the circumstances, if the second rejection was valid then MetLife could have relied upon it, irrespective of whether the first rejection was valid.
The position is somewhat more complicated concerning the fate of the second rejection. The second rejection occurred on 19 October 2015. On 18 December 2015, Ms Hellessey's solicitors provided to the solicitors for MetLife a report of Dr Westmore dated 9 December 2015. MetLife's solicitors responded on 5 February 2016, by suggesting that both parties had obligations of good faith and fair dealing, and that Ms Hellessey could not ask for a reconsideration of the claim while insisting upon the basis of the implied undertaking that MetLife should not be entitled to take into account the evidence served by Ms Hellessey in the proceedings. After some correspondence, on 19 February 2016 the court made orders with the consent of Ms Hellessey that notwithstanding the implied undertaking, MetLife could use any material obtained in the proceedings for the purpose of assessing her claim.
It is plain that Ms Hellessey requested a review of the second rejection, and in consenting to MetLife using the material obtained in the proceedings, she risked MetLife deciding her claim based partly on entirely new material.
There was then certain correspondence whereby Ms Hellessey's solicitors tried to impose a series of deadlines on MetLife's determination of its review of the second rejection. That is a matter relevant to the issue of whether MetLife constructively rejected Ms Hellessey's claim.
On 30 May 2016, Ms Hellessey's solicitors provided a comprehensive written response to the third procedural fairness letter. It was plainly implicit in this response that MetLife was invited to take into account the submissions contained in it in determining Ms Hellessey's claim.
On 27 June 2016, Ms Hellessey's solicitors provided to MetLife's solicitors a further report of Dr Westmore dated 20 June 2016. Dr Westmore addressed matters raised by MetLife in its third procedural fairness letter.
These matters led to MetLife issuing a fourth procedural fairness letter on 31 October 2016. That letter responded to a significant number of submissions that had been made by Ms Hellessey's solicitors.
Finally, in their letter dated 25 November 2016 to MetLife's solicitors, Ms Hellessey's solicitors responded to the fourth procedural fairness letter by requiring that Ms Hellessey's affidavits in the proceedings must be considered by MetLife in its redetermination of the second rejection.
In my view it is clear that by all of these actions Ms Hellessey through her solicitors not only requested MetLife to reconsider the second rejection, but they invited MetLife to go to the trouble and expense of considering all of the material that it received through its participation in these proceedings, including new medical reports and all of the lay affidavits that Ms Hellessey served.
Ms Hellessey thereby took the risk that if MetLife's redetermination of her claim was undertaken properly so that its validity would withstand a challenge by Ms Hellessey, then it would be irrelevant that either of the earlier two rejections by MetLife would have been declared invalid.
Accordingly, in my view in so far as the validity of the three rejections is concerned, the only operative question is whether or not the third rejection was valid.

[70]

Internal MetLife report that TPD finding was probable

It is also not strictly necessary for me to determine Ms Hellessey's argument that the first rejection was invalid because MetLife made the rejection after it had determined that it was probable based primarily on the reports of Dr Durrell that a court would find that Ms Hellessey satisfied the TPD definition.
I summarised the effect of Mr Stevin's internal MetLife email dated 4 September 2014 in pars 241 and 242 above. It is true that Mr Stevin concluded on the basis of the medical evidence that there was strong support for the conclusion that Ms Hellessey satisfied the TPD definition, and that the medical evidence in favour of that conclusion outweighed the contrary evidence. Mr Stevin also stated his view that a court would rule in favour of Ms Hellessey being TPD as Dr Durrell, who strongly supported that finding, was Hellessey's principal treating doctor.
However, as I also observed at par 243, the evidence suggests that Mr Stevin was a claims assessor who reported in his email to Mr Taylor as team leader. Although the evidence is scant, a number of other emails to which Mr Stevin was a party suggest that he may have been a relatively junior officer of MetLife who was responsible for a number of administrative tasks.
In my view, MetLife was entitled to give consideration to all arguments for and against the validity of Ms Hellessey's claim, and to make the determination based upon some appropriate internal decision-making structure. The court must allow that different officers within the decision-making process instituted by MetLife could take different views about the likelihood that Ms Hellessey's circumstances satisfied that TPD definition. Given the complexity of the issue, it would not be surprising that an individual officer charged with the duty to analyse part of the evidence available to MetLife might form a view that favoured Ms Hellessey satisfying the TPD definition. The formation of such a view internally within MetLife would not necessarily oblige MetLife to decide to accept the claim. MetLife could reasonably reject the conclusions reached by individual officers and determine a different outcome, without being in breach of its duty of utmost good faith and fair dealing, provided that overall it directed its mind to the correct questions in making its determination, and provided its process of reasoning was sufficiently reasonable to make the determination of a proper one.
The issue of whether MetLife's process of reasoning miscarried so that its determination is vitiated, depends upon an analysis of the whole of its reasoning, which in appropriate circumstances could lead MetLife to reject preliminary conclusions reached by some of its officers that favoured the granting of Ms Hellessey's claim.
As it has happened in this case, I have found by reference to the whole of the reasoning by which MetLife rejected Ms Hellessey's claim the first time that the rejection would have been invalid, if Ms Hellessey had not lost the right to challenge it. That conclusion could not properly be founded on evidence that within MetLife's decision-making process a junior officer had formed a preliminary view that the medical evidence favoured a conclusion that Ms Hellessey satisfied that TPD definition.

[71]

Alleged second constructive rejection

Ms Hellessey claimed in her amended statement of claim that MetLife constructively rejected her claim before it finally, on the 30 November 2016, rejected her claim in fact for the third time.
MetLife rejected the claim for the second time on 19 October 2015, which must be the start of the period in which MetLife could be required to make a new determination of the claim. Ms Hellessey could no longer measure time from the date of her original application, or any event that occurred before the date of the second rejection, as the actual making of a determination by MetLife in circumstances where there had not been a constructive rejection before that time must logically start the clock running again.
MetLife made its third rejection little more than one year after its second. Ms Hellessey delivered Dr Westmore's 9 December 2015 report to MetLife's solicitors on 18 December 2015. The parties then negotiated the release of the implied undertaking that was put into effect by the court order made on 19 February 2016. The result of the release of the implied undertaking was that MetLife was required to consider a considerable amount of additional material. MetLife then issued its third procedural fairness letter on 11 May 2016. That letter contained a substantial analysis of the available evidence. Ms Hellessey's solicitors provided detailed submissions in response on 30 May 2016. On 27 June 2016, MetLife was provided a further report of Dr Westmore dated 20 June 2016, which addressed some of the concerns in MetLife's third procedural fairness letter. This implicitly invited MetLife to reconsider the views expressed in the third procedural fairness letter.
As I have recorded above, Ms Hellessey's solicitors did attempt in letters written to MetLife's solicitors to fix deadlines for MetLife to make its final determination. On 7 July 2016, they attempted to make the close of business on 19 August 2016 the deadline (see par 435). On 14 September 2016, they tried to make 30 September 2016 the deadline, but with that letter they enclosed a report of Mr Rawling dated 8 August 2016 (see par 438). The solicitors therefore invited MetLife to reconsider the views expressed in the third procedural fairness letter by reference to Mr Rawling's opinion. Ms Hellessey's solicitors then enclosed a further report of Dr Durrell dated 20 October 2013 with their 26 October 2016 letter to MetLife's solicitors.
Thus, although Ms Hellessey's solicitors purported to fix deadlines for MetLife's final determination, the deadline shifted as a result of the solicitors furnishing further evidence to MetLife.
Following the passing of the supposed deadlines, Ms Hellessey did not inform MetLife that she was treating her application as having been constructively rejected. Furthermore, each time Ms Hellessey purported to impose a deadline, she did not threaten that she would treat her claim as having been constructively rejected if it was not dealt with before the deadline. Instead, all that she threatened was that she would re-enliven her referral to the Claims Review Committee.
All of this activity on Ms Hellessey's part prompted MetLife to issue its fourth procedural fairness letter on 31 October 2016. That letter dealt at substantial length with MetLife's view of the significance of the additional evidence that had been provided to it.
Finally, on 25 November 2016, which was only shortly before the day upon which the hearing was to commence on 5 December 2016, Ms Hellessey's solicitors responded to the fourth procedural fairness letter by a letter that asserted that MetLife was required to consider the lay affidavits filed by Ms Hellessey in support of her claim. As I observed at par 519 above, this letter implicitly invited MetLife to make its determination of Ms Hellessey's claim. MetLife responded by notifying Ms Hellessey of its third rejection of her claim five days later on 30 November 2016.
In my view, when the continuity of events following MetLife's second rejection of Ms Hellessey's claim is considered, there was no unreasonable delay by MetLife in making its third determination of the claim. Ms Hellessey through her solicitors continually provided additional evidence to MetLife in circumstances that invited MetLife to consider and respond to that evidence. Ms Hellessey did not insist upon compliance with any of the deadlines that she sought unilaterally to impose upon MetLife. As I have noted, as late as 25 November 2016, Ms Hellessey's solicitors required MetLife to consider evidence in circumstances that clearly invited MetLife to make a final determination, albeit shortly.
MetLife's conduct in relation to the timing of the making of its third rejection of Ms Hellessey's claim did not separately involve any breach of MetLife's duty of utmost good faith and fair dealing in these circumstances, and Ms Hellessey has not established any constructive rejection of her claim.

[72]

Validity of third rejection

It follows from the conclusions that I have expressed above that the real question in this case is whether MetLife's third rejection of Ms Hellessey's claim is valid. If the third rejection is invalid then the court may decide for itself whether or not the incapacity suffered by Ms Hellessey at the assessment date satisfied the TPD definition.
It will be helpful to restate the criterion established by the policies: The Insured Member…having provided proof to our satisfaction that the Insured Member has become incapacitated to such an extent as to render the Insured Member unlikely ever to engage in any gainful profession, trade or occupation for which the Insured Member is reasonably qualified by reason of education, training or experience.
The question therefore is whether MetLife's third rejection was a valid exercise of MetLife's power under the policies to determine whether or not it was satisfied that Ms Hellessey had become incapacitated to such an extent as to render her unlikely ever to engage in the relevant employment. The court must determine whether or not MetLife addressed the correct questions raised by the policies, and whether the process of reasoning engaged in by MetLife was reasonable in the sense that it did not contain defects of logic or judgment that had the result that MetLife had not adhered to its duty to act with utmost good faith. The court must allow MetLife freedom of judgment where it has acted reasonably in the sense just described, and must not find that MetLife's reasoning was defective only because the court would have reached a different conclusion on the evidence.
I have decided, having regard to these considerations, that MetLife's third rejection of Ms Hellessey's claim is invalid.
I have structured my reasons in the following way. First, I briefly outline the history of the process of determination and the contents of each of the third rejection letter, the fourth procedural fairness letter, and the third procedural fairness letter. This is necessary because it is clear from the contents and brevity of the third rejection letter that it was intended to be an addendum to the third and fourth procedural fairness letters. Second, I address the reasonableness of MetLife's treatment of the evidence. Third, I draw upon my explanation of MetLife's treatment of the evidence to address the reasonableness of MetLife's decision regarding Ms Hellessey's activities.
While it is not an entirely comfortable approach, it is appropriate to work backwards in considering the reasonableness of the manner in which MetLife finally determined Ms Hellessey's application, as approaches taken by MetLife in later stages of its determination may reflect changes in positions that it adopted at earlier stages. For this reason, I will consider the third rejection letter first, the fourth procedural fairness letter second, and the third procedural fairness letter third. However, before turning to each of these letters, I will briefly recapitulate the process that led to MetLife's third rejection of Ms Hellessey's claim.

[75]

Fourth procedural fairness letter dated 31 October 2016 (pars 440 to 519 above)

MetLife began its fourth procedural fairness letter by noting all of the additional information that it had received since it sent the third procedural fairness letter (pages 1 to 2).
MetLife stated that it was not persuaded that it would be unsafe or unreasonable to rely on the vocational assessment report (pages 3 and 4).
It then outlined evidence as to Ms Hellessey's prognosis at and around the date of assessment, by reference to medical reports of Dr Falk, Dr Durrell, Dr Bertucen and Mr Ward produced between 3 December 2010 and 30 August 2011 (pages 4 to 5).
MetLife set out further information that had become available concerning Ms Hellessey at or about the assessment date, being aspects of opinions of Dr Durrell made on 17 June 2011 and 1 June 2012 (page 5). MetLife recorded that in the former Dr Durrell had reported that Ms Hellessey had "high levels of social phobia, avoidance, isolation, low confidence [and] panic attacks". MetLife also listed a number of what it described as "equine activities" at about the assessment date.
Then MetLife listed and commented upon a considerable number of Ms Hellessey's activities after the assessment date (pages 5 to 11). These included Ms Hellessey's involvement with the Palomino Association, the Goulburn Pony Club, other competitions, events and shows, Fairymead, and what was described as registration activities. MetLife acquired much of this information from analysing Ms Hellessey's Facebook posts, and also documents produced on subpoena by the relevant organisations. MetLife noted that Ms Hellessey's involvement with the Palomino Association was first documented in the medical evidence in Dr Westmore's supplementary report, and that Dr Westmore's primary report made no reference to her volunteering activities with the Goulburn Pony Club. MetLife made factual assertions such as that Ms Hellessey's involvement with horse-related events was "far more extensive than [she] had previously disclosed and involved a far higher degree of social interaction than [she had] reported". It stated that Ms Hellessey's involvement with some of the clubs involved her in paperwork and communication that was relatively extensive.
MetLife analysed the further independent assessments that it had received (pages 11 to 13). As to Dr Westmore's supplementary report dated 20 June 2016, MetLife considered the report "should not be given any considerable weight" because of material deficiencies in the history provided to Dr Westmore. MetLife summarised the report made by Professor Mattick, and then in relation to the primary report of Mr Rawling dated 8 August 2016, on the basis of "material deficiencies" in the history provided to Mr Rawling, MetLife said that had to be taken into account when determining the weight to be given to his report.
MetLife referred to the vocational assessment report and said that the further information had "now revealed" activities that showed Ms Hellessey "exhibiting a high level of social interaction" and that she had "continued [her] involvement with Fairymead" (pages 13 and 14). MetLife extracted the opinion of Professor Mattick that Ms Hellessey did not satisfy the TPD definition.
Then MetLife responded to the submissions made by Ms Hellessey's solicitors in their 30 May 2016 letter (pages 14 to 17). MetLife rejected a number of submissions made by the solicitors, and then considered Ms Hellessey's claim that she suffered from high levels of social phobia, avoidance, isolation, low confidence and panic attacks. It referred to Dr Durrell's reports of June 2011, 23 December 2011, June 2012 and 16 February 2013 in which the doctor had given opinions that Ms Hellessey suffered from these symptoms. Whilst MetLife acknowledged that "engagement in normal interest pursuits does not necessarily correlate with a capacity to engage in employment", it stated that: MetLife considers that your regular and numerous attendances and travel to shows and events is a relevant consideration when testing your assertions of social avoidance. The activities are not of any lesser merit if you did not personally compete in the shows any attempt to downplay them is misguided. The extent of your activities alone is inconsistent with any claims or assertions that you were, essentially, socially avoidant.
MetLife asserted that Ms Hellessey had "regained the ability and capacity to attend to shopping", whether or not the shopping transactions that it had identified should be attributed to Mr Hellessey. MetLife rejected the assertion that Ms Hellessey's role with the Palomino Association was limited and said that it "prefers the objective evidence produced" on subpoena". MetLife also asserted that the Goulburn Pony Club's records were inconsistent with Ms Hellessey claiming to have ceased to be the secretary of the Club after a month due to an inability to cope. Finally, MetLife concluded that the assertions made by Ms Hellessey as to the limited nature of her involvement with horse shows, as reported in Dr Durrell's 29 September 2013 report and by Dr Westmore in his supplementary report, were "inaccurate" on the basis of the extent of the activities of which MetLife had become aware.
MetLife then rejected Ms Hellessey's submissions in relation to the reliability of the vocational assessment report, on the basis that it did not accept Ms Hellessey's claim that she suffered from social phobia which had led to reduced functional capacity (page 17). MetLife rejected the submission that Mr Everett had not taken into account Ms Hellessey's psychological disorder. It also rejected Dr Westmore's opinion that the vocational assessment report was unreliable because the opinion was "flawed" as Dr Westmore "was not provided with a full or accurate history".
Finally, MetLife dealt with further medical evidence provided on behalf of Ms Hellessey (pages 17 and 18). It observed that Dr Falk's 30 November 2011 report did not contain any explanation or rationale for his opinion that Ms Hellessey was TPD or for what caused him to change his earlier opinion. It suggested that the report: "was most likely directed to assisting the member with the taxation treatment of her HOD payment from NSWPF". As to Dr Durrell's 20 October 2013 report, MetLife observed that the report was directed to considering the conduct of the NSWPF, and that Dr Durrell did not record Ms Hellessey's recent position as secretary of the Palomino Association, or her involvement with Fairymead.

[76]

Third procedural fairness letter dated 11 May 2016 (pars 387 to 426 above)

It is not necessary to summarise all aspects of this letter, as that would involve unnecessary repetition of some issues carried over into the fourth procedural fairness letter.
MetLife summarised the evidence of Ms Hellessey's prognosis at, and around, the date for assessment (pages 4 and 6). It outlined opinions expressed by medical experts at around that time, and noted the opinions expressed by Dr Durrell that described Ms Hellessey's symptoms of PTSD as including "high levels of social phobia, avoidance, isolation, low confidence [and] panic attacks". MetLife concluded: "there is evidence from around the Date of Assessment which is inconsistent with many of [Ms Hellessey's] symptoms as reported by Dr Durrell". MetLife referred to Ms Hellessey's participation in the 2011 Royal Easter Show and transactions on her credit card accounts at various places which led it to conclude: "The level of activity is inconsistent with someone who was experiencing a "high level of social phobia", "avoidance" and "isolation"". In relation to Ms Hellessey's claim that anything police-related was a trigger for her PTSD, MetLife referred to shopping transactions at locations that were 400 m and 500 m from Goulburn Police Station.
In relation to medical evidence and incidents occurring after the date of assessment, MetLife referred (at page 6) to the results of its analysis of Dr Ward's clinical records and its conclusion that "rather than attempting a return to work", Ms Hellessey's goals were to obtain a TPD payment and to "sue".
MetLife summarised its conclusions concerning Ms Hellessey's activities with the Palomino Association and the Goulburn Pony Club, and her additional horse-related activities (pages 6 and 7).
MetLife concluded that it could "not give any significant weight" to Dr Westmore's primary report of 9 December 2015, because it was a "retrospective prognosis" based on an examination "over four years after the Date for Assessment" (page 8). MetLife also noted that Dr Westmore had not been given a number of medical reports that were produced at or about the assessment date and that Dr Westmore had not recorded that he had been informed of the activities in which Ms Hellessey had engaged.
Then MetLife noted that the views expressed by Dr Durrell in his second report were inconsistent with views expressed at or about the assessment date by Dr Falk, Mr Ward, Dr Bertucen and Dr Hodgson, and said that Dr Durrell's opinion concerning the symptoms suffered by Ms Hellessey was inconsistent "with [her] participation in multiple horse competitions, [her] role as secretary with the Association and [MetLife's] analysis of [her] activities from [her] bank records".
Finally, MetLife referred to the vocational evidence, and rejected Mr Ward's 19 November 2012 opinion that the vocational assessment report was unreliable because all of the jobs involved a degree of "interpersonal interactions", on the basis that Ms Hellessey's activities exhibited "a high level of social interaction" (page 9).
In deciding whether the determination by MetLife to reject Ms Hellessey's claim for the third time was sufficiently reasonable in relation to the logic and judgments applied to the consideration of the available information, it is appropriate to look at the process of reasoning on an overall basis, on a basis that tracks the significant arguments addressed by MetLife, and also the individual decisions that MetLife made along the way that underpin the more general process of reasoning that led to MetLife's ultimate determination.

[78]

MetLife's treatment of Ms Hellessey's sworn lay evidence

Each of Ms Hellessey's witnesses swore affidavits on 7 or 8 November 2016 (approximately three weeks before the hearing). Although the purpose of the affidavits was to support Ms Hellessey's case at trial, they were also in part a response to the third and fourth procedural fairness letters, and Ms Hellessey's solicitors expressly directed MetLife to consider her lay evidence in their 25 November 2016 letter.
The conclusion expressed by MetLife on page 2 of the third rejection concerning how it should respond to Ms Hellessey's lay evidence was brief, and is worth repeating: MetLife has carefully considered the affidavits and makes the following comments. While we do not intend providing an exhaustive analysis of every affidavit we note that the member's affidavit falls short of adequately addressing or does not address at all, issues raised in MetLife's letters of 11 May 2016 and 31 October 2016. For example the member has not addressed in any way her involvement with "Fairymead".
On its face, this comment asserts that MetLife has carefully considered all of the affidavits, but refers only to Ms Hellessey's personal affidavit in giving a perfunctory reason for not considering the affidavit to be adequate.
In so far as MetLife limited its response to a consideration of Ms Hellessey's own affidavit concerning her involvement with Fairymead, it was not strictly wrong, as Ms Hellessey's affidavit did not address her involvement with Fairymead. However, as I have observed above at par 527, MetLife's response is in substance wrong, because it ignored the evidence in the affidavit of Ms Cleary, in which Ms Cleary said in part: "Fairymead is and never was a business venture of any sort, it was merely a stud name that we could use to register any foals we had. If we went to shows or sponsored classes at local shows, we would often put it under the name of 'Fairymead Show Team'".
This in my view was a serious error in MetLife's reasoning process. Ms Cleary's evidence was brief, but it was a cogent response to MetLife's reliance upon Ms Hellessey's involvement in Fairymead. It was at least cogent enough that it was unwarranted for MetLife to ignore it completely, and not engage with it.
Upon consideration of Ms Cleary's affidavit, MetLife's statement that "the member has not addressed in any way her involvement with Fairymead" (emphasis added) suggests that, contrary to its claim, it either ignored the affidavits of the witnesses other than Ms Hellessey, or if it gave them consideration, it did not read them carefully enough.
MetLife said more generally in the extract from the third rejection letter that is set out above that Ms Hellessey's affidavit "falls short of adequately addressing or does not address at all" the other issues raised in the third and fourth procedural fairness letters. MetLife's reasoning in this respect is so vague that it effectively precludes a proper analysis, because it cannot be known what issues MetLife was referring to, let alone which issues were not addressed "adequately", and which were not addressed "at all".
The issues aside from Fairymead referred to by MetLife in its fourth procedural fairness letter appear primarily to be Ms Hellessey's involvement in the Palomino Association, her being secretary of the Goulburn Pony Club, her involvement in other horse competitions, events and shows, her Facebook posts, and what was described as her registration activities (see the outline given above at pars 454 to 468).
MetLife made the observation (see par 462 above): The further information indicates that your attendances and travel to various shows and related events…is far more extensive than you had previously disclosed and involved a far higher degree of social interaction than you have reported.
That statement was essentially true in relation to the matter of number and detail. That is not a surprising outcome given the number of years that had passed while MetLife was processing Ms Hellessey's claim. As I have noted at various places above, MetLife has nowhere mentioned in any of its letters that, at the very time that she made her application, Ms Hellessey disclosed her special interest in horse breeding and showing and her membership of horse associations and clubs, by completing spaces in the form that did not make provision for, or seem to invite, further more detailed information.
It would be much too complicated an exercise to repeat the evidence in Ms Hellessey's lay witnesses' affidavits in detail, but the analysis that I have set out above at pars 537 to 547, 611, 628, 639 to 641, and 655, show that those affidavits contained a substantial body of consistent evidence concerning Ms Hellessey's activities and the consequences of her psychological injury, that in significant respects dealt with and explained major aspects of the preliminary considerations stated in MetLife's third and fourth procedural fairness letters.
The evidence of Ms Hellessey, Ms Cleary and Mr Harvey was clearly capable of establishing the genuinely limited involvement of Ms Hellessey in relation to horse shows and events. Ms Hellessey addressed and explained the limited nature of her involvement in the Palomino Association and the Goulburn Pony Club, and her various other activities arising out of her ownership of a small number of horses and her children's engagement in horse riding. All of the lay affidavits, taken as a whole, provided substantial corroboration for the opinions reached by Ms Hellessey's treating medical professionals, and in particular Dr Durrell, concerning the symptoms of her psychological injury.
It is in this respect that it was not a reasonable or proper approach for MetLife to reject all of Ms Hellessey's lay evidence in the manner described in the third rejection letter.
The course that MetLife took was at its heart irrational, because having ignored Ms Hellessey's original, candid disclosure of her interest in horse-related activities, and having apparently formed a firm opinion that Ms Hellessey's activities, as disclosed by the accumulating evidence, were fundamentally inconsistent with her claim that she had social phobia, MetLife simply rejected the contrary sworn evidence of apparently credible, and in some degrees independent, witnesses, without having or expressing any rational or persuasive reasons for having done so.
As I have noted above, MetLife rejected Ms Hellessey's witnesses' sworn evidence as having any significance to its determination of Ms Hellessey's claim only days before the commencement of the hearing. It did not attempt to provide any real reasons for doing so. If MetLife did not consider itself as having sufficient time to give full and proper consideration to the affidavits, and to explain its treatment of those affidavits properly, MetLife's duty to Ms Hellessey required it not to decide Ms Hellessey's claim on the basis of a perfunctory consideration of the affidavits. MetLife should not have sought to gain the advantage of its contractual entitlement to decide its own liability, if it could not do so without giving proper weight to all of the sworn evidence of Ms Hellessey's witnesses.

[79]

MetLife's rejection of Mr Rawling's supplementary report

MetLife first dealt with Mr Rawling's supplementary report dated 31 November 2016 in its third rejection letter.
It started by noting the relationship between Mr Rawling's initial report (dated 8 August 2016) and Professor Mattick's 13 July 2016 report.
It then noted (at page 3) that despite Mr Rawling's earlier agreement about the inflated results of objective testing, Mr Rawling had in his supplementary report formed the opinion that a true or valid measure of Ms Hellessey's emotional distress could not be determined, and that Ms Hellessey was suffering from a high level of psychological distress. It further noted that Mr Rawling had concluded that Ms Hellessey had total and permanent disability. MetLife dealt with Mr Rawling's supplementary report by concluding: We identified in our 31 October 2016 letter our concerns as to the accuracy of the history provided to Mr Rawling. Those same concerns apply to the supplementary report and the relative weight to be given to it. The 18 November 2016 instructions to Mr Rawling did not draw his attention to the Facebook records or the records from the Australian Palomino Course and Pony Association or the Welsh Cob and Pony Society or the Goulburn Pony Club board the Fairymead Show Horses/Stud.
The clear implication is that MetLife regarded this matter as a reason to discount Mr Rawling's evidence.
It is true that Hellessey's solicitors' 18 November 2016 instructions to Mr Rawling did not refer to the Facebook or other records. However, it is clear from the brief terms of those instructions that Mr Rawling was only asked to comment on whether Professor Mattick's 13 July 2016 report or the raw psychometric test results caused him to alter any opinions expressed in his report dated 8 August 2016. Mr Rawling's supplementary report was therefore directed to technical matters, and the dismissal of that report because the instructions did not refer to the Facebook or other records was logically unsound.

[80]

MetLife's rejection of Dr Westmore's supplementary report

MetLife first dealt with Dr Westmore's 20 June 2016 supplementary report in its fourth procedural fairness letter. It noted that the report was provided 'on the papers'. It is not clear what this aside signifies. MetLife accepted and acted upon the supplementary reports of Dr Bertucen and Dr Hodgson that were given 'on the papers'.
MetLife noted that Dr Westmore had recorded that Ms Hellessey "has had limited participation in horse shows, her activities are limited to feeding, watering and saddling horses, brushing manes and applying make-up for competitions. You note that these activities are performed away from people". Further, in relation to the Palomino Association, Dr Westmore had recorded that Ms Hellessey's "duties are limited to signing and sending membership cards to members although [you have] twice been responsible for printing and mailing the newsletter".
MetLife asserted that Ms Hellessey's role as Secretary of the Palomino Association "included more duties than those disclosed to Dr Westmore", and that he was not informed of Ms Hellessey's involvement with Fairymead between January 2011 and June 2015, or about Ms Hellessey's involvement with the Goulburn Pony Club.
That led MetLife to the conclusion (page 12): We do not accept the representation that you "had limited participation in horse shows" is an accurate description of the extent and nature of your participation in horse shows. There are material deficiencies in the history provided to Dr Westmore and MetLife considers his supplementary report should not be given any considerable weight.
As noted above at pars 715 to 717 above, the thrust of Dr Westmore's supplementary report was that he disagreed with Dr Bertucen's opinion concerning the capacity of Ms Hellessey for undertaking the jobs identified in the vocational assessment report relied upon by MetLife.
Dr Westmore's instructions for his supplementary report included all of the significant medical reports that were available, and also the following instructions: I also wish to provide you with the following additional instructions: • My client has had limited participation in horse shows. Ms Hellessey instructs that her duties are limited to feeding, watering and saddling the horse, and brushing the mane and applying makeup in preparation for the competition, usually at the stables or at the float and away from people. • My client participated in the 'Ride with Pride' event. Each day, Ms Hellessey instructs that she attended the horses during the morning, rode during the day, and attended to the horses during the evening, before having dinner with her friend, showering and going to bed at 8:30 PM. • My client attended the NSW Mounted Police Unit demonstration in July 2012. • My client has occasionally to go to the shops, for a walk in the park, or had a coffee at a coffee shop. • My client is the Secretary of the Australian Palomino Horse and Pony Association. She instructs that her duties are limited to signing and sending cardboard membership cards to members upon receipt of the membership application form. Additionally, she has twice been responsible for printing and mailing the newsletter, once in December 2014, and once in June 2015. • Please provide your opinion as to whether any of the activities as outlined above are inconsistent with your diagnoses of high level of social phobia, avoidance and isolation.
The evidence contained in Ms Hellessey's lay witness affidavits supported these instructions. It is true that Dr Westmore was not provided with all of the material discussed by MetLife in the fourth procedural fairness letter, for example, Ms Hellessey's activities involving Fairymead or her registration activities. However, it does not follow that MetLife could fairly or rationally decide that there were "material deficiencies" in the history provided to Dr Westmore with the effect that MetLife would be justified in not giving any considerable weight to his supplementary report, without any further enquiry of Dr Westmore as to whether the supposed deficiencies were in fact material.
As noted above, the final conclusion expressed by MetLife before its explanation as to why it would not give Dr Westmore's supplementary report any considerable weight was that it did not accept Ms Hellessey's representation that she "had limited participation in horse shows". It is the truth of that representation that is most strongly proved by the affidavits of Ms Hellessey, Ms Cleary and Mr Harvey. Even though MetLife did not have those affidavits when it wrote the fourth procedural fairness letter, when it received them it could not reasonably maintain the ground upon which it had effectively dismissed Dr Westmore's supplementary report.

[81]

MetLife's rejection of Mr Rawling's report

MetLife dealt with Mr Rawling's primary report dated 8 August 2016 at page 13 of its fourth procedural fairness letter. MetLife referred to "material deficiencies in the history provided to Mr Rawling", which it took into account when determining the weight to be given to the report. The implication is that MetLife gave to Mr Rawling's primary report the same weight that it did to Dr Westmore's supplementary report.
MetLife explained the basis for its conclusion in the following way: Although Mr Rawling referred to your Facebook records, there is no evidence (it is not listed in the index of documents instructed to Mr Rawling) that he was provided with the extensive Facebook records available and was therefore fully aware of the extent of your activities. Mr Rawling has taken (or been provided with) an inaccurate history about your involvement with the Association and the GPC and especially secretary duties began in August 2013. There is also no evidence that Mr Rawling was provided with any details or provided with a history of your involvement in the period January 2011 at least until June 2015, with Fairymead.
It thus appears that MetLife effectively dismissed Mr Rawling's primary report on the same basis that it did for Dr Westmore's supplementary report.
It is true that Mr Rawling was not provided with specific assumptions concerning the activities of Ms Hellessey identified by MetLife in Ms Hellessey's solicitors' letter of instructions to him dated 11 July 2016. He was provided with all of the primary medical reports that had been prepared.
Mr Rawling interviewed Ms Hellessey himself, which caused him to set out at pages 3 and 4 of his report information provided concerning her life-long interest in horses, her keeping four Welsh mountain ponies on her property, her having been recently on a charity trail ride, and her having shown a pony at the Canberra Royal the previous February. Mr Rawling then said: At this, as in all previous shows over the past six years, she required the assistance of a friend. She would remain by the horse trailer and groom a pony but she could not bring herself to present the pony for judging. This involved simply walking the animal in front of the judges but the thought of doing this could precipitate a panic attack because she could not tolerate people watching her and possibly judging her.
Mr Rawling continued by referring to Ms Hellessey having succumbed to pressure from a friend and agreed in November 2015 to take on the position of secretary at their local pony club, which mainly involved organising monthly rally days. Ms Hellessey was finding it difficult to communicate with people both by telephone and/or email and she would feel "completely overwhelmed by the correspondence requiring her attention. Ms Hellessey gave the job up after little more than a month".
It is true that, if the history given by Ms Hellessey recorded by Mr Rawling is analysed minutely, it does not include all of the information compiled by MetLife in the fourth procedural fairness letter. However, it was clearly a substantial disclosure by Ms Hellessey of her activities in a manner corroborated by the lay witnesses who swore affidavits. The history recorded must have been to a substantial degree influenced by the questions that Mr Rawling asked, and the information that he deemed sufficient to satisfy himself.
These observations serve to illustrate the extremity of the process of reasoning adopted by MetLife. It took the view that it was proper to essentially dismiss the medical reports that supported Ms Hellessey's claim, on the basis that the medical experts had not been given all of the information that MetLife had compiled by the time of the fourth procedural fairness letter. It did that without seeking any confirmation that any omissions of information were material to the opinions formed by the experts.

[82]

MetLife's failure to engage seriously with the evidence of Dr Durrell

As I have already noted, Dr Durrell was Ms Hellessey's treating psychiatrist over the whole of the period from before the assessment date, and the doctor who was responsible for her medical treatment and medical prescriptions. He had a much greater longitudinal experience of treating Ms Hellessey than any other medical professional, including Mr Ward, who was Ms Hellessey's treating psychologist for a considerable period. Dr Durrell was the only medical expert who was in a real position to express opinions concerning Ms Hellessey's need for medication into the indefinite future.
As I have noted above, in its first rejection dated 22 December 2014, MetLife did not initially list Dr Durrell as having provided reports (par 253), and it failed to summarise the contents of his reports, although it did note their existence and record that Dr Durrell supported Ms Hellessey's claim (par 305). MetLife concluded that Ms Hellessey did not satisfy the TPD definition and noted the "only contrary view to this is Dr Durrell".
MetLife essentially adopted the same position in relation to Dr Durrell's reports in its second rejection letter dated 19 October 2015 (see par 371).
As I have concluded (at par 315), MetLife gave undue weight to the medical opinions expressed at or around the assessment date in respect of the first rejection, and also (at pars 372 to 374) in respect of the second rejection. This had the result that, notwithstanding Dr Durrell's longitudinal experience and many reasoned reports, his was a minority opinion when counted against the greater number of preliminary medical opinions expressed at or around the assessment date (when it would be natural for doctors to be optimistic that Ms Hellessey's PTSD would not be chronic).
By the 11 May 2016 date of the third procedural fairness letter, MetLife at page 8 repeated its earlier position that Dr Durrell's opinions were inconsistent with the early opinions of Dr Falk, Dr Bertucen and Mr Ward, and also the opinion of Dr Hodgson, but added that Dr Durrell's description of Ms Hellessey's symptoms was inconsistent with Ms Hellessey's participation in multiple horse competitions, her role as secretary of the Palomino Association, and MetLife's analysis of Ms Hellessey's activities from her bank records.
By the time of the third procedural fairness letter, it appears that MetLife had ceased the approach of relying upon medical evidence that was contemporaneous with the assessment date to the exclusion of later medical evidence. In that and the following procedural fairness letter, MetLife did refer to later medical reports, although it found various ways to discount them if they supported Ms Hellessey's case. It is reasonable to conclude, however, that MetLife remained influenced by its original approach, and that particularly in relation to the way it treated Dr Durrell's later and more substantial reports, it discounted them in part because of a preference for medical reports prepared at or about the assessment date. This conclusion is supported by the fact that in its defence, MetLife only pleaded reliance upon reports prepared between 1 March 2011 and 11 January 2012.
It is proper to look a little more closely at MetLife's repetition of its conclusion that Dr Durrell's opinion was in a minority of expert medical opinion. Although MetLife briefly noted Dr Durrell's later medical reports, and discounted them in part because of its view that Dr Durrell's finding of social phobia and other symptoms was inconsistent with the evidence of Ms Hellessey's activities, MetLife remained substantially influenced by the impermissible approach of treating the medical evidence produced contemporaneously with the assessment date as having paramount significance in comparison to later medical evidence.
MetLife first referred to Dr Falk's original report (pars 220 to 222 above), which gave a contingent opinion that Ms Hellessey may be able to work outside the Police Force in the future. I have considered MetLife's dismissal of Dr Falk's 30 November 2011 report in which he stated that Ms Hellessey was TPD above at pars 509 to 513. In brief, MetLife dismissed the later report because it did not contain reasoning, while it accepted the earlier report which also did not contain reasoning. MetLife also relied upon an unsubstantiated reason for its view that Dr Falk's second opinion may not have been genuinely held by him. Dr Falk was Ms Hellessey's treating general practitioner, and his change of opinion to accord with that expressed by her treating psychiatrist, Dr Durrell, was obviously significant. If MetLife had given proper weight to Dr Falk's change of opinion, Dr Durrell would no longer have been in a minority of one.
I have noted above at par 218 that Mr Ward expressed the view in his 7 May 2013 report that he "[liked] to remain optimistic that [Ms Hellessey] could possibly work again in the future". That was really a statement of optimism, given that Mr Ward said in the same breath that Ms Hellessey was not then fit to work. I have also explained above at par 237, pars 270 to 275 and pars 361 to 368 the chronology of Dr Bertucen's opinions, in which without reasoning he gave an opinion as to Ms Hellessey's prognosis at 31 March 2011. Dr Hodgson did express a definite opinion on the basis of one examination that Ms Hellessey was not TPD, but she was not given the opportunity that she requested of examining Ms Hellessey again.
This analysis shows how MetLife remained influenced by a flawed determination to avoid giving any real weight to the reasoned and repeated opinions of the treating psychiatrist based upon a continuing inclination to give greater weight to medical opinions expressed close to the assessment date.
By the time of MetLife's 31 October 2016 fourth procedural fairness letter, it must be acknowledged that MetLife has mentioned most of Dr Durrell's reports, but apart from repeatedly noting that Dr Durrell had stated that Dr Durrell believed that Ms Hellessey was "severely limited by high levels of social phobia, avoidance, isolation, low confidence [and] panic attacks", MetLife did not ever summarise the basis of Dr Durrell's opinions, or explain why they were wrong, other than to rely upon its own judgment concerning the significance of the activities engaged in by Ms Hellessey.
MetLife made brief references to Dr Durrell's 3 December 2010, 17 June 2011 and 1 June 2012 reports at page 4 of the fourth procedural fairness letter, and at page 15 it referred to his June 2011 and June 2012 reports. At page 15 MetLife said: In June 2011 and June 2012 Dr Durrell reported that you were severely limited by high levels of social phobia, avoidance, isolation, low confidence [and] panic attacks… Dr Durrell's reports above, and his reports of 23 December 2011 and 16 February, 2013, make no mention, nor is there any acknowledgement, of: • your travel to and two daily attendances at the 2011 Royal Easter Show; • your attendance including travel to, various other shows and events; • your frequent attendances at various shopping centres, including those outside your local area (such as Wollongong, Fyshwick and Erina). (Emphasis added)
This statement immediately preceded the following conclusion expressed by MetLife at page 15: MetLife considers that your regular and numerous attendances and travel to shows and events is a relevant consideration when testing your assertions of social avoidance. The activities are not of any lesser merit if you did not personally compete in the shows any attempt to downplay them is misguided. The extent of your activities alone is inconsistent with any claims or assertions that you were, essentially, socially avoidant.
When MetLife made these statements at page 15 of the fourth procedural fairness letter, it did not refer to Dr Durrell's 29 September 2013 report (see pars 192 to 205 above). That is the report in which Dr Durrell considered in reasonably extensive detail the subject matters that MetLife asserted were not mentioned or acknowledged by Dr Durrell, as the basis for its conclusion extracted in the preceding paragraph. That is a strange result, because on the following page 16 MetLife referred to Dr Durrell's 29 September 2013 report in the context of asserting that Dr Durrell did not acknowledge when he recorded Ms Hellessey's involvement in horse-shows all of the activities of that nature that MetLife had discovered.
While MetLife was right when it said that certain identified reports by Dr Durrell made no mention of, and did not acknowledge any of the relevant activities by Ms Hellessey, that was at the least confused reasoning because on the next page it referred to the very report in which Dr Durrell did so.
It is convenient at this point to analyse MetLife's justification for giving no weight to Dr Durrell's many reports.
In his 29 September 2013 report, which was addressed to MetLife and responded to its letter of request dated 3 April 2013 in which MetLife had sought Dr Durrell's comments regarding Ms Hellessey's Facebook posts between 3 April 2012 and 3 November 2012, Dr Durrell gave a detailed response over 4 pages. It is obvious from the terms of the response that Dr Durrell had been able to ask questions of Ms Hellessey concerning the significance of the information in the Facebook posts. The information recorded in the report, and the opinions expressed, are nonetheless clearly those of Dr Durrell.
Dr Durrell dealt with such matters as Ms Hellessey's attendance at the Mounted Police Unit, the Sydney Opera House, a Palomino Awards Night, various horse shows and events, and the Royal Easter Show in 2012 and 2013. These events took place on various dates in 2012 and 2013. Dr Durrell also dealt with a Facebook post made on Ms Hellessey's mother's birthday, in which she had made positive comments in order to alleviate her mother's anxiety about Ms Hellessey's condition.
Dr Durrell recorded the circumstances in which Ms Hellessey participated in these very events in a manner that was entirely consistent with the explanations given in Ms Hellessey's lay witnesses' affidavits. Dr Durrell explained his medical opinion as to why Ms Hellessey was nonetheless TPD.
If one carefully reviews the events and activities detailed by MetLife at pages 5 to 11 of the fourth procedural fairness letter, they appear to be spread over a period from early 2011 to about March 2016. Most of the events are of the same nature as the events considered by Dr Durrell in his 29 September 2013 report. Most of the events would probably involve less possibility of social interaction than going to the Mounted Police Unit, the Sydney Opera House, and the Royal Easter Shows considered by Dr Durrell. The text of the Facebook post referred to by Dr Durrell is not known, but it obviously contained a positive statement by Ms Hellessey, and there is no reason to believe that this statement was materially different to the many positive statements taken by MetLife from Ms Hellessey's Facebook posts and listed in the fourth procedural fairness letter. It is true that Dr Durrell was not asked to comment on any involvement by Ms Hellessey with the Palomino Association or the Goulburn Pony Club.
It is hardly surprising that MetLife has been able to identify many more events and individual activities over a period of more than five years than Dr Durrell was asked to address that took place apparently over a period of less than two years. The events and activities discovered by MetLife do not appear to be materially different to those that were known to Dr Durrell.
In these circumstances it was unreasonable for MetLife to discount Dr Durrell's reports in the manner that it did in the third and fourth procedural fairness letters, and so by implication when it rejected Ms Hellessey's claim for the third time.
One unreasonable consequence of having done so was that MetLife has never given any apparent consideration to the ongoing consequences of Ms Hellessey's medication regime.

[83]

MetLife's rejection of Dr Westmore's primary report

To complete the review of the consideration that MetLife gave to the medical evidence that supported Ms Hellessey's claim, it is necessary to note that Dr Westmore's primary report dated 9 December 2015 was dealt with in the third procedural fairness letter dated 11 May 2016 at page 7. MetLife there stated that Mr Westmore did not appear to have been provided with the questionnaire of Dr Falk dated 10 March 2011 and Mr Ward's questionnaire of 18 May 2011, which were described as "the two most contemporaneous opinions, from your treating GP and treating psychologist, to the Date for Assessment". MetLife then stated: … In order for Dr Westmore to provide any reliable opinion about your prognosis at the Date of Assessment, which he has purported to do, he should have been provided with and reviewed that medical evidence.
MetLife then noted that Dr Westmore had not been provided with the supplementary report of Dr Bertucen in relation to the meaning of his examination on 30 August 2011.
MetLife then referred to an apparent failure to report to Dr Westmore the "activities which MetLife considers were relevant to considering your functioning around the Date for Assessment and also subsequently. These include, most notably, your participation in the 2011 Royal Easter Show and your subsequent role as secretary with the Association".
Finally, and apparently most significantly, MetLife said: Importantly Dr Westmore examined you on 19 November 2015, that is over four years after the Date for Assessment. This being the case, and especially in the circumstances where it appears that Dr Westmore was not provided with significant medical evidence from your treating practitioners MetLife cannot give any significant weight to his retrospective prognosis. (Emphasis added)
It thus appears that MetLife ruled out giving any significance to Dr Westmore's primary report on the basis that Dr Westmore examined Ms Hellessey over four years after the assessment date. That appears to be a clear failure by MetLife to ask the right question, as required by TAL v Shuetrim.
MetLife also decided to reject Dr Westmore's report because of its own view that the report was unreliable because Dr Westmore had not been informed of Ms Hellessey's activities as identified by MetLife.

[84]

MetLife's reliance upon the vocational assessment report

In the fourth procedural fairness letter (pages 4, 13, 14, 16 and 17), MetLife rejected the submissions made by Ms Hellessey's solicitors in their 30 May 2016 response to the third procedural fairness letter as to why the vocational assessment report was not reliable.
The solicitors had made responses to each of the jobs identified by Mr Everett, and also explained, in the paragraphs set out above at par 501, that not only did Ms Hellessey suffer from social phobia, she also suffered from paranoia, often overreacted to or misinterpreted what was said to her, had a significant reduction in her functional capacity, and suffered from unstable moods, panic attacks, and aggressive outbursts and sadness.
The solicitors referred to and set out the observations that I made in Wheeler at [48] concerning the variability of the symptoms of chronic PTSD and that the illness "affects employability because it undermines the sufferer's cognitive capacity, reliability, sociability, energy and motivation, among other disabilities".
The solicitors referred MetLife to Dr Durrell's 16 February 2013 report concerning the validity of the vocational assessment report (par 189 above) and Dr Westmore's comment on the same subject (par 380 above).
At page 14 of the fourth procedural fairness letter, MetLife began by referring to Mr Ward's rejection of the vocational options in the report because they involved a degree of "interpersonal interactions". MetLife then referred to what "the further information has now revealed" being that Ms Hellessey had taken up an unpaid position as Secretary of the Palomino Association, and had attended numerous horse and pony shows or competitions "exhibiting a high level of social interaction and had continued your involvement with Fairymead". MetLife then referred to the opinion of Professor Mattick in his 13 July 2016 report, in which he referred to Ms Hellessey's employment history and stated: "I do not accept the notion that she is never likely or capable of ever returning to any paid work, either on a part-time or full-time basis" (par 681 above).
MetLife returned to the issue of the reliability of the vocational assessment report at page 17, where it asserted that the challenge "is based on the assertion that you have reduced functional capacity because of your social phobia. We have indicated above that we do not accept the claim of social phobia".
In my view it was a material flaw in the reasoning adopted by MetLife in rejecting Ms Hellessey's claim for the third time that it focused exclusively, or effectively exclusively, on the component of the symptoms of Ms Hellessey's PTSD and depression that was identified by her treating medical professionals as involving social phobia. MetLife effectively ignored the other aspects of Ms Hellessey's disability which had been identified by the medical professionals and repeated in Ms Hellessey's solicitors' letter. I make that finding notwithstanding that in the heading on page 15 of the fourth procedural fairness letter, MetLife had referred to "High levels of social phobia, avoidance, isolation, low confidence [and] panic attacks". Although there is some overlap in these symptoms, MetLife appears to have focused almost exclusively on social phobia, and to some degree avoidance and isolation. I do not accept that MetLife gave proper weight to all of Ms Hellessey's symptoms.
For MetLife's determination to be reasonable, it was required to identify objectively all of the symptoms of, and disabilities caused by, Ms Hellessey's psychological injury has reported by Ms Hellessey and her medical experts, and take all of them into account in determining her capacity to engage in relevant employment.
MetLife then responded to Mr Rawling's conclusion that the vocational options identified were "highly questionable" because they only took into account Ms Hellessey's transferable skills and the local labour market "and not your psychological disorder". MetLife rejected that submission. It referred to the fact that Mr Everett had recorded that Ms Hellessey had been diagnosed with PTSD and "consistent with the main symptoms you assert prevent you from working" Mr Everett recorded that Ms Hellessey was "isolating herself socially". MetLife then concluded that: "Mr Everett explicitly excluded vocational options (such as security officer and national parks worker) for which you would otherwise be qualified, but due to your claimed illness, he concluded would not be suitable".
When one goes to the vocational assessment report (see par 225 above) one sees at page 2 that Mr Everett focused on Ms Hellessey's social isolation, but he also referred to her lack of motivation. However, when one goes to the statement he made to identify the vocational options that he considered and discounted, one finds that he said (at page 7): "based on the reported traumatic experience of having a loaded weapon pointed to her head, roles that involve the use of weapons have been discounted. These are roles such as security officer and national parks worker". It is necessary to match that statement against MetLife's statement at page 17 of the fourth procedural fairness letter that is set out in the preceding paragraph.
The reality is that Mr Everett only excluded occupations that involved the use of weapons. While he was aware that Ms Hellessey claimed to suffer from social phobia, there is no evidence that Mr Everett took into account the full extent of Ms Hellessey's psychological injury and assessed the available occupations having regard to the realistic possibility that Ms Hellessey could obtain and retain those jobs.
MetLife's rejection of Ms Hellessey's submission that the vocational assessment report was unreliable was extremely unbalanced, and slanted to a degree that in my view was far outside the ambit of MetLife's entitlement to make its own judgments provided that they were reasonable.

[87]

MetLife's reliance upon Professor Mattick's report

It must be acknowledged that Professor Mattick is a highly regarded psychologist, and that he provided to MetLife a thoroughly reasoned report that was of a nature that could reasonably be relied upon by MetLife in determining whether it was satisfied that the information established that Ms Hellessey was TPD.
It is clear from the fourth procedural fairness letter that MetLife relied upon Professor Mattick's opinions in support of its conclusion that Ms Hellessey's claim should be rejected. I would accept that MetLife placed considerable weight on Professor Mattick's opinion, and it was entitled to do so at least in so far as the terms of that opinion were considered.
The principal problem with MetLife's reliance upon Professor Mattick's opinion arises out of the fact that in my view MetLife had unreasonably rejected the reports prepared by Mr Rawling, when Mr Rawling was the psychologist who was retained on behalf of Ms Hellessey to deal with the subjects addressed by Professor Mattick in his reports. As I have noted above, as a psychologist Mr Rawling was primarily retained to deal with the same technical issues as Professor Mattick, but his reports were essentially rejected in their entirety because Mr Rawling had not been provided with all of the evidence of Ms Hellessey's activities that MetLife thought was significant.
In a similar way, MetLife had rejected the evidence of Dr Durrell and Dr Westmore, who were psychiatrists, so the consequence was that MetLife produced a result where there should have been expert competition to the views expressed by Professor Mattick, but there was not.
It may be added that MetLife did not think to provide Professor Mattick for the purposes of the preparation of his reports with assumptions concerning Ms Hellessey's activities that were consistent with the case that she was presenting. The consequence has been that Professor Mattick has not provided his opinion concerning whether Ms Hellessey satisfied the TPD definition at the assessment date, based upon assumptions of fact consistent with Ms Hellessey's witnesses' affidavits.
It may have been impracticable for MetLife to do so, given that it made the third rejection so quickly after receiving the witnesses' affidavits and so close to the commencement of the hearing. In any event, it seems likely from Professor Mattick's reports that he would not have viewed that information as being significant.

[88]

MetLife's determination of the significance of Ms Hellessey's activities

Ordinarily, the issue of whether the evidence available to MetLife supported a particular conclusion would be a matter within MetLife's entitlement to evaluate the evidence and draw conclusions, but it may be noted that in many minor respects MetLife has consistently made errors in its own favour, and drawn conclusions that support its own general thesis. However, it has not been necessary for me to rest my own conclusion as to the reasonableness of the way in which MetLife rejected Ms Hellessey's application for the third time on that ground.
Along the way to making its final determination, MetLife made a great many individual decisions that are pertinent to the overall reasonableness of the outcome. An analysis of the effect of those decisions requires more than a superficial consideration of MetLife's process of reasoning, and requires a serious analysis of the significant features of that process.
The most significant feature of the reasoning process adopted by MetLife that emerges from a consideration of the summary set out above is that MetLife decided that it, as a lay organisation, should decide for itself what relevant activities Ms Hellessey had engaged in both at and around the assessment date, and subsequently up to the time of the third rejection.
Having identified the nature of Ms Hellessey's activities from the available information, it then made its own lay judgment as to the physical and psychological significance of those activities in relation to whether they were consistent with the physical and psychological symptoms and incapacities that Ms Hellessey and the medical experts who prepared reports in favour of her case had claimed that she suffered from.
MetLife did not describe in any elaborate or positive way what the extent of Ms Hellessey's activities was, or why they were inconsistent with her having the claimed disabilities. It asserted that Ms Hellessey's activities were inconsistent with her claimed symptoms.
It then recorded in various ways that the reports prepared by the medical experts who supported Ms Hellessey's case either did not refer to her activities at all, or did not refer to them to the extent that MetLife thought was necessary. On that basis, MetLife either rejected the medical reports or decided to give them insignificant weight. The consequence of MetLife's having put aside Ms Hellessey's supporting medical evidence in this way was that there was nothing to weigh against MetLife's own conclusions of fact, or the medical opinions upon which MetLife chose to rely, that rejected the claim that Ms Hellessey satisfied that TPD definition at the assessment date.
MetLife maintained this position in the face of all of Ms Hellessey's sworn lay evidence.
In considering the reasonableness of the process by which MetLife reached the conclusions that MetLife it did concerning the significance of Ms Hellessey's activities, it is appropriate to start by remembering that one of the significant points made by MetLife in the third procedural fairness letter was that it considered that Mr Ward's notes justified the conclusion that Ms Hellessey's goal in 2013 was not to attempt to return to work, contrary to the advice of her general practitioner, Dr Falk, but was to obtain a TPD payment and to sue to recover it. In the absence of any evidence from MetLife as to how these observations influenced its subsequent decision-making process, it would be reasonable for the court to find that afterwards MetLife considered Ms Hellessey to be a claimant who had made a decision, contrary to medical advice, to pursue the TPD benefits rather than to attempt to recuperate herself by seeking work.
I have analysed Mr Ward's notes in detail above at pars 403 to 410. In summary, I concluded that MetLife had seized upon aspects of Mr Ward's note of 12 February 2013 in a manner that took those aspects out of context, and seriously failed to evaluate the information in all of the notes in a balanced way. Mr Ward's notes were consistent with Ms Hellessey having the serious symptoms she claims to have. Ms Hellessey made significant disclosures to Mr Ward of her horse-related activities, contrary to MetLife's conclusion that Ms Hellessey had suppressed this type of information from her treating medical professionals. The language used by Mr Ward more suggested that Ms Hellessey's goal was to bring her application for the TPD benefits to an end, if necessary by suit, rather than that she had expressed a goal of obtaining the benefits rather than working.
The natural consequence of MetLife holding this view as to Ms Hellessey's goals would be to colour its thinking about the significance of her activities in a negative direction.
It should also be noted that there appears to be no evidence in the documents produced by MetLife that it ever noticed, or took into account, that Ms Hellessey had candidly disclosed her special interest in horse breeding and showing, and her membership of horse associations and clubs at the time of her initial application (see par 169 above).
MetLife explained its attitude towards Ms Hellessey's activities in its fourth procedural fairness letter. I have summarised the parts of that letter that set out MetLife's consideration of Ms Hellessey's activities after the date of assessment at pars 456 to 468 above.
It was entirely reasonable for MetLife to be suspicious about the veracity of Ms Hellessey's claims when it became aware of the extent of her horse-related activities, the positive comments she frequently made on Facebook concerning her involvement in those activities, the appearance that she had undertaken administrative roles with the Palomino Association and the Goulburn Pony Club, the descriptions of her roles with Fairymead, her registration of horses, and the retail transactions that her banking records suggested that she may have engaged in. The problem is that MetLife drew conclusions based upon that information, and consequently adopted a process of reasoning in rejecting Ms Hellessey's claim for the third time, that was so unreasonable that the court must treat the rejection as invalid. I will address each aspect of MetLife's determination in turn.

[89]

Horse related shows and events

First, in relation to Ms Hellessey's attendance at horse-related activities such as shows and related events, MetLife has in my view determined the number and frequency of such activities, and concluded per se that Ms Hellessey's attendances must have involved substantial levels of social interaction that were simply incompatible with her having social phobia, avoidance behaviour, and at least some other of the symptoms that she claimed to have.
That would not be an unreasonable conclusion for MetLife to reach on the evidence if there were not countervailing evidence to explain Ms Hellessey's activities in a way that was consistent with her being incapacitated in the way that she claimed.
MetLife had countervailing evidence of that nature in Dr Durrell's 29 September 2013 report (pars 192 to 206 above). Dr Durrell not only reported as to the restricted nature of Ms Hellessey's engagement in the horse-related activities, and her reliance upon friendly assistance and medication, but also said that he was aware of it and had advised that it should continue, and nonetheless gave the opinion that Ms Hellessey was TPD. Mr Ward reported similar matters, although less extensively (see pars 209 and 215 above). Dr Hodgson made a brief observation in her first report to similar effect (see par 227 above). See also Dr Westmore's supplementary report (par 434 above).
Unsurprisingly, the information that Ms Hellessey provided to MetLife through the various doctors was consistent with her version of the extremely restricted nature of her involvement in the horse-related activities, and not the relatively unrestricted activities that MetLife ultimately concluded were involved. There remained reasonable scope for contention about whether in fact Ms Hellessey's activities were as restricted as she claimed. However, MetLife was clearly on notice that it was Ms Hellessey's case that in fact she only engaged in the activities in a restricted way as a result of her actually suffering social phobia and isolation, and the other symptoms of her PTSD and depression from which she claimed to suffer.
In determining for itself whether or not it was satisfied that Ms Hellessey had symptoms that satisfied the TPD definition, MetLife was entitled to evaluate the evidence in a reasonable way. However, it is in this respect that the receipt by MetLife of all of Ms Hellessey's witnesses' sworn affidavits becomes significant.
In my view it was not reasonable for MetLife to reject Ms Hellessey's sworn lay evidence out of hand just because it painted a different picture of the psychological significance of Ms Hellessey's activities than that MetLife had chosen to adopt. The available evidence may have been consistent with MetLife's conclusions, but it was equivocal and capable of explanation. Ms Hellessey's witnesses' evidence provided an explanation. It may have been within MetLife's contractual province if it had given due weight to both the evidence that it had accumulated and the sworn evidence of Ms Hellessey's witnesses. It did not do so. Without any real explanation, it simply rejected evidence that was inconsistent with its own conclusions that were inherently contestable.

[90]

Facebook posts

It was also plainly reasonable for MetLife to be suspicious of Ms Hellessey's claim having regard to many of the statements that she posted on Facebook that outwardly suggested that she had experienced good times while engaged with other people at various horse-related activities. These statements are listed at pages 6 to 10 of the fourth procedural fairness letter. It is sufficient to note examples like Ms Hellessey stating: "It was fabulous to see some of the most amazing people I know! Thank you one and all for the hugs and smiles". She also said: "love being at Sydney Royal!! Fun fun fun!". As a final example, she referred to "chilling out with lovely people a beer or six".
If these statements reflected Ms Hellessey's ordinary state, or even her emotional state when in social company, they would be completely inconsistent with the existence of social phobia and isolation and at least some of the other symptoms claimed by Ms Hellessey and her doctors. The question is whether MetLife's evaluation of this evidence was reasonable in all of the circumstances.
As has been mentioned in various places in these reasons, the yardstick for determining the reasonableness of MetLife's evaluation of this evidence is whether it justified MetLife in summarily rejecting all of Ms Hellessey's witnesses' sworn affidavits, and substantially discounting all of her expert medical evidence because the experts had not apparently been given all of the information available to MetLife.
It must be accepted that people can make admissions on Facebook no less than any other form of medium, and that once a statement has been made it may be taken to be real evidence.
However, it must also be accepted that statements made on Facebook are made in a totally different social context than statements actually made spontaneously in real social interactions. Facebook posts are often made in private and may be composed and possibly even contrived to create some appearance that does not reflect reality.
While a superficial review of the activities and statements recorded by MetLife in the fourth procedural fairness letter gives the impression that Ms Hellessey made a great many Facebook posts, that impression is misleading because the letter covered the period from August 2011 to March 2016, almost 5 years. The Facebook posts were almost always related to particular horse-related activities, of which according to my account there were 4 in 2011, 7 in 2012, 12 in 2013, 8 in both 2014 and 2015, and 5 in 2016. The Facebook evidence tends to diminish in significance when it is appreciated how rare in fact the communications took place. It is a large step to extrapolate from the evidence to a conclusion that Ms Hellessey generally did not suffer from social phobia, isolation and other symptoms of PTSD and depression.
I have set out above at pars 729 to 765 my own analysis of the Facebook posts that were received into evidence. That analysis refers to many of the Facebook posts referred to by MetLife in the fourth procedural fairness letter. However, when the posts are evaluated fully, there is considerable justification for finding consistency between many of the posts and the symptoms claimed by Ms Hellessey.
It must be remembered that almost all of the expert medical evidence confirms that Ms Hellessey suffered from PTSD and depression over the whole of the period from the assessment date to the date of the third rejection (and Mr Rawling said that his different diagnosis was immaterial). Accordingly, it would be unreasonable for MetLife to evaluate the Facebook posts in the same way as if they had been made by a person of ordinary psychological health. The posts were made by a person who the weight of medical opinion established was sufficiently psychologically injured to be unable to work at the present. Reasonable decision-making on MetLife's part would require it to be sensitive to the dangers of judging the significance of statements made in an artificial context by a psychologically injured person by applying the norms that would be true for psychologically healthy people.
In this case MetLife had been given specific advice by Dr Durrell that "contacts on Facebook do not represent real life friendships" (par 194 above), and Dr Hodgson said "Ms Hellessey may appear happy in her Facebook postings, but I am unable to give a professional independent opinion as I am doubtful whether or not credence can be given to Facebook comments and photos. These may not have been independently verified and they may not be reflective or indicative of her usual status" (par 231 above). In my view those statements by the medical experts reflect a common sense approach to the significance of Facebook posts made by a psychologically injured person.
It is in this respect significant that MetLife did not take the step of submitting the evidence to any independent medical expert with a request that the expert give advice about the significance of the Facebook posts.
It instructive to note the basis upon which MetLife retained Professor Mattick and the contents of his report in so far as it bears upon the significance of all of the activities of Ms Hellessey relied upon by MetLife. MetLife provided to Professor Mattick in its solicitors' 6 July 2016 letter of instructions, a significant proportion of the documents from which it drew the findings in the fourth procedural fairness letter, including the 29 September 2013 report of Dr Durrell in which he discussed Ms Hellessey's horse-related activities and certain Facebook status updates, a social media report dated February 2016, material produced under subpoena by the Royal Agricultural Society of NSW, material produced under subpoena by the Palomino Association, and documents produced by Ms Hellessey on subpoena (being primarily her credit card statements).
Professor Mattick summarised some of this information in par 7 of his 13 July 2016 report, including Ms Hellessey's involvement in various horse shows between 2011 and 2016 (par 7.23), and Dr Durrell's reference to Ms Hellessey's Facebook page and her attendance at the Sydney Opera House (par 7.41). As I read Professor Mattick's primary report, he did not place any express significance on these matters, and did not state an opinion that they were inconsistent with Ms Hellessey's symptoms of PTSD. He did not base his opinion on these matters.
As I have observed above, MetLife reached all of the conclusions stated in the procedural fairness letters as if it were competent to do so on the basis of its own lay understanding of the significance of that evidence.
It may still perhaps be arguable that the making of such determinations, at least in a prima face away, would fall within the ambit of MetLife's contractual entitlement to decide for itself whether it was satisfied that the TPD definition had been established. In my opinion, however, given the warnings received by MetLife from the medical experts, it was unsound and unreasonable for MetLife to rely upon its own lay judgment, without obtaining expert medical confirmation.
But even if that conclusion is not accepted, the real issue is whether it was reasonable for MetLife to stand upon the correctness of its own conclusions, and on that basis alone to reject Ms Hellessey's witnesses' sworn affidavits, and also to substantially reject all of her expert evidence. In my view it was not.
In my opinion it was not reasonable for MetLife to have done so. While I accept that superficially the evidence of Ms Hellessey's Facebook posts appeared to be strongly inconsistent with the existence of the symptoms of her PTSD and depression that she claimed to have, the evidence was in no respect conclusive. It was capable of explanation that supported the reality of Ms Hellessey's symptoms, and its true significance called for medical opinion. It was an unreasonable error on MetLife's part to proceed upon the basis that its lay interpretation of the Facebook evidence was correct and unassailable, and on that basis reject Ms Hellessey's lay and medical evidence in its entirety.

[91]

Fairymead

As was the case with the Facebook posts, the evidence available to MetLife of Ms Hellessey's involvement with Fairymead reasonably justified it in being suspicious that Ms Hellessey, who claimed to be incapable of working, was in fact engaging in activities that were only consistent with her being capable of undertaking employment. It is sufficient to record the evidence of Ms Hellessey being involved with Fairymead Stud, and her being owner/manager of Fairymead Show Horses. "Fairymead" was registered as a "prefix and brand" with the Welsh Pony & Cob Society of Australia. If in reality Fairymead was an entity of any real substance, and if Ms Hellessey was involved administratively and socially in the way superficially implied from the small amount of evidence available, then that would be inconsistent with Ms Hellessey being unemployable.
The real question is not whether the apparent involvement of Ms Hellessey with an entity that went under the name "Fairymead" was reasonably capable of supporting a conclusion that Ms Hellessey did not suffer from symptoms of PTSD and depression as seriously as she claimed. It obviously was reasonably capable of supporting that conclusion. The question is whether what I will call the Fairymead evidence was so conclusive that it reasonably entitled MetLife to draw a fixed conclusion as to the significance of the evidence, sufficient to justify MetLife in not entertaining the possibility that further evidence would put an innocuous complexion on Ms Hellessey's activities.
MetLife set out the information concerning Ms Hellessey's involvement in Fairymead that it considered to be significant on pages 10 and 11 of the fourth procedural fairness letter (set out in part at par 467 above). MetLife identified a number of sources of information including statements such as that Ms Hellessey was acting as the Owner/Manager of Fairymead. MetLife noted: "that Fairymead Show Horses was listed as a sponsor/supporter of the 2013 Country Kids Foal and Youngstock Show; the 2013 Show Horse Magazine Australia All Breeds Foal and Youngstock Show, the 2015 Goulburn Plaza Show and the NSW Arabian Horse Association Inc."
If it had happened that Fairymead was a significant enterprise, and if Ms Hellessey was an owner of that enterprise and had undertaken its management in a way that involved significant administrative duties and contact with members of the public, then Ms Hellessey's activities may well have suggested that she was immediately employable. However, unless one assumes that Fairymead was a significant business or activity, it might be completely wrong for MetLife to draw such a conclusion. The evidence that MetLife had clearly constituted a ground for suspicion, but it did not in reality prove anything much about Ms Hellessey's actual activities or their significance.
MetLife seems to have proceeded on the basis that the statements that it set out in the fourth procedural fairness letter spoke for themselves. In fact, they only implied that Fairymead Show Horses/Stud was a significant enterprise of some sort such that Ms Hellessey's involvement in 'Fairymead Show Horses' and 'Fairymead Stud' was inconsistent with Ms Hellessey having the symptoms and disabilities that she and her treating medical professionals reported.
MetLife did not actually explain or elaborate this implication in the fourth procedural fairness letter. MetLife proceeded as if the letter was self-explanatory. In accepting the evidence of Ms Hellessey and Ms Cleary concerning Fairymead, I have found that Fairymead was no more than a name used by two women who were passionate about horses, but engaged in a small way, to add some lustre to their ordinary and relatively insubstantial involvement in showing horses and pony clubs (and in Ms Cleary's case, a relatively insubstantial horse breeding activity). I consider Ms Cleary's response in her affidavit to be a genuine response to the observations made by MetLife in the fourth procedural fairness letter concerning Fairymead.
It is true that the only explanation for Ms Hellessey's apparent Fairymead activities was a brief one. The better view on the evidence is that MetLife did not appreciate that the explanation existed when it rejected Ms Hellessey's claim for the third time. If, contrary to the perfunctory justification given by MetLife for rejecting all of Ms Hellessey's sworn lay evidence, MetLife was aware of Ms Cleary's evidence on the subject, it was unreasonable for MetLife to reject the evidence out of hand. The evidence that MetLife had was consistent with Fairymead being a significant enterprise, but did not prove that fact in a manner that was impervious to explanation.

[92]

Palomino Association and the Goulburn Pony Club

In the fourth procedural fairness letter, MetLife also outlined Ms Hellessey's involvement with the Palomino Association and the Goulburn Pony Club (page 6). MetLife did not elaborate in detail on the significance of this information, but appears to have relied upon it in an undifferentiated way together with the other conclusions it had reached about Ms Hellessey's activities, to support the ultimate conclusion that: "The extent of [Ms Hellessey's] activities alone is inconsistent with any claims or assertions that [she was], essentially, socially avoidant" (page 15).
The significance of Ms Hellessey's involvement with the Association and the Club depends upon the nature of those entities' activities, the nature of Ms Hellessey's interactions with members, the tasks she was required to undertake, and the duration of her involvement. I have dealt with the evidence concerning the Palomino Association at par 492 above, and that concerning the Goulburn Pony Club at pars 493 to 498. The conclusions that would objectively be supported by the evidence were that Ms Hellessey's involvement was with horse-loving people who she was well-acquainted with, the tasks that she was required to undertake were limited, and her participation was relatively fleeting.
It may nonetheless be that this sort of evaluation of the evidence is a matter that would fall within the purview of MetLife's entitlement to assess the evidence itself for the purpose of determining whether Ms Hellessey had established the TPD definition. However, the real point is whether it was reasonable for MetLife, relying upon its own conclusions, and unsupported by medical opinion, to dismiss in the manner that it did the lay and medical evidence submitted by Ms Hellessey virtually in its entirety. In my view, when the limited evidence that was available to MetLife is weighed in a reasonable and balanced way, it simply does not establish that Ms Hellessey had engaged in activities that were inconsistent with the symptoms of her PTSD and depression that she claimed to suffer from. While weighing the evidence was a matter within MetLife's province, it was not sufficiently conclusive to justify MetLife in relying upon this issue to reject Ms Hellessey's lay witnesses' sworn evidence entirely, and to effectively reject all of the medical evidence in support of her claim.

[95]

Entitlement of Ms Hellessey to TPD benefits

In the circumstances I have considered above it falls to the court to determine on the evidence that was tendered in the proceedings whether or not Ms Hellessey is entitled to the TPD benefits under the policies. Having regard to the evidence, I have determined that Ms Hellessey was at the assessment date incapacitated by her psychological injury in a manner that satisfied the TPD definition in the policies.
It is not clear when Ms Hellessey first began to suffer from PTSD and Major Depressive Disorder, as she began to suffer from psychological injuries in about 2004 as a result of her experiences while a member of the Police Force. The doctors who examined or treated Ms Hellessey at around the time that she ceased work as a police officer on 30 August 2010 appear uniformly to have diagnosed her with PTSD and probably secondary depression as well. It is clear that Dr Durrell, her treating psychiatrist, was of that view from early in the period when Ms Hellessey was his patient.
All of the medical professionals who were called to give expert evidence at the hearing were of the opinion that Ms Hellessey still suffered from PTSD at that time, including Professor Mattick (par 681 above), except for Mr Rawling, who favoured a diagnosis of Adjustment Disorder with Anxiety and Depression over PTSD (par 699 above). Mr Rawling thought, however, that the specific diagnosis was immaterial.
It is necessary to consider the evidence of Professor Mattick discussed in par 679 above concerning Ms Hellessey's scores in the psychometric tests that Ms Hellessey completed on 13 July 2016. Professor Mattick formed the view that her scores established clear evidence that Ms Hellessey was exaggerating her emotional disturbance. He concluded that the scores did not suggest that Ms Hellessey did not have some emotional problems, but she was exaggerating the extent of them. He concluded (see par 680) that there was no evidence of lack of effort or motivation or deliberately feigning cognitive dysfunction.
Mr Rawling also administered psychometric tests to Ms Hellessey. He also reported some apparent exaggeration by Ms Hellessey of the seriousness of her feelings (pars 697 to 709 above). It appears that the level of exaggeration identified by Mr Rawling was less than that found by Professor Mattick. Mr Rawling reached a different conclusion than Professor Mattick, being that expressed at par 699 above: "There was certainly no evidence of factitious failure on cognitive testing. On personality testing, she showed the tendency, common among people with psychological disorders, to see their symptoms as extreme, but there was again no compelling evidence of exaggerated claims of disability".
It is necessary to evaluate the significance of this relatively isolated evidence, coming into existence in mid-2016, in the context of the whole of the evidence concerning the effects of Ms Hellessey's psychological injury since the assessment date.
I accept that the findings of Professor Mattick and Mr Rawling were real and correctly reported. However, I have also accepted the lay evidence of Ms Hellessey's witnesses concerning her day-to-day behaviour and the limitations on her activities. It must be recalled that Dr Hodgson accepted that Ms Hellessey appeared a genuine and sincere historian and did not believe that secondary gain was playing a role in Ms Hellessey's current presentation, as at 20 September 2012 (par 227 above). Dr Durrell and Mr Ward examined Ms Hellessey on many occasions over a period of years, and were satisfied that she had the symptoms that they identified in their various reports. It is significant that Ms Hellessey performed the psychiatric tests about five years after the assessment date. As early as Dr Durrell's 16 February 2013 report (par 189 above), Dr Durrell had reported that ongoing uncertainty concerning her claim was itself a source of considerable anxiety and that Ms Hellessey had limited coping mechanisms due to her PTSD. I have also noted above the Facebook posts made by Ms Hellessey in which she expressed anger towards MetLife as a result of its procrastination and the invasive surveillance it had undertaken (for example pars 746, 752 to 754, 757, 760 and 763 to 765). Speaking neutrally, it is not surprising that Ms Hellessey developed a strong antipathy towards MetLife. Finally, the results of the psychometric tests were put to Dr Westmore who gave the response that is set out at par 719 above.
In my view, while it must be accepted that in mid-2016, on a number of occasions, Ms Hellessey exaggerated the significance of her emotional disturbance, when tested objectively, that evidence does not justify a rejection of the overwhelming balance of the evidence that Ms Hellessey continued to be substantially afflicted by the consequences of her psychological injury caused by her PTSD and depression. In particular, I prefer the opinions expressed by Dr Westmore and Mr Rawling to the opinion of Professor Mattick, as I regard the former to be more balanced and justified having regard to the whole of the evidence concerning Ms Hellessey's circumstances since the assessment date. When Ms Hellessey undertook the psychometric tests, her responses were probably influenced by anger at having to undertake further tests (her application for the benefits having already been rejected twice) and probably also a tendency reported by Mr Rawling for persons with significant psychological disturbance to overstate the seriousness of their condition in the way they articulate their feelings in a test situation.
As I explained earlier, MetLife relied upon Ms Hellessey's Facebook posts, her activities involving horse shows and clubs, and in particular her involvement with Fairymead, as the foundation of an argument that Ms Hellessey's activities over the period since the assessment date are inconsistent with her having the symptoms that she claims to have.
I analysed the principal evidence concerning Ms Hellessey's Facebook posts at pars 731 to 767 above. I embarked upon that analysis as it appeared to me to be essential for the court to gain an overall understanding of what that conduct by Ms Hellessey signified. It appeared that reliance upon selected aspects of the posts may give an unbalanced view of their significance.
In his 29 September 2013 report, Dr Durrell gave a reasoned response to a request that he comment on Ms Hellessey's Facebook record from 3 April 2012 to 3 November 2012 (see par 194 above). In my view, even though ultimately a significantly greater number of Facebook posts were relied upon by MetLife than were the subject of Dr Durrell's report, they only covered a much longer period and did not demonstrate activities by Ms Hellessey that were different in quality or significance to those that were considered by Dr Durrell. He said: "I can confirm that these contacts on Facebook do not represent real-life friendships and in the main these are persons loosely and indirectly associated with Ms Hellessey through her lifelong interest in horse breeding and horse showing". See also the observation by Dr Hodgson in her 3 May 2013 report (par 231 above): Ms Hellessey may appear happy in her Facebook postings, but I am unable to give a professional independent opinion as I am doubtful whether or not credence can be given to Facebook comments and photos. These may not have been independently verified and they may not be reflective or indicative of her usual status.
I also refer to Mr Rawling's opinion in his 8 August 2016 report, set out at par 698 above, in which Mr Rawling explained that observations gleaned during the course of covert intelligence and from reviewing Facebook postings are not clear-cut in cases of psychological injury, because they tell little of the true psychological state at the time. Professor Mattick did not offer any opinion on the significance of the Facebook posts.
I accept the consistent evidence of the medical professionals who have expressed opinions on the subject that Facebook posts made in the privacy of the home of a person suffering PTSD and depression should not be taken at face value for the purpose of drawing conclusions about the true psychological state of the author of the posts. Social phobia is only one of the symptoms of Ms Hellessey's psychological injury that is supported by the medical evidence. Facebook messages that are posted by a person suffering from social phobia that have been composed on the person's computer at home do not necessarily have the same significance as would identical statements made spontaneously in person to other persons in a real social context. Such messages are not spontaneous. They are composed and in that sense they are artificial. They may represent an appearance that the psychologically injured person wishes to create.
Care should be taken by persons who enjoy good psychological health concerning the significance that they attribute to Facebook posts made by psychologically injured persons. Logically, persons who enjoy relatively normal psychological health are unlikely to understand the true psychological circumstances of the injured person. Assumptions of cause and effect that are consistent with normal psychological health may not apply to persons with psychological injuries. Not only is there a heightened risk that false conclusions will be reached, but the person with normal psychological health has no objective means of judging when and to what degree that person has made an error when the person draws conclusions based upon the Facebook posts that assume that the maker of the posts is acting in the same way as a person of good psychological health.
The court is in the same position as persons who enjoy good psychological health generally, which is why the court should be particularly careful to have regard to experienced medical opinion concerning the significance of the psychologically injured person's communications.
In the present case, Ms Hellessey's treating psychiatrist, Dr Durrell was aware of Ms Hellessey's use of Facebook and considered it to be "therapeutic" (par 670).
Further, it follows from the analysis of the Facebook posts that I have undertaken above that Ms Hellessey did not in numerical terms make a substantial number of posts. The posts were substantially concerned with Ms Hellessey's involvement in horse-related activities. Those activities were in general terms known to and recommended by Ms Hellessey's treating psychiatrist and psychologist (especially pars 194, 202 and 217 above). Dr Durrell reported in his 29 September 2013 report his understanding that Ms Hellessey had been unable to ride, show or lead horses in shows due to her hypersensitivity of being observed by others, and that without the support persons and the anxiolytic medication it was most unlikely that Ms Hellessey would be able to continue with her 'behind the scenes' at the Royal Easter Shows and other shows (par 202).
I find that the evidence of Ms Hellessey, Ms Eves, Ms Cleary and Mr Harvey that I have considered above establishes that Ms Hellessey's involvement with horse shows and other horse-related activities was not inconsistent with her suffering from social phobia (see pars 541, 630, 639 and 655 above). Once it is accepted that even serious cases of PTSD and depression may not prevent the sufferer getting out of bed every day or cause the sufferer to lead a hermit-like existence, the evidence of Ms Hellessey's limited and restricted personal involvement in horse shows is not inconsistent with the symptoms of her psychological injury that she and her treating medical professionals have identified. In fact, if the evidence is considered in a balanced way, it is consistent with a very limited social existence, and inconsistent with the capacity for Ms Hellessey to successfully engage in the jobs identified in the vocational assessment report.
I also find that the evidence concerning Ms Hellessey's limited involvement with the Palomino Association and the Goulburn Pony Club does not prove that Ms Hellessey has not suffered from the social phobia that her psychiatrist and psychologist identified. These activities by Ms Hellessey involved occasional meetings over a relatively short period of time with small numbers of people with whom Ms Hellessey was familiar, and also involved limited and rudimentary activities and communications by Ms Hellessey with outsiders. The significance of these activities must be weighed giving due proportion to the evidence given by Ms Hellessey's lay witnesses, which I have accepted, concerning all of the symptoms of her psychological injury. Those symptoms are not limited to social phobia, but include many additional symptoms, such as detachment, emotional numbing, hyperarousal including insomnia, irritability, poor concentration and hypervigilance (par 183 above).
I also find that Ms Hellessey's involvement with Fairymead does not have the significance that MetLife attributed to it. It did not concern a business of any significance. It was a name used by Ms Cleary and Ms Hellessey for a number of relatively limited purposes. To the extent that the name was used in connection with any activity that could reasonably be considered to be a business, the business was conducted by Ms Cleary. It was Ms Cleary who owned a stallion that was on occasions the subject of advertisements using the name "Fairymead" in relation to offers that the stallion would service mares. There is no evidence that Ms Hellessey ever earned any money through her involvement with Fairymead. Ms Hellessey always acknowledged her involvement in horse-related activities. As I have noted above, in the documents that she submitted with her application for the TPD benefits she acknowledged a special interest in "horse breeding - showing", and in relation to belonging to any clubs or organisations she said: "horse associations & clubs". Although this information was brief, it was fitting in relation to the amount of space allowed for the responses on the form. The evidence shows that Ms Hellessey and Ms Cleary used the name "Fairymead" in relation to their show horses, and in relation to such minor matters as giving small donations to clubs to fund prizes for Ms Hellessey's children and other club members. It is likely that Ms Hellessey and Ms Cleary made the activities of Fairymead appear more substantial than they were. I am satisfied that their activities involving Fairymead were in relative terms transient and insignificant.
I also find that the evidence concerning Ms Hellessey's involvement in activities such as occasional shopping is not inconsistent with her suffering from the symptoms that she and her treating medical professionals have reported. I accept Ms Hellessey's evidence concerning the difficulties that confronted her in going into shops and dealing with shop assistants (par 545 above).
Consequently, I find that the evidence establishes that Ms Hellessey has suffered from serious PTSD and depression, or near equivalent, for at least about six years and possibly significantly longer.
This is an important consideration in determining whether or not, as at the assessment date of 1 March 2012, the incapacity caused by Ms Hellessey's psychological injury was of such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she was reasonably qualified by reason of education, training or experience.
MetLife correctly pleaded in its defence that, as at the assessment date, Ms Hellessey had a further 31 years of her nominal working life remaining.
All of the expert medical opinion up to the date of the hearing, with the possible exception of the opinion of Professor Mattick, was to the effect that Ms Hellessey had been incapacitated from undertaking any employment at all.
At the least, about six years of the 31 years has expired without Ms Hellessey recovering the capacity to undertake any employment.
Three of the medical experts who were called to give evidence were of the opinion that the nature of Ms Hellessey's incapacity was chronic, and that she was sufficiently unlikely ever to be able to engage in employment for which she was qualified that she satisfied the TPD definition as at the assessment date: see in particular Dr Durrell's evidence at pars 177, 179, 180, 186, 203, 517 and 663 above; Dr Westmore's evidence at pars 380, 715 and 721 above; and Mr Rawling's evidence at pars 703 and 709 above. Dr Westmore said (par 715): PTSD is an illness which is often chronic i.e. the condition can become a lifelong condition from which patients never fully achieve complete remission. That appears to be the case with Ms Hellessey and it is not an uncommon outcome for police officers who are injured in the workplace.
Professor Mattick disagreed with this view and gave the opinion that it is only in cases where PTSD and depression lead to true psychoses that the sufferer will be prevented by his or her psychological injury from undertaking employment over the longer term. That view is at odds with the opinions of all of the other medical professionals that may be found in the evidence in this case (and in other cases where I have received similar evidence). Based on the expert evidence in this case, I consider the prevailing scientific view to be that in a substantial minority of cases of PTSD the injury does not resolve but becomes chronic and is effectively a lifelong affliction. In such cases, the psychological symptoms may effectively incapacitate the sufferer from the ability to gain and undertake employment, even where the symptoms fall well short of psychoses.
Professor Mattick's contrary opinion may well remain scientifically contestable, but if it were to be established it would require that the position be identified as an issue in the proceedings and be resolved on the basis of contested expert opinion. For the reasons that appear from pars 684 to 694 above, the fact that Professor Mattick held these views emerged only during his cross-examination, as a result of a number of questions asked by the court that were triggered by a number of responses that Professor Mattick had given during his oral evidence. In fairness to Professor Mattick, this whole issue emerged only indirectly, and he was not given an opportunity to formally justify his opinion.
Nonetheless, on the evidence in the present case, I feel I must treat Professor Mattick's evidence on the basis that it was influenced by his own view that as Ms Hellessey did not suffer from any psychoses, there was no real impediment to her obtaining relevant employment in the longer term, and particularly after she was freed from experiencing the triggers for her psychological symptoms due to her continuing involvement in these proceedings.
Professor Mattick expressed the view that once Ms Hellessey has ceased being reminded of the events that caused her PTSD by her continuing involvement in the proceedings she will improve, and she will be much less affected by her symptoms than she currently reports, which in any event she is overstating (par 683 above). He suggested that Ms Hellessey's social phobia could be improved by psychological treatments such as cognitive behavioural therapy (par 681). He conceded that no research had been done to prove that where people with PTSD had not successfully responded to the treatments administered for five or 10 years, then a repeat of the treatment was likely to be successful (par 688).
Professor Mattick was the only expert witness to make this suggestion. Mr Rawling did not take the same view. Nor did the two psychiatrists who were called to give expert evidence. I would not, in the circumstances, find that Professor Mattick's view should prevail, given that he had only examined Ms Hellessey once, albeit that the examination was lengthy and thorough. While I respect Professor Mattick's view, I do not think that the evidence justifies a conclusion that, although the medication and treatments that Ms Hellessey has received since the assessment date and before that time have failed to cure her symptoms and her consequent incapacity, there were grounds for confidence that some new psychological treatments would be effective.
There is some logic in Professor Mattick's view that Ms Hellessey will feel better after the proceedings have been completed. She will become free of the need to attend medical examinations and to suffer the anxiety of waiting to learn the outcome of her claim. But there is also logic in the view that, as she has strenuously pursued the claim for some six years, her psychological condition will deteriorate if the claim is rejected. The point is that the evidence does not allow a rational finding concerning the likely consequences of the conclusion of the proceedings. For this reason, I view the suggestion made by Professor Mattick as speculation.
Having read the reports of the medical experts who supported the conclusion that Ms Hellessey's incapacity satisfied the TPD definition, having heard their cross examination, and having taken into account the observations that I have made in the course of this judgment when analysing the experts' reports, I have decided that I should accept the opinions expressed by those experts in preference to the opinion expressed by Professor Mattick.
In cases where the evidence establishes that a particular claimant has been completely incapacitated from any employment for a period as long as six years, a number of issues must be addressed before a conclusion could rationally be reached that over the remainder of the working life of the claimant "there is a real chance that [the claimant] may return to relevant work", to use the words of Leeming JA in TAL v Shuetrim at [88]. The considerations that are relevant will depend upon the nature of the illness or injury, the nature of the incapacity, and the changes that must occur before the capacity for the relevant employment may be regained. As a general matter, it is necessary to address the question: what needs to change, and how likely is the change to occur within a period that will give rise to a real, practical likelihood of employment?
Some illnesses or injuries may resolve spontaneously over time, in the sense of being a response to the innate recuperative capacity of the mind and the body. Some may recover as a result of medication. Others may recover as a consequence of successful medical treatment. In cases where the evidence establishes that, up to the date of the hearing, the claimant remains incapacitated from any employment, a consideration of the likelihood that the claimant will make a sufficient recovery requires that one or more of these causes of recovery be addressed.
The only suggestion made in MetLife's case in respect of this issue was contained in Professor Mattick's evidence that, when the proceedings are concluded, and Ms Hellessey is spared the continuing, occasional reminders of the events that caused her psychological injury in the first place, or "triggers" as they are called, Ms Hellessey's psychological state is likely to improve. As I have observed, that was not a view shared by any of the other medical experts, who regarded her condition as being chronic.
I have set out above a brief summary of the available evidence concerning Ms Hellessey's medication regime over the period since she has been treated for serious PTSD and depression (pars 768 to 771). It is broadly true that Ms Hellessey has been prescribed a significant level of medication for the whole period, and there has been no suggestion that there is any scientific basis for concluding that Ms Hellessey will ever be free from the need for significant medication. Dr Durrell's most detailed description of Ms Hellessey's medication regime was set out in his 20 October 2013 report (par 517 above).
As Ms Hellessey's treating psychiatrist, Dr Durrell had the benefit of examining her or speaking to her over the telephone on a great many occasions over the whole of the period between the assessment date and the hearing. That experience would naturally assist him in avoiding the errors that could occur from a single examination of a person claiming psychological illness. The evidence establishes, unsurprisingly, that one thing that occurs during the course of treatment of psychological injury by a psychiatrist, is that different medications are trialled in order for the doctor to be able to prescribe the medication that will produce the best result for the patient. That process will enable the doctor to form a scientific view about the likelihood that the medication chosen will lead to a recovery by the patient. In this case Dr Durrell's experience caused him to express the view on 20 October 2013 (par 517): Unfortunately the number of trials of psychotropic medications is a poor prognostic sign and further indicates that in terms of clinical outcome that Ms Hellessey will have only modest symptomatic improvements and no curative outcome is possible in her case.
The present case is one in which Ms Hellessey has had the benefit of trials of different medication regimes for a period of some six years, but with the unfortunate result described by Dr Durrell. There was no evidence challenging that view as a matter of medical science. Indeed, MetLife only called expert evidence from the psychologist, Professor Mattick.
There is no adequate basis in the evidence for concluding that Ms Hellessey will spontaneously recover from her psychological injury, and there is no reason to conclude that any form of medication will have that result.
If, as the evidence establishes, Ms Hellessey will be prescribed medication generally of the nature of her present prescriptions into the indefinite future, then the question whether Ms Hellessey is unlikely ever to gain employment in a relevant occupation must be considered by taking into account the likely consequences of Ms Hellessey being continually medicated. In this regard it is important to remember that the unchallenged evidence is that Ms Hellessey is required to take anxiolytics, principally Valium, on an as needs basis, to ward off impending anxiety and panic attacks (see the evidence of Dr Durrell discussed at par 197 above). As I have mentioned, Ms Hellessey's evidence was that she had taken her medication, including Valium, on the day of her cross-examination.
The vocational assessment report upon which MetLife relied to reject Ms Hellessey's claim is considered above at pars 223 to 225. The job options identified for Ms Hellessey were learning and development officer/training and development professional, childcare worker, driving instructor, cashier, and sales representative.
While that report has been received into evidence, I would place little weight on it, in the absence of Mr Everett having been called for the purpose of supporting his report and being available for cross examination. Dr Durrell in his 16 February 2013 report (par 189 above) and Dr Westmore in his 9 December 2015 report (par 380 above) directly challenged the validity of the conclusions reached by Mr Everett. On the face of the report, Mr Everett ruled out jobs that had aspects in common with being a member of the police force, or required the use of firearms. However, Mr Everett gave no indication that he took into account the real consequences of the actual symptoms from which the evidence shows Ms Hellessey suffers.
Furthermore, MetLife did not conduct the cross examination of Ms Hellessey as if its case was that she was, or would in the future be, capable of undertaking one of the five forms of employment identified by Mr Everett. MetLife's counsel cross-examined Ms Hellessey in the manner I have described above (see in particular par 551) as to whether she was capable of engaging in various types of horse-related activity. That was not a case advanced by MetLife before the commencement of the hearing, and Ms Hellessey was not given any adequate notice of it. I am satisfied by Ms Hellessey's responses in cross-examination that MetLife has not established that Ms Hellessey is, or will in the future be, capable of obtaining the horse-related employment suggested by MetLife notwithstanding the continuing effects of her symptoms caused by PTSD and depression.
I have also set out above at par 606 my observation of Ms Hellessey in the witness box. I was satisfied that Ms Hellessey appeared to be affected by her medication, although the effect was subtle. As I put it, she appeared to be subdued and at least mildly depressed. Her attention was shallow and her responses were somewhat mechanical. I have no means of knowing whether Ms Hellessey has this affect at times when, in addition to her other medication, she feels the need to take Valium to counteract anxiety and panic attacks. However, in my view it is reasonable on the evidence to conclude that at least intermittently when Ms Hellessey is presented with triggers for her anxiety and panic, her medication will have an effect on her appearance and behaviour that is material to her prospects of gaining and retaining employment.
It will be reasonable to consider Ms Hellessey's employment prospects taking into account that she will owe an obligation to prospective employers to advise them that she continues to suffer from PTSD and depression for which she takes medication, including Valium to ward off anxiety and panic. It is most unlikely that knowledge of those matters will commend itself to potential employers of Ms Hellessey as a childcare worker or driving instructor, and the position may well be little different with the other job options identified.
Even putting aside the potential consequences of Ms Hellessey's continuing medication regime, the likelihood of her ever gaining relevant employment must be considered having regard to the evidence of the symptoms from which she suffers. Ms Hellessey's evidence of those symptoms is set out at par 544 above. Mr Hellessey's evidence in par 13 of his affidavit may be found at par 611. The equivalent evidence of Ms Eves, Ms Hellessey's mother, is set out at par 628. Although that evidence will be influenced by the individual perceptions and perspectives of the witnesses, I broadly accept it.
The evidence was consistent with the description of the symptoms of PTSD and depression given by Dr Durrell (pars 183, 186, 187 and 189 above), Dr Hodgson's evidence (par 229), and Dr Westmore's evidence (par 380). It is also consistent with my description of the symptoms in Wheeler (above) at [48]. Although all of the descriptions differ in various respects, they are substantially consistent. I will set out only the descriptions given by Dr Durrell (par 183) and Dr Westmore (par 380) respectively as follows: Ms Bernadette Hellessey expends considerable effort to avoid activities, places and people associated with her NSWPF related mental traumas. Ms Hellessey regularly experiences feelings of detachment, emotional numbing and restriction of her range of affects. Ms Hellessey exhibits persistent symptoms of hyperarousal including insomnia, irritability, poor concentration and hypervigilance. The duration of her symptoms is more than one month and her mental injury causes clinically significant impairment in social and occupational functioning And … She is socially isolated and withdrawn, depressed in mood, irritable and intolerant. Her capacity to deal with clients, co-workers and supervisors would all be significantly impaired because of her psychiatric illnesses and the associated symptoms.
I am satisfied that, so long as Ms Hellessey suffers from the symptoms of her psychological injury, there is no real likelihood that she will ever be able to engage in relevant employment. It is simply not realistic to expect that a psychologically incapacitated person who cannot be relied upon to get out of bed in the morning, or to properly dress herself, or to communicate naturally with supervisors, co-workers, and the public, will ever be employable in any real way.

Hellessey v MetLife Insurance Limited

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Cases Cited (35)