Jo Gedeon v First State Super Trustee Corporation

Industrial Relations Commission (NSW)|1983-04-14|Before: Marks J

Background to the Proceedings 1 In these proceedings the appellant, Jo Gedeon, appeals pursuant to s 40 of the Superannuation Administration Act 1996 ("the Act") from a decision of First State Super to reject a claim for a total and permanent disability benefit. The appeal documents were filed on 23 August 2000. The appeal was initiated as a result of a letter from First State Super to Mr Gedeon dated 13 June 2000 advising him that his claim had been rejected. However that letter did not represent the final stage in the process of determination of Mr Gedeon's claim by First State Super. There is a mechanism within the Trust Deed and Rules for any dispute arising from the refusal by the Trustee to pay a benefit to be reviewed by a Claims Review Committee. I shall refer in more detail to the provisions of the Trust Deed and Rules shortly, but for present purposes I observe that the Claims Review Committee determined to reject the appellant's claim on 31 October 2000, and Mr Gedeon was advised by letter addressed to solicitors then acting for him, dated 1 November 2000, that his claim was declined. His attention was drawn to the provisions of s 40 of the Act in that letter. Accordingly, strictly, the superannuation appeal filed by the appellant who initially was self-represented was premature. However the parties have agreed that the appeal should proceed on the basis that it was properly constituted and that the appeal document filed would, in effect, operate so as to apply to the subsequent decision of the Claims Review Committee dated 1 November 2000.

The Matter for Determination 23 I have previously described in very general terms the fact that the trustee, the FSS Trustee Corporation, had effected insurance with the Colonial Mutual Life Insurance Society Limited ("Colonial"). The provisions of the Trust Deed and rules applying to the superannuation trust allow the trustee to effect a policy of insurance in order to provide an "insured benefit" to members on the occurrence of death, Permanent Incapacity or Temporary Incapacity. "Permanent Incapacity" is defined in the Trust Deed with respect to the entitlement of a member to an Insured Benefit as having "the same meaning given to it (or any corresponding term) in any policy providing benefits on disablement under which the trustee has insured the Member…". It was common ground between the parties that the claim brought by the appellant in these proceedings was for an insured benefit payable under a TPD Policy issued by Colonial. Furthermore, it was common ground that, in order to succeed, the appellant had to be entitled to a Total Permanent Disablement benefit under that policy. That term is defined in the policy, relevantly, to mean "disablement resulting from illness, accident or injury and as a result of which the Insured Member …is unable to follow his or her own Occupation and any other occupation to which he or she is reasonably suited by education, training or experience for six consecutive months after the date of disablement and we consider, on the basis of medical evidence satisfactory to us, that the Insured Member is unlikely ever to be employed or attend to any such occupation". 24 "Occupation" is defined in the policy document to mean "the employment in which the Insured Member is principally employed". That definition is framed in the present tense. I take it therefore that it is intended that that definition apply to the principal employment in which the insured member was employed for the purpose of the entitlement to benefits under the superannuation Trust Deed. In the case of the appellant, this is clearly employment as a school teacher. 25 For completeness, I note that there is a definition of "date of disablement" which is relevant for the purpose of the six consecutive months' period which must have elapsed in order that an insured member falls within the definition of Total Permanent Disablement. This is defined to mean the later of the date the illness, accident or injury which was "the principal cause" of the disablement commenced or occurred or the date that the insured member ceased to be actively at work. I do not apprehend that the provisions of this definition will impact in any way upon the task before the Court in these proceedings. Nevertheless, I observe that the reference to the "principal" cause of the disablement does not necessarily exclude subsidiary or other causes from being taken into consideration. 26 It is now necessary to make some observations concerning the definition of Total Permanent Disablement contained within the policy. Total Permanent Disability 27 The disablement may result from illness, accident or injury. Presumably "injury" is intended to refer to bodily injury which may be either external or internal (an example of an internal injury is the tearing of a muscle or tissue, a ruptured gullet or a collapsed vertebrae). The matter is discussed generally by Mason J (as his Honour then was) in the High Court of Australia in Favelle Mort Ltd v Murray (1976) 133 CLR 580). "Illness" is defined in the Macquarie Dictionary as being "a state of bad health; sickness". In general terms, it would include a feeling of being unwell. Illness may be contrasted with "disease" which, in its normal sense, denotes a morbid condition of the body. It may be initiated by some external cause or be idiopathic or autogenous. Quite clearly when such a condition is idiopathic or autogenous, it will not qualify as an injury in the normal use of language (per Barwick CJ in Favelle Mort Ltd v Murray). The Macquarie Dictionary defines disease by reference also to the words "illness; sickness; ailment". Perhaps nothing turns on this, but it seems to me that "illness" has a wider connotation than a "disease"; the former includes a feeling of not being well, the latter refers more to symptoms associated with a recognition that there is a condition understood and able to be characterised with some specificity. I observe that "injury" and "illness" are most normally utilised together so as to embrace a range of conditions with respect to which some form of entitlement (or perhaps disentitlement) may arise. The use of these words is to be contrasted, however, with the presence of "accident". That word is defined in the Macquarie Dictionary in terms of "an undesirable or unfortunate happening; casualty; mishap …anything that happens unexpectedly, without design, or by chance". This accords with the manner in which this word has been construed in decided cases, particularly by reference to something which occurs fortuitously and in circumstances which were unlooked for (see the discussion of "accident" at paragraph [2410] in Guidebook to Insurance Law in Australia, third edition - Marks and Balla, CCH Australia). Perhaps nothing may eventually turn upon this discussion of these three triggers, any of which may cause disablement for the purpose of the definition. However, as will be seen, the basis for disablement asserted by the appellant arguably covers matters including the sequelae of addiction to morphine with respect to which "illness" may have some relevance. 28 The disablement, for the purpose of the definition, is stated in specific terms by reference to the inability to follow the two types of occupation so described. I would paraphrase the expression "unable to follow" in terms of occupation by reference to an inability to perform work in that occupation or, more simply, to work in that occupation. 29 The use of the possessive description "his or her own" in terms of occupation focuses attention on the actual occupation of the Insured Member. On the basis of the evidence given in the proceedings it is clear that the appellant's own occupation is that of a schoolteacher. 30 There is also a requirement that the appellant be unable to work in "any other occupation" as described. There are a number of authorities which discuss the expression "any other occupation to which he or she is reasonably suited by education, training or experience". Applying the ordinary English usage to these words, and without recourse for the moment to any case decisions, I observe firstly that there is the use of the present tense by reference to "education, training or experience". That is, the language used is, in my opinion, more aptly directed to the present state of the education, training and experience of the Insured Member rather than any education, training or experience which the insured member might undertake in the future. Obviously, each case must be determined on its own circumstances. If, for example, a professionally qualified person was required to undertake an update of qualifications periodically as a condition of pursuing his or her profession then that further educational training may be something which is contemplated within the ordinary meaning to be given to these words, particularly by reference to the use of the present tense. However, in the absence of any such particular situation, I would read the words used as confining the examination to the education, training or experience of the insured member as at the date that the determination needs to be made that he or she is "reasonably suited" for that other occupation. 31 In the course of these proceedings the respondents submitted that there were a number of occupations which the appellant was able to pursue and in which he could work having regard to his education, training and experience and his physical ability to perform work. The appellant is obviously bilingual, being competent in the French as well as English language. It was said, therefore, that he would be able to perform work as a translator or interpreter. It was said also that his education, training and experience as an educator and as an educational administrator would enable him to do clerical work. 32 The meaning of these words was considered briefly by Hodgson J (as his Honour then was) in the Supreme Court of New South Wales in Chammas v Harwood Nominees Pty Ltd (No 1) (unreported, 14 April 1983, 2081 of 1980). His Honour said, in part: "and I think those words sufficiently indicate that the relevant employment is full time employment, and that the question is not merely incapacity to engage in some theoretical employment, but actual likelihood of obtaining employment. And the reference to reasonable qualification, I think, appropriately encompasses the requirement that the employment should be something that the member is capable of undertaking". This reference was cited with approval by McClelland J in Eq in the Supreme Court of New South Wales in Munios v Johnson and Johnson Retirement Benefits Limited (unreported, 5 December 1996, No 3597 of 94). His Honour commented: "In other words it is in the context of the real world, not that of some theoretical abstraction, that the criterion provided by the definition of total and permanent disablement needs to be applied". In circumstances where an insured member asserts on the basis of supporting medical and other evidence that he or she is unable to follow any of the occupations described in the definition, then it falls to the party seeking to rebut the claim to adduce evidence designed to demonstrate that there is another occupation to which the claimant is reasonably suited by education, training or experience. In my opinion, it is not sufficient to make a bald assertion, or even to adduce "expert evidence" to the effect that a claimant is able to work as an interpreter, translator or clerk. In the "real world" to which McClelland CJ referred, it is necessary to demonstrate that there are specific occupations available to a claimant which are within his or her education, training or experience. For example, the mere fact that a person is accomplished in two languages may not be sufficient to render that person suitable for employment as a translator or interpreter. There needs to be some evidence about the circumstances of the employment, including the nature and conditions under which work is to be performed and whether there are any specific qualifications or requirements associated with the particular occupation. Mere ability to undertake some or all tasks in an intellectual sense may not determine that there is an ability, both by reference to education, training or experience or by reference to any medical or other condition to perform the work associated with that particular occupation. The work circumstances associated with a "clerical occupation" are so extensive as to not permit any worthwhile discussion in the same vein. 33 In Chammas, Hodgson J, in discussing other employment which a claimant is capable of undertaking, added "at least employment which he could be capable of undertaking with further training which it would be reasonable for him to undertake". In my respectful opinion, such a qualification is outside the plain meaning of the words used and introduces a further and unnecessary complicating factor. This would involve an examination of what further training was available by reference to any particular occupation, and whether or not it would be reasonable for the claimant to undertake that training. 34 Szuster v Hest Aust. Ltd and Anor No. DCCIV-98-1071 [2000] SADC 2 is a judgment of Judge Herriman of the District Court of South Australia. In that judgment, his Honour reviews a number of decisions covering words similar to or, relevantly identical to, the words used in this definition, particularly by reference to the "any other occupation" to which the insured member is reasonably suited by education, training or experience. At the conclusion of his Honour's review of those cases, his Honour referred to a submission made by the insurer that the application of the definition entitled the insurer to confine its consideration to capacity to undertake any work or occupation without reference to the availability or accessibility of such work or occupation. His Honour rejected that submission, saying at [74 - 75]: "On a plain reading of the definition, it speaks of an incapacity level which has made the claimant 'unlikely ever to engage in or work for reward'. That latter expression is not qualified by any words restricting the 'unlikelihood' to circumstances of medical incapacity. True it is that the insurer must first consider the question of medical capacity, but the likelihood of the plaintiff working in future is not to be read as consequential only upon that factor. Had it been intended to be so read, the clause could have been expressed in terms similar to that mentioned in Wiley's Case, ie 'unlikely ever to be able to work' (the emphasis is mine) or the words 'engage in or work' could have been replaced by words such as 'be capable of engaging in or working' . Further, I am satisfied that the weight of authority supports that view…If I am wrong in this conclusion, I consider that, at the very least, there is ambiguity in the qualifying words of that definition in that they are capable of being construed in the way I have found. In consequence, the contra proferentem rule applies to support the interpretation least favourable to the second defendant (the insurer); that is, the interpretation which I have placed upon that wording". 35 I respectfully agree with the approach contended for by Herriman J. Such an approach is obviously based on the "real world" approach which has been referred to in a number of authorities as being an approach which would govern the construction of the particular definition. Although "occupation" is not intended to apply to an actual job or position, it refers to a particular calling and must, as I have previously observed, include within any consideration of the application of this definition, all of the circumstances which attach to that particular occupation. As I have previously observed, it is not sufficient therefore, to point to the fact that the appellant is bilingual and is therefore reasonably suited by education, training or experience to perform work as an interpreter or translator. There needs to be a consideration about his suitability for the work of a translator or interpreter, not only by reference to his education but by reference to any training or experience which is necessary in order to be said to be suited for that occupation. The same comments apply to other "occupations" which were put forward by the respondent as being suitable during the course of the proceedings. These included inquiry clerk, library technician, project or programme administrator, education officer, librarian, youth worker and travel agent. It would be improper, in my opinion, to ignore what is well-known in the community, namely that librarians need to possess particular skills and to be trained with respect to matters such as the cataloguing of an array of different media. Librarians possess certain facilities in connection with the searching and retrieval of particular information. There would need to be evidence that the appellant in these proceedings has been educated, or had training or experience in this area. The same comments may be made with respect to a travel agent who requires skill in formulating different levels of fares and fare structures with respect to particular areas of transport, knowledge as to a large number of matters which can affect all forms of transport which might reasonably be undertaken by a client, detailed knowledge as to travel restrictions, visa requirements and the like. I am sure that there are many other matters about which a travel agent requires certain skills. Again, there would need to be evidence as to any suitability of the appellant to undertake the work of a travel agent by reason of education, training or experience. Experience as a traveller is not, in my opinion, sufficient per se to enable a person to work as a travel agent without any training.

36 If such matters are to be asserted on behalf of an insurer, they are matters which require a consideration by the insurer and the accumulation of information and evidence to sustain such an allegation. It is not for an insured claimant to demonstrate that he or she is not reasonably suited to follow any other occupation as described in the definition. 37 The appellant submitted that in determining whether any other occupation was one to which an insured person was reasonably suited by education, training or experience, it was permissible to have regard to the status and remuneration associated with the other occupation in determining whether it was reasonably suitable. In making this submission, the appellant relied upon a decision of the Court of Appeal for Ontario in Constitution Insurance Co. of Canada v Coombe 1997 CanLII 1845 (ON C.A). In that judgment the Court said: "A person is considered not to be totally disabled from engaging in 'any' occupation if his condition would enable him to enter into an occupation reasonably comparable to his old occupation in status and rewards and reasonably suitable in work activity in light of his education, training and experience". That statement of principle was said to flow from a number of decided cases, only one of which was mentioned, namely Labelle v Great West Life Insurance Company (1986) 17 CCLI 173 (BCSC). The decision relied upon by the appellant contained no reasoning to determine why questions of status and level of remuneration were matters which must necessarily be taken into account in determining whether the "any other occupation" test was met. 38 I agree with submissions made by the respondent that there is no Australian authority which imports questions of remuneration and status into the construction of this definition. For my part, I see no reason why the construction of the definition should be determined by reference to questions of remuneration and status in circumstances where there is no reference in the policy definition, either express or implied, to these indicia (obviously, levels of remuneration and status may incidentally and indirectly form a part of the process of ascertaining whether an insured person is reasonably suited to the other occupation by reason of his or her education, training or experience). For these reasons I reject the appellant's submissions and I decline to take into account matters of status and remuneration in considering the application of the "any other occupation" portion of the definition. 39 The parties proceeded on the basis that the relevant six month consecutive period had expired, although, of course, the respondent did not at any stage concede that the definition otherwise applied to the appellant. However, it is necessary to consider a further requirement contained within the definition, namely that the appellant is " unlikely ever to be employed or attend to" either his own occupation or the "any other occupation" described. The use of the word "unlikely" and the meaning which is thereby assigned to this part of the definition has also been the subject of authority. The relevant decided cases are helpfully summarised in the unreported judgment of White J in the Supreme Court of Queensland in White v The Board of Trustees, State Public Sector Superannuation Scheme (21 February 1997, No 3191 of 1996). Some of the authorities canvassed by White J not unnaturally involve a consideration of the word "unlikely" in a context other than of an insurance policy containing the same or similar words used in the definition under consideration. The cases consider matters going to the balance of probabilities, the difference between saying something is unlikely or uncertain (only the former involving a balance between whether an event will or will not occur), and as to whether the balance needs to be one which is definitive as opposed to considerations of whether the possibility of the event occurring is only remote or fanciful. Finally, in the context of whether something is likely, there is reference to whether an event may thereby occur as a matter of possibility and may be held to be unlikely to occur. 40 After referring to the relevant authorities and after discussing the distinctions to which I have referred, his Honour concluded that "the addition of 'ever' to the condition allows the Board to look well into the future but does not, in my view, affect the degree of unlikelihood to which regard must be had. There is a body of opinion to which I have referred which would say that 'unlikely' means 'improbable' in the sense of a less than 50 per cent chance. In ordinary usage this may be much the same as saying that there is no real as opposed to remote chance of the designated event occurring or, to take up one of the dictionary meanings, the prospect of the event occurring is unpromising". 41 It seems to me that this summation appropriately expresses the meaning which is to be given to "unlikely" where used in the definition. 42 The final matter which needs to be taken into account in terms of the definition is the requirement that the insurer consider, on the basis of medical evidence satisfactory to it, that either of the occupations referred to in the definition is unlikely to be followed. 43 In this context is it necessary to consider the nature of the duties and obligations incumbent upon the FTC and, therefore, incumbent upon this Court on appeal, in making a determination. I have previously referred to some of the relevant provisions of the Trust Deed and the rules made thereunder which govern and affect the making of a determination in connection with an application for the payment of a benefit by a member of the superannuation fund (see generally the discussion at paragraphs [5] to [9] above). As I have previously observed in paragraph [9], ultimately the decision of the Claims Review Committee is binding on the insurer and, becomes in effect the decision of the FTC and the determination under s 22 from which the appeal is instituted. Because the Committee is established under the rules established by the Trust Deed and because the decision of the Committee is binding on the insurer, I take the view that the duties and obligations of the Committee and therefore the duties and obligations of this Court on appeal from the determination of the FTC fall within the rubric of "fiduciary duties" applying to the trustee of a superannuation fund rather than being associated in any way with the obligations and duties of the insurer as an insurer in determining whether a claim is properly payable under an insurance policy. The "fiduciary duties" which attach to the work of a trustee are couched in different language to the duties and obligations applying to an insurer. The latter duties are expressed by reference to the "duty of utmost good faith" as codified by s 13 of the Insurance Contracts Act 1984. It may be that the application of the duties and obligations of the fiduciary duty attaching to the work of a trustee will yield the same result as the application of the duty of utmost good faith which applies to the insurer, having regard to the relevant factual matters attaching to any particular claim. However, it is not necessary to discuss the differential application of either duty because of the conclusion to which I have come, that the combined effect of the provisions of the Trust Deed and rules, seen in the context of s 22 of the Superannuation Administration Act determine that the matter is to be addressed by reference to the fiduciary duty and obligation of a trustee. It is not necessary also that I discuss in any detail either concept because there is a comprehensive discussion of both concepts in the judgment of Santow JA in the New South Wales Court of Appeal in Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214 (Spigelman CJ and Tobias JA agreed with his Honour's reasons for judgment). 44 Relevantly, the trustee is required to exercise its discretion in good faith, upon real and genuine consideration of the matter, and in accordance with the purpose for which it was conferred. Obviously, if follows, that the reasoning process adopted by the trustee must be soundly based (see Santow JA at para [33]). I refer also to the obligations imposed on the FTC by s 9 of the Act, as summarised in paragraph [15] above. The matter before the Court is to be determined in the same manner. 45 I now consider the relevant factual background.

Factual Background 46 The narration which follows is taken from the oral and documentary evidence given in the proceedings. 47 The appellant was born on 21 May 1962 and was educated initially in France. He completed undergraduate degrees in France in 1983 and 1984. He then proceeded to acquire a number of university qualifications, principally in education, within certain universities in Australia. These included a Master of Education from the University of South Queensland in 1995, a Master of Arts from the University of Sydney in 1996, a Master of Educational Administration from the University of New England in 1998 and Master of Arts in TESOL from the University of Technology, Sydney, in 1998. In 1997 he enrolled in a Doctor of Education programme in the Faculty of Education at University of Western Sydney. The appellant had taught in Papua New Guinea, in the Philippines and in Sydney. In about 1997 the appellant commenced employment with the New South Wales Department of Education teaching French at a Sydney high school and, subsequently, teaching French and English as a second language at another high school. 48 On 31 December 1998 a motor vehicle which the appellant was driving near Centennial Park was struck by another vehicle. Later that night the appellant felt a pain in his neck and the next day he sought medical treatment but was unable to do so because it was a public holiday. His neck remained painful and he consulted his general practitioner, Dr A Silver, on 4 January 1999. The appellant was given medication and undertook physiotherapy but his neck pain persisted. He complained of difficulty driving to and from Moorebank High School, where he commenced teaching on 1 February 1999. He complained that pain was radiating down both shoulders and that the restricted movement of his neck and associated pain affected his concentration. He was referred to a number of specialists, some of whom recommended surgical intervention and others advised against any surgical procedure. The appellant took periods of sick leave from Moorebank High School during the early part of 1999. 49 Eventually the appellant was referred to Dr J M Matheson, a neurosurgeon, and was first seen by Dr Matheson in August 1999. Dr Matheson diagnosed a disc lesion at the C5/6 level and recommended surgery. The appellant did not undertake surgery at first and consulted other doctors from whom he received conflicting advice. Nevertheless, the appellant said that because his symptoms were persisting and because of the level of pain he returned to Dr Matheson who performed an anterior-cervical fusion at the relevant level on 29 March 2000. Previously, towards the end of 1999 the appellant had applied to the Department of Education to be retired on health grounds. On 13 December 1999, Health Quest, under the hand of the New South Wales Government Medical Officer, certified the appellant's retirement on medical grounds by reason of a C5/6 disc herniation with chronic pain. The appellant's last day of active duty had been 28 May 1999. The appellant's retirement from the New South Wales Department of Education and Training was effective as at 13 December 1999. 50 Towards the end of 1999 the appellant sought incapacity benefits from First State Super on the basis that he was totally and permanently disabled. His application was dealt with by the Colonial Mutual Life Insurance Society Limited, the insurer of that benefit. By letter dated 13 June 2000 the appellant was advised by First State Super that his claim for benefits had been declined because Colonial Mutual had determined that he was not totally and permanently disabled as defined in the relevant policy. The appellant asked that that decision be reviewed by the Claims Review Committee, which considered his claim on 31 October 2000. The Committee determined that there was "an insufficient basis" to be satisfied that the appellant was totally and permanently disabled. In doing so the Committee noted that available medical reports did not indicate that any incapacity was likely to be permanent, that two doctors had recommended treatment "with the expectation that Mr Gedeon could return to employment" and that there was no report available from Dr Matheson on the outcome of the surgery, although that report "is to be obtained by the insurer". The letter from First State Super dated 1 November 2000 addressed to the appellant's solicitor concluded that the Committee "considered that it is not possible to fully consider Mr Gedeon's claim that he is permanently incapable of returning to employment until the outcome of his recent surgery is known, he has been assessed by an independent neurosurgeon, and has undertaken an appropriate course of treatment".

The Appellant's Evidence 51 The proceedings in this Court were pursued on the basis that the claim for total and permanent disablement benefits had not been accepted by Colonial Mutual and by First State Super. Indeed, the proceedings were vigorously opposed by the respondent, they having been conducted on its behalf by solicitors acting for Colonial Mutual. 52 Mr Gedeon's evidence concerning his disabilities and his capacity to undertake work and other activities predominantly took the form of an affidavit sworn on 1 May 2001, supplemented by oral evidence and comprehensive cross-examination which took place in February 2005 during the course of the hearing. 53 As at May 2001 the appellant said that he was taking between two and three tablets per day of 100 milligram-strength MS Contin. He was taking three Diazepam sleeping tablets each night and 225 milligrams of Effexor-xr, an anti-depressant. He said that he wore a cervical collar most of the time except when sleeping and that this provided him with support. 54 The appellant said that he had received home care assistance for about three hours per week prior to his wife arriving in Australia from China in February 2000. She then undertook all of the housework and assisted him in getting out of bed and the like. 55 In his affidavit the appellant said that he had applied for a number of administrative positions at overseas schools during 1999 and had been accepted for one position, but had been unable to take it up because of his condition. He applied for a position of homework tutor in July 2000 but was not accepted when he explained the nature and extent of his disability. Other applications for positions made in late 2000 were unsuccessful. 56 As at May 2001 the appellant said that he had reluctantly decided not to apply for jobs any more "as I am finding it hard to face continuous rejection when I disclose my disability in my application. This is humiliating after 14 years of successful career. I feel everything I have worked for in the last 14 years has gone down the drain". He also said that his only experience, training and education in his 14 years of working life was in the field of "education (teaching)". 57 As at May 2001 the appellant said that he was suffering severe pain and restriction of movement in his neck, constant headaches, pain radiating to his right arm and hand with resultant sensory disturbance and paraesthesia, pain radiating down his right leg, sensory disturbance to his right leg and paraesthesia, sensory disturbance to his left arm, pain radiation to his left leg with sensory disturbance and paraesthesia. He said that he could not stand for long periods, was unable to walk long distances, could not use his computer or write or research for long periods. In addition the appellant said that he was frustrated and angry and suffered mood swings, becoming easily irritable. He had difficulty in sleeping and was easily fatigued. He also complained of memory loss and loss of libido. He said that he was depressed and was unable to undertake shopping without difficulty or to perform any sporting activities, he was unable to carry heavy objects, and that he had difficulty ascending and descending stairs. 58 In supplementary oral evidence the appellant said that his wife continued to assist him until they separated in March 2002 and after that time, he firstly employed a carer, and later his brother, Peter Gorden, came to live with him and cared for him. This occurred in December 2003 and continues. 59 The appellant said that he did not do any cooking, did not wash any clothes or undertake any housework. He said he could not use the computer because it affected his neck, although occasionally there were times after the accident that he had been able to work on his computer. He said that he had not used his computer during the last two to three years. He said that his brother did the shopping and attended to the cleaning and other work in the unit in which he lived. 60 At the time of giving evidence in February 2005, the appellant complained of pain in his neck which radiated to his shoulder and back. He said that he was mostly confined to his home and spent much of his time in bed sleeping or watching television. He left home occasionally to visit a doctor and sometimes to go with his brother when he went shopping. 61 The appellant said that he was unable to undertake any sporting activities including swimming. He had travelled to Paris in 1999. In 2001 he travelled with his wife and stepson, and in 2002 travelled to Paris with his brother-in-law in order to see a neurosurgeon there. In 2002 he travelled alone but said that he was assisted by Qantas, which provided him with wheelchair services and assisted him on the plane, sometimes upgrading him to business class. He had also travelled overseas to Bangkok, which he visited again in 2003. He travelled to Korea in 2004. 62 The appellant described in his supplementary oral evidence the physical and mental attributes which he said were necessary to undertake teaching duties. He said that he was required to walk amongst the students in the classroom to check their work, to write on the blackboard, and to undertake supervisory duties during breaks. He was also required to prepare lessons which involved working at his computer. There was physical work involved in carrying books and other items. The appellant described teaching as requiring sustained concentration and the necessity to continually assess the students. He described marking 150 papers each week on the basis of one test per week. 63 The appellant described his working life as entirely involving teaching and associated administrative work. 64 The appellant was cross-examined about his ability to drive vehicles. His evidence was that he only drove his car occasionally on short distances. He said that he did not believe that he drove at all in 2001 after his wife had obtained a licence and drove him around. 65 In cross-examination the appellant said that he wore a collar about four hours per day and that he occasionally used a walking stick. 66 The appellant said that he had applied for a number of positions during 1999 because some of the doctors had told him that he was likely to recover and he sought work in anticipation of this occurring. I should comment that to some extent the job applications were inconsistent with the evidence, that in 1999 the appellant was seeking retirement from the Department of Education on medical grounds. The appellant endeavoured to explain this by saying that because of the medical evidence and the attitude taken by the department he had no option but to seek retirement on medical grounds. He also said that the fact that he had been retired came as a surprise to him. 67 Under cross-examination the appellant said that there were certain activities that he could undertake, such as driving without any apparent disability, and walking around for extended periods, if he was on medication at the time. He said that when he took MS Contin, he did not have any pain and this allowed him to undertake a lot of activities that he would not otherwise be able to do. 68 Whilst in the course of cross-examination, the appellant was shown a number of videos which depicted certain activities. I shall summarise briefly those parts of the video presentations which I felt were of assistance in determining these proceedings. On the second of November 2000 the appellant was seen to be walking slowly with a stick and getting into a car slowly. He reversed the car but did not move his neck in any manner inconsistent with his evidence. He leaned across the front of the car but his neck was held rigidly. He was seen reading a newspaper in the front seat of the vehicle. 69 Later the appellant was seen moving slowly in a shopping centre and carrying some packages. The weight is not known but they appeared to be light. The appellant was later seen walking and moving slowly through a market area with two women. There was a tendency for him to turn his whole body when turning around. In April 2001, the appellant was seen walking and bending forward. In doing so, however, he bent forward from his waist and not with his neck. The third tape was taken in April and May 2001. The appellant is seen walking with his wife and bending forward from the waist. He then catches a train. Whilst sitting in the train the appellant is seen to turn to the left to talk to his wife and is also seen reading some papers. He is seen to turn to the left to look out of the window but in doing so turns the whole of his body. For most of the time spent on the train, the appellant is seen to be immobile. When alighting at the station he is seen walking off slowly with his wife, ascending the steps supported by his wife. He walked down the steps, with his stick, with some difficulty. On 7 April, the appellant is seen bending forward from his waist whilst walking with his wife. The wife was holding an umbrella sheltering both of them. On 10 May 2001 the appellant is shown getting into a taxi with his wife, and holding his neck stiffly. Later he is shown in his kitchen opening a window, moving his neck to the left and bending forward, and he is not wearing a collar. In the fourth tape, taken on 5 and 7 February 2003, the appellant is seen walking across the street wearing a collar, but not using a stick. He appeared to be walking freely, holding a light parcel. The appellant got into a car, holding his neck erect while doing so. Later, he alighted from the car slowly and moved his neck to the right slowly. He was then seen using a mobile phone, indicating some movement in his neck. Later, holding a parcel, the appellant was seen getting into a car with his neck held erect. He then drove the vehicle. On the following day, the appellant was seen getting into a car carefully with his head erect, and driving it. Later he is seen walking freely and getting into his car, with his head erect. Later, whilst getting out of the car, the appellant bent over backwards to a significant extent and flexed his neck forward whilst doing so. He was then seen turning to the left but appeared to move his whole body to do so, and then turned to the right in the same way. Later he was seen getting into a car, moving easily at the waist but holding his neck erect. Finally, whilst walking with a stick and a satchel over his right shoulder, the appellant was seen turning his whole body. Later he was seen walking with the stick in his right hand. 70 During the course of cross-examination, it emerged that the appellant had complained of a number of his symptoms prior to the motor vehicle accident which occurred on 31 December 1998. In 1995 he had seen a doctor complaining of feeling depressed and suffering insomnia. As at September 1994, the appellant is recorded in medical reports as taking large amounts of sleeping and anti-depressant tablets. He also was recorded as having complained of a chronic back condition at that time. In about 1997, the appellant had undergone an operation on his coccyx to relieve pain in that area. In the course of giving this evidence, the appellant explained that he had encountered certain stressful situations whilst employed at two schools, and that this had created anxiety and led to him feeling depressed, with a consequent inability to sleep. He also said that the pain in his coccyx area resolved after the operation, and that his lower back pain also resolved. 71 When pressed in cross-examination concerning the history of problems arising before the motor vehicle accident, including chronic lumbar back pain, the taking of medication to alleviate insomnia and the like, the appellant stressed that he had not lost any time from work because of these problems. He contrasted this with his inability to work which he said arose after the motor vehicle accident in December 1998. 72 The appellant was also subjected to cross-examination concerning the effect that the medication which he continues to take has had on his ability to work. He responded that although he had said in his oral evidence that taking MS Contin gave him energy and enabled him to undertake certain activities for a longer period because he was not in pain, that the medication did not always have the same impact. He also said that taking MS Contin medication made him feel "groggy". 73 During the course of cross-examination, it was put to the appellant that he was capable of being employed in a number of positions. The first possibility was as a school principal. The appellant said that he could not work the hours demanded of a principal's position. The appellant said that his physical condition and his lack of concentration would preclude him from becoming a teacher of English as a second language, or as working as an education officer in private industry. He denied his ability to work as a translator, because he did not possess the qualifications required of this type of work. The appellant denied that he was physically capable of carrying out clerical tasks, whether skilled or unskilled. 74 The appellant was questioned about administrative work that he had undertaken in prior employment. He had performed administrative tasks whilst the Director of Alliance Francaise in Papua New Guinea, the teacher in charge of ESL at Moorebank High School and as the head teacher of a languages school in Bondi Junction. Included in the tasks associated with these positions was the necessity to keep records, to use the telephone and to liaise with other teachers. 75 The appellant listed under cross-examination a number of limitations which he said would restrict his ability to work. These included chronic fatigue, pain in the neck, shoulder and back radiating into the right leg more than the left leg, an inability to lift heavy objects and a lack of concentration coupled with memory loss. The appellant had attended a pain management clinic in 2000 and also in 2004 without success. The appellant said that he would be unable to undertake work answering telephones, filing material or writing for more than about five to ten minutes at a time. 76 In re-examination the appellant said that he had never received any training or instruction in keyboard skills, answering inquiries by telephone, or the maintenance of records.

Mr P Gordon 77 Evidence was given by Peter Gorden, the appellant's brother, who substantially assisted him as a carer. In an affidavit, Mr Gorden said that he commenced living with his brother as a full-time carer in about December 2003. He gave him his medication, consisting generally of pills for depression each morning and evening and five morphine pills at about 5:00pm each day, but sometimes in the morning. He also said that he did the household shopping and generally used his motor vehicle for this purpose. He said, however, that his brother had driven him to local shops a few times "probably no more than six times since December 2003". Mr Gorden undertook laundry for his brother and occasionally was required to assist him in bathing and going to the toilet. He also did all of the cooking and cleaning duties. Additionally, he typed letters which had been dictated by his brother. 78 Mr Gorden described his brother's condition as being variable from time to time. On some occasions, which he said were about one or two days per fortnight, his brother did not appear to be sick at all and generally watched television. He said that about two or three days a week, and sometimes for a whole week, his brother would be "completely useless; he doesn't get out of bed and is unable to do anything for himself…". His brother also complained from time to time about pain generally in his body and Mr Gorden described the need to massage him to reduce the pain. 79 Mr Gorden was cross-examined about the effects of taking MS Contin on the appellant. He denied that the appellant was more energetic after taking this drug but said that the appellant generally felt better. He said also that the appellant did not drive a vehicle after he had taken MS Contin.

The Medical Evidence Dr J Matheson 80 Oral evidence was given by Doctor John Matheson, the neurosurgeon who had operated on the appellant in March 2000. Dr Matheson explained, in the course of his evidence, that the operation had improved the appellant's condition in a neurological sense; that is, signs of the dysfunction of the cervical cord and hyper-reflexia in the upper limbs and sensory loss in the left hand had improved. However, the appellant's symptoms of neck pain had not improved. He said that the operation which had been performed on the appellant does not relieve neck pain. Dr Matheson commented that continued use of morphine, a reference to MS Contin, would not assist in enabling the appellant to return to work.

Dr K Walker 81 Oral evidence was given by Dr Kipling Walker, a consultant psychiatrist. He had seen the appellant four times between October and December 2000. Dr Walker had obtained a history of episodes of depression prior to the motor vehicle accident in December 1998. These were explained by reference to particular instances in the appellant's life, including the death of a brother. As at 2000 Dr Walker was of the opinion that the appellant was "clearly unfit for work as a teacher" because of his physical condition. Dr Walker thought that the appellant's depression would not impair his ability to work. 82 When questioned about MS Contin, Dr Walker agreed that it was a very powerful painkiller and, being a narcotic, could reduce energy levels and reduced interest in activity.

Dr G Mahoney 83 The appellant called Dr Graham Mahony, an orthopaedic specialist, to give evidence on his behalf, originally in connection with his motor vehicle accident. Dr Mahony provided initial reports in June 2003, which he updated on 22 February 2005 following an examination that day. 84 In his report of 22 February 2005, Dr Mahony noted complaints of pain in the back of the neck radiating through parts of the head and into the shoulders and both hands. This was associated with a feeling of pins and needles in both arms. The appellant also complained of lower back pain, radiating to the feet, numbness and pins and needles in his legs and weakness of the legs. On examination, Dr Mahony detected no irregularity of the shoulders and upper limbs, the back, the right hip or the lower limbs. 85 Dr Mahony was of the opinion that the appellant's symptoms in the neck and upper limbs were the consequence of the cervical disc lesion and the accompanying nerve-root irritation. He also thought that the lower lumbar back strain with accompanying nerve-root irritation was associated with altered spinal function "being indirectly related to his neck condition," even though the appellant had a history of lower back pain prior to the motor accident. He said that the appellant suffered from myelomylopathy and considered that this would increase over time. In evidence, Dr Mahony described this as involving cystic changes within the spinal chord itself, which affects the spinal chord and causes pain. Dr Mahony described this as a gradual development following the trauma to the neck. 86 Doctor Mahony was unable to find any organic cause for the appellant's complaints referable to his shoulders and upper limbs, or for the appellant's complaints concerning his lower limbs. 87 Doctor Mahony viewed the four video tapes. Whilst Dr Mahony was not asked specifically to give evidence about the impact of what was shown on the video tapes, he did summarise his comments on the tapes in a report of 15 March 2005, and I infer that there is nothing that was seen by Dr Mahony in those tapes which would cause him to alter his opinion as previously expressed. Certainly he gave no evidence to indicate otherwise.

Dr F Abouzeid 88 Evidence was given by Dr Fadi Abouzeid, the appellant's general practitioner since 24 September 2002. I should add that Dr Abouzeid was called to give evidence on the court's suggestion because he had and continues to have frequent contact with the appellant and, on the basis of evidence given by the appellant, was actively involved in the management of his condition. Doctor Abouzeid prepared a report which, although undated, appears to have been prepared in March 2005. The report describes the appellant as suffering from chronic neck pain, and the complications of that pain, which Dr Abouzeid believed was the result of the motor vehicle accident on 31 December 1998. He said that the appellant's prognosis was "guarded". Doctor Abouzeid described the appellant's initial complaints as being representative of "chronic pain syndrome" characterised by "reduced activity, unhelpful beliefs and thoughts, repeated treatment failures, long-term use of analgesic drugs, loss of job, financial difficulties, family stress". He described the impact of muscle wasting, the appellant's feeling of "depression, helplessness and irritability" and noted the side-effects of medication, including "stomach problems, lethargy, constipation and many other variable physical symptoms". Doctor Abouzeid described an attempt at focussing on pain management and a single referral to the pain clinic at Royal North Shore Hospital in July 2004. He also discussed his treatment plan for the appellant, including a gradual reduction of ingestion of morphine, increased physical activity and involvement in social activities. Doctor Abouzeid believed that if there had been an early intervention with counselling and pain management in 1998/1999 this may have prevented "a great deal of Mr Gedeon's suffering. Mr Gedeon is a classic textbook case of the effect of poorly managed chronic pain on an individual. My concern is the effect of chronic pain (Physical deterioration, Depression, Side-effect of long-term use) on Mr Gedeon, which has been present for so many years, is so well entrenched that I feel it is unlikely that Mr Gedeon will be able to return to a normal life or his pre-injury status". Doctor Abouzeid concluded in his report that: "Mr Gedeon has a serious disability which is a chronic neck pain and all complications of chronic pain. Although I believe that with extensive counselling we may be able to reduce Mr Gedeon (sic) reliance on opiates, improves (sic) his physical condition and depression, however I do not believe that he will be able to follow his own occupation and any other occupation which he is reasonably suited by education, training or experience and it is unlikely that Mr Gedeon will ever be employed or attend by any such occupation". 89 Doctor Abouzeid was cross-examined extensively by reference to his clinical notes. Much of the cross-examination centred around the prescription and use by the appellant of MS Contin and the dosage levels. Doctor Abouzeid was of the opinion that the appellant's reliance and the level of use of MS Contin was unfortunate, but he had endeavoured to reduce the levels prescribed and to counsel Mr Gedeon about reliance on MS Contin without success. 90 It was the evidence of Dr Abouzeid that it was impossible to predict the consequences and effect on the appellant of withdrawal of the reliance by him on MS Contin, especially without addressing issues such as the appellant's chronic pain in his neck. 91 It was the opinion of Doctor Abouzeid that the success rate in general terms of securing a withdrawal from dependence on MS Contin was very small. 92 In cross-examination Dr Abouzeid stressed that the appellant's problems were multi-factorial. In addition to the chronic pain, he clearly was dependant upon morphine, suffered a form of adjustment disorder and was affected by his lack of exercise and the medication that he was taking. There were signs of chronic fatigue syndrome. Although the appellant had not responded well to counselling, he had attempted in August 2004 to focus his attention on something else when he started work on his thesis. 93 Dr Abouzeid was carefully cross-examined about what was disclosed on the video taken of the appellant's activities on 6 and 7 February 2003. They showed the appellant in a happy mood and seemingly relaxed. Doctor Abouzeid did not think that this was an extraordinary situation and said that the appellant often appeared that way in his surgery, when he saw the appellant during counselling sessions lasting 30 to 40 minutes, and at the appellant's home. However, Dr Abouzeid said that he was able to detect from the video that the appellant was suffering pain in the context of his activities. 94 The videos also showed the appellant moving around reasonably freely. Doctor Abouzeid emphasised that it was inappropriate to make an assumption about the appellant's condition and his activities on what was revealed in the video. He emphasised that it would be necessary to look at whether or not the appellant could undertake those activities over a long period of time by reference to the appellant's "endurance". 95 In essence, Dr Abouzeid was of the opinion that whilst no-one could predict with certainty the eventual outcome concerning the appellant's condition and as to whether the appellant might make a complete recovery, he felt that the chronic nature of the appellant's problems since 1998 were against him and that the prospects of a recovery and a successful return to work were limited. 96 I should add that I was impressed by what I perceived to be the pragmatic and realistic approach of Dr Abouzeid and his readiness to concede that, in effect, the appellant's problems were caused by a number of factors. Nevertheless, all of those factors were derived from and related to the appellant's neck condition.

Dr A Silver 97 Evidence was given by Dr A Silver, who had been the appellant's treating general practitioner since January 1992 and whom he last saw in 2001. A number of reports from Dr Silver were tendered into evidence. The latest was dated 10 April 2001 in which he expressed the opinion that the appellant was permanently unfit for work. This was because of the appellant's continuing symptoms and pain in the neck despite his surgery. 98 Doctor Silver was shown the videos taken of the appellant's activities on 6 and 7 February 2003. These disclosed the appellant driving, walking and moving without a lot of restrictions. On the basis of what was seen in those videos, Dr Silver was of the opinion that the appellant could undertake some activities which did not involve rapid movement of the neck or prolonged flexing of the neck. However he conceded that the videos were incapable of demonstrating any mental state which might affect the appellant.

Dr J Govid 99 Evidence was given by Dr Jay Govind, who is a specialist physician in the area of occupational medicine and pain management. Doctor Govind saw the appellant once on 2 December 1999 and furnished a report of 6 December 1999. This was prior to the appellant undergoing operative treatment. Doctor Govind concluded in his report, following his examination of the appellant and based on the history given, that "it is unlikely that Mr Gedeon would return to his substantial position in the foreseeable future (under 3-4 years)". 100 Doctor Govind was cross-examined about the effect of taking MS Contin and the dosage which the appellant was taking. He thought that it was an extremely large dose and its effect would depend upon the appellant's tolerance. Doctor Govind was shown a video of the appellant's activities on 6 and 7 February 2003. Doctor Govind was asked to give an opinion on the appellant's capacity to undertake certain physical activities based on the video. As Dr Govind pointed out, the video showed the appellant getting in and out of a car but did not really impact upon the appellant's general ability to drive. Doctor Govind thought that, based solely on the video, the appellant was capable of doing some work. However, in re-examination he conceded that the appellant's ability to move, assuming underlying pain, would increase depending upon the level of pain relief being provided by medication. He conceded that if a person was in pain, then obviously his or her physical movements would be restricted. 101 As Dr Govind conceded, any opinion which he expressed would be speculative.

Dr K Bleasel 102 Mr Gedeon was examined by Dr Kevin Bleasel, neurosurgeon, on three occasions, namely 6 February 2001, 2 September 2003 and 23 February 2005. The two earlier examinations were arranged in connection with his motor vehicle accident claim, and the last with respect to these proceedings. 103 In a report dated 8 February 2001, Dr Bleasel obtained a history of a pre-existing problem with the appellant's coccyx, which was resolved by operative treatment, and a period of depression after his brother had been killed by a landmine. As at February 2001, Dr Bleasel noted that following the operation by Dr Matheson, an MRI scan revealed that the spinal cord had been cleared and looked normal and that there was no evidence of myelomalacia. In this regard Mr Gedeon's previous symptoms had improved. However he noted his complaints of being "very depressed", headaches, constant neck pain, tingling in the arms and legs, a loss of sensation in the legs, a slow start to micturition and difficulties with intercourse. Dr Bleasel noted restriction in the range of head and neck movements and arm movements at the shoulder. As I understand Dr Bleasel's report at that time, he was of the opinion that Mr Gedeon's difficulties were caused by "considerable psychological disturbance as a result of his disability and his inability to work". He thought that it was unlikely that Mr Gedeon would improve and that it was impossible to give any accurate prognosis "until the psychological problems have been brought under control". 104 In a report of 3 September 2003, Dr Bleasel noted that Mr Gedeon remained depressed by his lack of progress and complained of increased neck pain, bilateral shoulder pain, numbness of the right hand, constant low back pain, and sensation in his legs. He noted that Mr Gedeon said he had been diagnosed as suffering from chronic fatigue syndrome. On examination, Dr Bleasel noted restrictions of the kind set out in his previous report. In terms of diagnosis Dr Bleasel said "his condition remains as before: myelopathy due to cervical disc injury and that a result of the events on 31 December 1998. He remains severely disabled with neck pain and neurological changes due to his cervical cord damage". I understand this opinion to focus attention more on the sequelae of the cervical disc injury and the operative disc treatment rather than on any underlying psychiatric or psychological or functional overlay. 105 Doctor Bleasel at that stage said that Mr Gedeon was "quite unfit for his former occupation as a school teacher. His only occupation has been teaching and there is no likelihood that he could find work in this field and he would not be capable of distance education". 106 Doctor Bleasel provided two final reports dated 1 and 2 March 2005. The first summarised what Dr Bleasel had seen in viewing the videotape recordings which he said dated from 2 November 2000 until 7 February 2003. Doctor Bleasel was unable to ascertain any inconsistency between any of Mr Gedeon's activities as shown in the videotapes and his expectations of Mr Gedeon's activities as revealed by his examination of him. Even though one of the tapes showed Mr Gedeon walking up a long flight of stairs and going downstairs and not using a stick, Dr Bleasel did not find this inconsistent with the history given by Mr Gedeon, who said that he used a walking stick as a protective measure because his leg could go numb and he might fall if he did not have the support of a stick. In the video of 7 February 2003 which showed Mr Gedeon out shopping, wearing his soft cervical collar and holding his walking stick in either left or right hand, Dr Bleasel noted "that he was slower than other pedestrians when crossing the road". Doctor Bleasel concluded that "overall, there was nothing that I could gain from my inspection of the tapes. He does not have a spastic gait but it was certainly evident that he always wore his cervical collar and that he always had his walking stick". 107 In his report of 2 March 2005, Dr Bleasel noted a continuation of the previous symptoms. On examination he found that Mr Gedeon's right shoulder was still stiff and restricted in range, that there was a deficiency in the upper limb reflexors and "very poor position sense of the toes of the feet". He concluded that "there is still ample evidence of existing spinal cord damage, although it is not as great as it was prior to the surgery… the real problem in his case is his future. There has undoubtedly been a severe insult to the cervical spinal cord and he still has evidence of persisting damage…With this type of myelomalacia, further deterioration and syrinx formation can occur, increasing the neurological deficit. This had not happened as yet, but it had to be taken into consideration as it can happen in 15 or even 20 years time". 108 When cross-examined about the impact of the medication being taken by Mr Gedeon on his ability to perform work, Dr Bleasel expressed the opinion that the combined effect would be to "dull the brain". Even though the videos revealed that Mr Gedeon may have some limited physical capabilities in the context of performing work, and allowing for the fact that if he was involved in the less arduous work of an educational administrator, Dr Bleasel was unsure that Mr Gedeon would be able to work the hours appropriate to a full-time position. Doctor Bleasel also revealed in cross-examination that it was his opinion that Mr Gedeon's symptoms matched up with the consequences of the spinal cord damage. 109 My overall assessment of Dr Bleasel's evidence is that he remains of the opinion that Mr Gedeon is permanently and totally unfit for work.

Dr A Christie 110 Evidence was given for the respondent by Doctor Anthony Christie, an occupational physician and medico-legal consultant. Dr Christie initially became involved in Mr Gedeon's claim in the year 2000 when he had reviewed a number of medical reports for the respondent. Having done so, he expressed the opinion that Mr Gedeon was not totally or permanently incapacitated for work. 111 Dr Christie issued a report dated 26 November 2004, subsequent to his examination of Mr Gedeon three days earlier. On examination, Dr Christie noted reduced lateral rotation and flexion of the neck to the left side, but almost full rotation on the right. He noted the absence of a biceps jerk on either side, indicating a problem at the C5/6 level. There were also complaints of pain and restriction in straight-leg raising, and a lack of stability whilst standing on the right foot. Dr Christie noted that there was, "surprisingly", one centimetre wasting of the left quadriceps and wasting of the left calf. He noted also, complaints of ongoing pain "far worse in the afternoon" and the fact that Mr Gedeon was taking 600 milligrams of morphine sulphate per day, taken in the afternoon. He also noted complaints of chronic fatigue syndrome. 112 Dr Christie concluded that Mr Gedeon had been left with some residual disability following the operation to his neck but said that it was "unlikely" that all of his symptoms could be explained on a physical basis. He thought that Mr Gedeon was either habituated or perhaps addicted to morphine and recommended that he consult a drug and alcohol specialist. 113 In giving his opinion on prognosis, Dr Christie said in that report, "his condition is stable and ongoing. There has been no improvement in the last four years and none is anticipated. There has been no change in treatment. He continues to take very large doses of opiates. I believe that his prognosis can only be altered by efforts to remove the opiate analgesia". Dr Christie described the appellant's present condition as "stable". He noted that he required a 24 hour carer "and is totally incapable of returning to any form of work while taking that level of opiate". Dr Christie was of the opinion that Mr Gedeon was unfit to undertake any form of employment "by reason of his reported symptoms and his continuing intake of opiate analgesia". 114 Dr Christie provided a further report dated 30 March 2005. This followed his viewing of the video footage which I have previously described. Dr Christie noted some inconsistencies between what he observed in the films, and the appellant's complaints made to him during the course of his examination. In particular, Dr Christie said that the film showed "very varying levels of activity and varying degrees of neck stiffness. He always wears a soft collar; however on many occasions that soft collar is worn so loosely that it would not provide any restriction or support in his neck". He noted also, inconsistencies in the way in which Mr Gedeon carried a walking stick and used it, and that he appeared "to be able to move quite freely without any stabilising device and at one point in 2003 even appeared to run with no suggestion of pain or instability". 115 Dr Christie again referred to Mr Gedeon's dependence on morphine, and noted that the amount that he was taking was some 20 times what would be considered "an extremely high dose". He was concerned that the medication, MS Contin, would provide relief for approximately 12 hours which is why it is usually prescribed on a twice or 3 times per day basis. Accordingly, if Mr Gedeon were not suffering pain 12 hours after taking MS Contin, this was indicative that his pain "was not of physical origin but more likely due to opiate withdrawal". 116 In this latest report Dr Christie expressed the opinion that Mr Gedeon's current capacity for employment was restricted by reason of his subjective symptoms, but that they would need to be reassessed once he had ceased using opiates. Accordingly, his ability to return to his occupation as a teacher would be dependent upon Mr Gedeon successfully withdrawing from his addiction or habituation to opiate medication. 117 In the course of oral evidence, Dr Christie said that withdrawal from an opiate would exacerbate a patient's pain. He described it as "psychological pain" which "has no physical cause but nevertheless the pain can be just as real". In describing the sequelae of the motor vehicle accident in December 1998, Dr Christie said "I am sure he did suffer pain as a result of the motor vehicle accident and I think it is quite possible that he continued to suffer pain and discomfort. However, the fact that he does not have pain developing within 12 hours of his last dose of MS Contin suggests very strongly to me that he no longer develops physical pain but in fact develops psychological pain". 118 When asked to comment about the possibility of Mr Gedeon being able to be free of habituation, Dr Christie said that he was not experienced in treating people with drug addiction. However he commented that it was necessary to rely completely on the subjective symptoms about which Mr Gedeon complained. Dr Christie said that Mr Gedeon had "a reason for suggesting symptoms himself, he has had fusion of his neck. He is missing his biceps jerks on both sides and its quite possible that this man has a level of discomfort. However, it's impossible for him to give an honest appraisal of his range of movement or of his ability because it is necessary for him psychologically to keep up a total barrier in order to justify the level of opiate that he is receiving". Dr Christie was unable to express any opinion about the likelihood of Mr Gedeon successfully withdrawing from opiates.

Dr A J Bookallil 119 Reports were also tendered on behalf of the respondent from Dr A J Bookallil, a consultant neurosurgeon. His first report is dated 1 March 2000 and follows an examination on 24 February 2000. As at that date Mr Gedeon was continuing to experience severe pain and complained of a variety of symptoms, some of which Dr Bookallil said did not have any physical basis. He was of the opinion that Mr Gedeon was "markedly depressed as a direct result of the awful situation that he finds himself in" and recommended treatment for depression and attendance at a pain management clinic. In a report of 11 May 2001, following a further examination the previous day, Dr Bookallil noted that Mr Gedeon had subsequently undergone a fusion by Dr Matheson. He noted that Mr Gedeon complained of increasing rather than abating pain, and was pessimistic that he would ever return to gainful employment. 120 Dr Bookallil was asked to expand on his opinion and issued a supplementary report on 14 September 2001. As at that date he said that Mr Gedeon "would experience severe difficulty returning to work in his previous occupation as a language teacher. I am of the opinion that there is overwhelming depression and anxiety together with overwhelming pain present. It could well be that the depression is increasing the pain. I do not consider that Mr Gedeon could tolerate the normal hours required of a teacher, even if he only taught one or two periods per day there could still be problems". Dr Bookallil went on to say that there were a number of vocations which Mr Gedeon, by reason of education, training and experience, was qualified to undertake. He concluded, however, that "I am not of the opinion that Mr Gedeon is not capable of working. I consider that he could be rehabilitated into a number of positions in which he is quite highly qualified". 121 Dr Bookallil was requested to provide a further report, having viewed the video films and did so on 9 March 2005. He thought that, on the basis of those films, which were taken over a three year period, that Mr Gedeon would not need a carer, he was able to walk briskly and to drive a car, that he used a walking stick more as "a fashion accessory than a surgical aid," and that the collar was worn in such a way that it would not immobilise his neck, and that the videos also showed Mr Gedeon having some mobility in his neck. 122 Dr Bookallil referred in his report of 9 March 2005 to a CT Scan undertaken of Mr Gedeon's neck in October 1996. On this basis, he thought that it was conceivable that there might be an increase in symptoms due to the motor vehicle accident. 123 Dr Bookallil recommended that Mr Gedeon undertake an active rehabilitation programme and that he be taken off MS Contin completely. He thought that Mr Gedeon was "now completely and utterly addicted" to MS Contin. 124 When addressing Mr Gedeon's current capacity for employment, Dr Bookallil said that "it is not possible for me to state his current capacity for employment but I consider that there is a potential" for Mr Gedeon to resume teaching. He then said "however, it may be that his psychiatric pathology may negate that course of action". He concluded that a resumption of work would be dependant upon rehabilitation.

Dr G Gibney 125 The respondent had arranged for Mr Gedeon to be reviewed by a number of other medical practitioners, the details of which I shall summarise shortly. Dr Gerard Gibney, a consultant psychiatrist, issued a report dated 1 March 2000 following an psychiatric assessment the previous day. At that stage Dr Gibney concluded that Mr Gedeon was "suffering from an adjustment reaction with intermittently depressed mood and with symptoms of anxiety, including panic attacks". He said that the psychiatric condition of itself was not sufficient to incapacitate Mr Gedeon from work, but he thought that the psychiatric illness and Mr Gedeon's preoccupation with his physical complaints "would be making those physical complaints appear more serious and more disabling than otherwise would be the case". He felt that Mr Gedeon would be able to return to work if he could "recover from his physical injury". However, at that stage he regarded him as being unable to attempt work. A further report from Dr Gibney addressed to the respondent's solicitor dated 10 April 2001 expressed a similar conclusion, noting that Mr Gedeon had by that stage undergone spinal fusion. 126 The respondent's solicitors requested a supplementary report from Dr Gibney. In a letter dated 13 September 2001, Dr Gibney said that he believed that Mr Gedeon would, on the balance of probabilities, "be able to reach the stage of being able to perform work in his previous occupation if he could be rid of his chronic pain. At present the level of his depression and his anxiety and the presence of panic attacks would debar him from any regular gainful employment…". He also said "I believe that his psychiatric illness will leave him with a permanent impairment and I believe that his efficiency in the workforce, even in his previous occupation as a teacher, would be permanently impaired".

Dr D Gronow 127 Dr David Gronow reported to the respondent's insurer on 26 April 2000. Dr Gronow is Medical Director of the Sydney Pain Management Centre. He said that Mr Gedeon suffered from a "marked disability" with respect to his cervical spine injury and accepted that at that stage he was "totally disabled from his pain", which he felt was mainly soft-tissue, with a marked psychological response to it. He said that Mr Gedeon was unfit to work as a teacher. However, with treatment it was possible that Mr Gedeon might improve. He concluded: "Due to his considerable level of disability at the current time, I would not anticipate there to be any significant improvement for at least six months and possibly 12 months. I would, therefore, feel that assessment of permanency of his incapacity is not possible at this time. In some cases, change is not possible, and they do remain permanently incapacitated".

Dr S Potter 128 Dr Stephen Potter, a rheumatologist, reported to the respondent on 16 October 2000, having examined Mr Gedeon 3 days earlier. Dr Potter was unable to discern any physical basis for the extent of Mr Gedeon's professed symptoms and thought that they resulted either from anxiety or "contrivance". He thought that Mr Gedeon's "major pathology is abnormal illness behaviour where, indeed, the aspects are psychosomatically driven". He felt that if Mr Gedeon was disabled, he was only partly disabled. He did conclude, however, that his assessment of Mr Gedeon's ability to work as a teacher was from the point of view of his specialty of "musculoskeletal medicine, rheumatic disease and neck pain management". He thought that "it may well be that a judgment is made by my colleagues that on behavioural, psychosomatic, psychological and depression terms he has an ongoing significant disability".

Prof. J G McLeod 129 Professor J G McLeod, a consultant neurologist, had originally examined Mr Gedeon on behalf of solicitors acting for him in connection with a damages claim arising out of the motor accident. In a report to Mr Gedeon's then-solicitors dated 9 January 2001 Professor McLeod said that he was unemployable as a teacher "because of his symptoms of irritability, poor concentration and fatigue which are in part secondary to the side effects of his medications and to psychological problems". In a report to the solicitors acting for the respondent dated 25 September 2001 Professor McLeod concluded that: "With his education, training and experience, he would be able to undertake teaching, clerical and administrative work. There are no physical reasons why he should not undertake this work but there are psychological factors which may make it difficult for him to find employment. Comment on these factors is beyond my expertise…".

Dr J Maquire 130 The appellant was assessed by Dr James Maguire, a consultant psychiatrist, on 29 June 2001 at the request of solicitors who, I gather, were representing the third-party insurer in defending the claim for damages brought by Mr Gedeon. After interviewing Mr Gedeon, Dr Maguire examined in great detail a large number of medical reports which had been made available to him. He formed the impression that Mr Gedeon did not appear to be clinically depressed and that he was exhibiting what Dr Maguire called "abnormal illness behaviour" which he said indicated that Mr Gedeon's disability "is primarily the result of 'psychological factors' in determining whether Mr Gedeon was consciously or unconsciously exhibiting symptoms of an "abnormal illness behaviour". Dr Maguire said that he was "entirely reliant on the veracity of the person reporting their symptoms". He believed, on the basis of discrepancies and "disinformation" which was provided to him and to others as reported in the medical reports, that Mr Gedeon was not to be believed, and that he was capable of manipulating his treating doctors. He felt that there was "a good deal of conscious exaggeration if not frank malingering" on the part of Mr Gedeon. On this basis, Dr Maguire assessed that psychological or psychiatric treatment would not be beneficial. Dr Maguire conceded that if Mr Gedeon's complaints could be accepted as being genuine then his adjustment disorder and depressed mood resulting from his pain and disability "might have merged into a major depressive disorder" as had been diagnosed by Dr Walker.

Analysis of the Medical Evidence 131 It is obvious from the discussion of all of the medical evidence which I have summarised above, that there is a divergence of opinion between the several medical practitioners who have treated Mr Gedeon and the many to whom he has been referred for the purpose of medico-legal assessment. Despite the extremes of opinion (for example, that of Dr Maguire) the preponderance of the evidence is to the effect that Mr Gedeon suffers from some residual pain associated with his fused neck as a consequence of the operation, which has led to a dependence upon morphine. It is more likely than not that Mr Gedeon is addicted to morphine. In addition, there may be "psychological factors" at play as described by most of the medical practitioners. It is impossible to assess the nature and extent of the physical pain because it is masked to some extent by the morphine which is taken in extraordinarily large doses. On the other hand, the morphine is said to be effective for about 12 hours only and there is therefore a period of about 12 hours in each day when whatever residual disability Mr Gedeon suffers from which has some form of organic or physical basis is not masked by the morphine. Nevertheless, it is possible, that the withdrawal of the morphine during this period itself causes pain, as attested to by Dr Christie. 132 It has not been demonstrated that Mr Gedeon is consciously feigning his symptoms, although he may exaggerate his reaction to them. I accept the evidence of Dr Abouzeid, who has treated Mr Gedeon since September 2002 and continues to treat him. Dr Abouzeid is certainly aware of the adverse effect on Mr Gedeon of his dependence upon morphine, and has endeavoured to reduce that level of dependence. However, Dr Abouzeid was of the opinion that the prospect of successfully securing a withdrawal from dependence on morphine was "very small" and in the interim Mr Gedeon remained permanently and totally incapacitated for work. 133 The thrust of the medical evidence, in summary terms, presented on behalf of the respondent, was that Mr Gedeon might be able to return to some form of gainful employment once his addiction to morphine was resolved, although there is a general concession that he has an underlying restriction in upper body movement as well as pain associated with his ongoing condition. No evidence has been presented on behalf of the respondent to counter the opinion of Dr Abouzeid to the effect that the prospects of successfully rehabilitating Mr Gedeon from his addiction problem are very small. The preponderance of the medical evidence is, therefore, to the effect that there are limited prospects of Mr Gedeon's multifactorial condition resolving. On this basis it is difficult to resist coming to a conclusion that he must be considered, for the purpose of his entitlement, to benefits under the superannuation fund as being totally and permanently disabled from work. The bulk of the medical evidence clearly establishes present, and likely ongoing, incapacity for any work. 134 During the course of extensive and helpful written submissions, Counsel for the respondent, Mr Radojev, highlighted a number of instances where there was clear inconsistency between various histories given by the appellant to a number of doctors and the evidence as it was revealed in the proceedings. By way of example, the appellant had given a history to a number of doctors of serious lower back pain over a number of years preceding the motor accident in 1998. He had also given conflicting evidence as to whether that pain had abated following operative treatment carried out before the motor accident. In the same way the appellant denied suffering from depression or psychological problems prior to the accident in 1998, yet there were histories given to some of the doctors that the appellant had been depressed prior to that time, and that he had received treatment by way of antidepressants and treatment for a sleeping disorder. Furthermore, there is clearly tension between some of the evidence given by the appellant as to his inability to drive and that which is revealed in the videos to which I have referred. Again, there was an inconsistency in the evidence given by the appellant as to his inability to have sexual intercourse with his wife after the accident. The truth is that the appellant did not meet his wife until January 1999, after the accident had occurred, nor did he appear to live with her for some considerable time thereafter. There is evidence that the appellant had commenced a period of sick leave and was paid sick leave entitlement whilst he was overseas for the purpose of marriage. There must also be some doubt concerning the appellant's accurate narration of his symptoms given his frequent travel overseas after the motor accident. 135 There can be no doubt the appellant has exaggerated his symptoms during the course of giving evidence. The inconsistencies to which I have referred, and some of the material revealed in the videos, must create some measure of doubt concerning the appellant's condition. However, I am unable to conclude based on the evidence that the appellant is consciously feigning symptoms or that, discarding a degree of exaggeration, he does not suffer from a variety of symptoms which, in the aggregate, create disability. 136 The thrust of the respondent's case is that, with appropriate treatment and rehabilitation, the appellant should not be considered as being totally and permanently disabled within the definition contained within the policy. However, the evidence in support of this case as given through the various medically qualified witnesses to whom I have referred, consists of no more that an assertion uncorroborated by any specific opinion having regard to the appellant's complaints and the accepted pain from which he is suffering and his accepted addiction to morphine. In my opinion it is unsafe to proceed on the basis of mere assertion by a number of medical practitioners retained by the respondent, particularly as such opinions are not shared by a number of medical practitioners retained by the appellant and, indeed, some who gave evidence on behalf of the respondent. Indeed, the approach which the respondent's insurer appears to have taken involves, in my opinion, selective reliance on particular and discrete portions of some only of the medical reports which might be considered as supporting the denial of the claim. This is not, in my opinion, the approach which is required to be taken which I have previously described, namely a consideration of the matter in good faith and upon a real and genuine consideration of all relevant material. Each of the opinions expressed by the medical practitioners needs to be balanced against the opportunities for physical examination and the consideration of all relevant material by each medical practitioner having particular regard to the date upon which any examination or examinations occurred. It would seem inappropriate to rely upon an opinion expressed in 2000 when the determination of this matter focussed on the condition of the appellant in 2005. Since 2000 the appellant has clearly continued on a regime of pain management involving excessive reliance on narcotics, has unsuccessfully attempted attendance at pain clinics and has continued to make complaints of chronic and persistent pain, some of which is said to have a pathological basis and some of which appears to have no pathological basis. Each of the opinions expressed by each of the medical practitioners needs to be evaluated in this context having regard to what has occurred and, indeed, what has not occurred during this time frame. In addition, what needs to be undertaken is an assessment of the preponderance of the medical evidence. It is not permissible to rely upon the opinion of one or a few medical practitioners only and discard the opinions of the remainder of the medical practitioners without some sound basis for doing so. In my opinion, the preponderance of all of the medical evidence, including that called on behalf of the respondent, supports the appellant's case. Whilst the definition of "total permanent disablement" speaks of medical evidence "satisfactory to" the insurer, the relevant principles which apply to the process of determination of the claim do not permit of an arbitrary selection of that which is "satisfactory" by reference, for example, to that which might justify the rejection of the claim. What is satisfactory is to be determined in the context of the duty to determine the claim in good faith, upon a real and genuine consideration of the matter, in accordance with the purpose for which such a benefit is created under the superannuation regime and by adopting a soundly based reasoning process. In pursuing the matter in this way, the medical evidence clearly supports the appellant's claim.

The Vocational Assessment 137 I refer also to evidence adduced by the respondent in aid of its submission that the appellant is not disabled from working in "any other occupation" as described in the definition, the meaning of which I have discussed earlier at paragraphs [30] and following in these reasons for judgment. In particular, I refer to the conclusion which I reached in paragraph [35] as to the evidentiary material which needs to be established in support of any contention that the appellant was not so disabled. The respondent relied principally in this area on a report of Inez Farag, a physiotherapist, issued under the name "Vocational Capacity Centre". The report is dated 7 March 2001 and is addressed to a firm of solicitors. It follows referral of the appellant "for an evaluation of his functional and vocational capabilities". The report commenced by indicating that "the overall assessment concluded that Mr Gedeon should be capable of returning to his pre-injury job as a High School Languages Teacher. There are, however, some barriers to his return to work, including psychological issues, drug use and pain management. These would need to be addressed for a successful return to work". 138 The report said that it had been determined that Mr Gedeon was "also suitable for a range of other occupations". This was based upon a vocational assessment which "involved the administration of tests of intellectual and educational ability, and vocational preferences. This assessment also included a determination of relevant skills obtained from work experience, and interests and hobbies". The vocational assessment noted that the appellant's performance on testing was below his expected general reasoning ability given his educational and work background. It said: "His level of concentration and attention raised the issue of whether his use of medication or his overall level of depression was significantly interfering with his performance. If his performance during testing was an actual reflection of his ability then it would seem unlikely that he is cognitively capable at present of teaching duties and it would be most unlikely that he would be capable of performing duties of a school principal to which he aspires. Given his educational achievements, it does appear either drug, pain or psychological issues limited his level of performance during testing". There was a repetition of the need to address Mr Gedeon's "medication use and general pain management coping techniques" and a need for treatment with respect to his depression and "alleged anxiety over driving". 139 I observe that these conclusions support the preponderant effect of the medical evidence to which I have earlier referred. 140 The report then proceeded to select a number of "most suitable vocational occupations" and a number of jobs were detailed as being within the appellant's "current physical and intellectual capabilities" and for which it was said there was no requirement for formal training. They are listed as: "English as a second language teacher, education officer, translator, secondary school teacher (French), inquiry clerk, library technician, project or program administrator, librarian, youth worker and travel agent". There is no information furnished with respect to any of these occupations. It is obviously not necessary to deal with the nature and extent of the appellant's ability to undertake the work of a teacher as described. However, nothing is said about what is involved in the work of any of the other occupations named, and there is no attempt to identify any particular position and to describe with respect to it the nature and extent of the work duties involved, the nature and extent of any necessary training or technical knowledge required, and the physical demands which may be associated with the particular occupation. I have already made some general comments about the type of evidence that would need to be adduced in paragraph [35] of these reasons for judgment. The same comments would apply, in my opinion, to a "youth worker", "project or program administrator", and the like. These occupations may, indeed, require a great deal of physical activity. A youth worker may need to have certain skills in dealing with youth, including problems likely to be encountered by youth, such as drug and alcohol problems, dealing with dysfunctional families and the like. 141 The bald assertion contained within the report of Vocational Capacity Centre is not, in my opinion, sufficient to render it appropriate to rely on that evidence for the purpose of determining whether the appellant falls outside the definition of total permanent disablement.

Conclusion 142 I conclude that the appellant suffers from restriction in movement in the cervical spine and upper body area, and chronic pain which is associated both with the sequelae of his operative treatment and a continuing degenerative condition. He is also addicted to morphine and suffers disabilities associated with this. Furthermore, the appellant suffers from an underlying morbid condition of the mind. All of these prevent him from working and attempting work of any kind. 143 In the aggregate I find that the appellant is disabled, as a result of the illness and the injury described, from following his own occupation as a teacher, including administrative work associated therewith, and is unable to follow any other occupation to which he is reasonably suited by education, training or experience. That inability has subsisted for a period of six consecutive months after the date of disablement and I consider, on the basis of the medical evidence to which I have referred, and which I find as satisfactory upon which to rely, that the appellant is unlikely ever to be employed or attend to any such occupation. 144 Accordingly, the appellant is successful in the appeal, and should have an order for costs in his favour. 145 ORDERS I make the following orders:

The appeal is upheld; 2. The respondent is to pay the appellant's costs assessed in accordance with the Legal Profession Act in default of agreement.

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

Builders' Licensing Board v Sperway Constructions (SYD) Pty Ltd (1976) 135 CLR 616 Chammas v Harwood Nominees Pty Ltd (No 1) (unreported, 14 April 1983, 2081 of 1980) Constitution Insurance Company of Canada v Coombe 1997 CanLII 1845 (ON C.A) Favelle Mort Ltd v Murray (1976) 133 CLR 580 Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214 CASES CITED: Labelle v Great West Life Insurance Company (1986) 17 CCLI 173 Munios v Johnson and Johnson Retirement Benefits Limited (unreported, 5 December 1996, No 3597 of 94) Northern Territory of Australia v Disciplinary Appeal Board of the Northern Territory & Anor [2003] NTSC 120 Szuster v Hest Aust. Ltd [2000] SADC 2 White v The Board of Trustees, State Public Sector Superannuation Scheme (21 February 1997, No 3191 of 1996)

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