60 I mention this detail because it would appear that Hodgson J's comments about full time work were obiter. His Honour said at 77,999:
"I do think that employment must be given a reasonable construction; and I think employment should be limited to full-time employment, and to employment which is reasonably open to the member. That is, I think, the employment must be employment which the member is capable of undertaking, having regard to his education, experience and training, or at least employment which he could become capable of undertaking with further training which it would be reasonable for him to undertake."
61 His Honour went on to consider how the insurer had dealt with the medical evidence and concluded that it had not acted reasonably. The case has, on that issue, been cited on a number of occasions and followed most notably in Beverley.
62 In Szuster, on the construction point, Judge Herriman distinguished Chammas. In Camilleri, I followed Hodgson J's approach on constructyion, although one factor which was present there was the existence of a reference, in a clause dealing with temporary disability, to part time work, which was absent in the total disability clause.
63 I do not think that Beverley can be seen as determinative of the issue of construction in question here (the wording being different and including a reference to "full time" in the context of domestic duties: see at 336 ([27]-[29])), nor does the decision refer to the view of construction expressed by Hodgson J in Chammas: see Beverley at 336-337 ([30]-[31]).
64 In Alcoa, R D Nicholson J, whilst referring "to the inconclusive nature of authority and the way in which such clauses have been seen to operate in their factual setting" (at 153), did not accept the insurer's argument that the Superannuation Complaints Tribunal had erred in not regarding an ability to engage in part time work as inconsistent with total and permanent disablement, although he focused on the importance of the context of the factual circumstances of the worker: see at 152-153 ([66]-[67]).
65 Subsequently, in Halloran, Brereton J, considering the words "ever to engage in", cited Chammas with approval and held that the words connoted full time work. I would add as a case relevant to this issue Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173, being a case which concerned a test of employment in "any remunerative occupation"; and also possibly, on a related point, Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 at [64].
66 There are a number of reasons that undercut the argument that the words "unable ever to engage in or work for reward in any occupation or work…" must necessarily be construed as connoting full time work:
(1) Chammas was concerned with the words "incapacitated for further employment";
(2) as I have noted, Hodgson J's comments appear to have been obiter;
(3) a different approach was taken in Szuster ;
(4) in Camilleri , there was another clause dealing with temporary disability which did refer to part time work;
(5) in Alcoa (and Nile ), emphasis was placed on the context, and here the plaintiff was employed in a part time capacity in June 2003;
(6) the word "any" qualifies "work", as well as "occupation";
(7) the phrase being defined is " total and permanent disability"; and
(8) it has been said that cases construing one form of words in a policy should not be seen as a precedent for construing another form of words in another policy, unless the words are "identical or differ only in immaterial details": see E J MacGillivray et al, MacGillivray on Insurance Law (9th ed, 1997), Sweet & Maxwell, London at paragraph 11-4, citing In Re Coleman's Depositories Limited and Life and Health Assurance Association [1907] 2 KB 798 and Lawrence v The Accidental Insurance Company (Limited) (1881) 7 QBD 216 at 220.
67 In my view, as at June 2003, whilst there was a prospect that the words "full time" would have been read into the TPD clause, it is not clear that they would have been. I think that even now it is arguable that the words "full time" should not be read into the clause generally or in its application to the plaintiff. I do not need to determine whether they ought to be, because of the conclusion I have reached on the other issues in this case.
Causation
68 There are two limbs to the issue of causation. The first is that the plaintiff has to establish that the words "full time" ought to be read into the Hannover TPD clause, and the second is that he otherwise would have been able to recover under the CommInsure policy had that policy incorporated the Hannover TPD wording (or, alternatively, the plaintiff must establish that if the Hannover policy had remained on foot, he would have recovered under that). Given that the plaintiff does not criticise the trustee for any reason other than the failure to maintain the Hannover TPD wording, and because he claims that the Hannover policy terms would have to be read down in other respects, the more appropriate test is to consider whether, apart from the inclusion of the words "part time" in the CommInsure TPD clause, the plaintiff has established that he would recover from CommInsure.
69 We know that CommInsure has declined to indemnify the plaintiff. That refusal is based on these matters:
(1) the failure to satisfy CommInsure that the plaintiff was incapacitated in the long term, and CommInsure's belief that remedial treatment would remove any impediment to a return to work (full time work, it would appear);
(2) the fact that the plaintiff can work on a part time basis; and
(3) the fact that the plaintiff does not meet other criteria specified in the clause.
70 I shall assume in favour of the plaintiff that he cannot work full time. This was conceded by the defendant: see paragraph 4 of the defendant's submissions of 25 March 2010. I shall assume in favour of the plaintiff, for the purpose of considering this issue, that had the CommInsure policy adopted the Hannover wording, (2) above would not present an obstacle.
71 This then brings me to the following requirements of the CommInsure policy. Cover under that policy is expressed to end when the plaintiff ceased to be an employee of the Bank, or within 30 days thereafter: see clauses 5(e) and 10 of the CommInsure policy.
72 To qualify for the TPD benefit, the plaintiff has to have been absent from work for six months due to the injury or disablement. The plaintiff was not absent for any consecutive period of six months prior to his departure on 25 August 2003. He had been working full time between 5 October 2000 and November 2002, and part time from November 2002 to 25 August 2003. He accepted redundancy on 25 August 2003. He subsequently sought work in various companies, and says that he did so on the basis that had he been offered a position, he would have accepted it and resumed work.
73 There may be situations in which an employer, by terminating an injured employee's position, is acting unfairly to that employee, indeed effectively depriving an employee injured at work of a benefit which would have accrued, because had his employment not been terminated, he would have qualified for the benefit at the end of six months. Not only did the bank not dismiss the plaintiff, it had employed him for more than two years since his injury, and he had worked both full time and part time in that period. His applications for work after he accepted redundancy indicate that he saw himself as fit for part time work (at the least). There is, in one sense, an inconsistency between the acceptance of redundancy and the assertion of total and permanent disability. The plaintiff ceased to be a member of the fund on 25 August 2003. He did so because he accepted redundancy, not because he was unable to work.
74 It follows, in my view, that the plaintiff would not have recovered under the CommInsure policy even had it not contained the words "part time", and that the plaintiff has failed to make out his case against the trustee on this basis as well.