73 The part-time work which the insurer submitted the plaintiff was capable of doing was never adumbrated, apart from reference to the duties and limitations specified in the rehabilitation programmes. I find it significant that there was no evidence which identified any form of work which the plaintiff would be capable of performing free of pain, and without the need to take frequent breaks for relief of pain and changes in posture. According to the evidence, the plaintiff's condition is, and has been continuously since 11 December 1997, such that he is possibly able to perform light tasks which allow him to relieve pain by lying down, sitting, standing, moving about, and changing posture regularly during a shift, and does not involve bending, lifting or twisting. As a matter of reality and common sense, it is difficult to envisage the probability of the existence of paid employment for work of that kind. On any view, such work would not be of the kind that the plaintiff is reasonably capable of performing by reason of education, training or experience."
40 Three propositions emerge from what was said by Nicholas J and from other judicial pronouncements as to the interpretation of the criterion. The terms of the criterion must be stringently observed. The test must be applied by reference to the insured's existing training, education and experience. And a realistic and common sense approach must be taken to the assessment of whether or not the insured meets the criterion. Whilst Nicholas J was speaking in a context where the Court was to make the assessment, naturally, the proper meaning of the criterion as it should be applied by the insurer is the same.
The plaintiff's contentions
41 The grounds on which the plaintiff claims that the insurer breached its duty to the plaintiff are set out as follows in the particulars appended to paragraph 24 of the second further amended statement of claim ("the statement of claim"):
"b The second defendant failed to afford the plaintiff any reasonable opportunity to respond to adverse medical reports, including the reports of Drs Lewin and Greenberg.
c The second defendant failed to obtain as a matter of fairness, comments on the reports of Drs Lewin and Greenberg from Dr Hadfield and Dr Robertson.
d When qualifying Dr Lewin, the second defendant failed to provide to Dr Lewin relevant material including the affidavit of the plaintiff sworn 13 September 2004 and reports of Dr Andrew Robertson dated 19 May 2003 and 27 September 2004.
e The second defendant failed to further and adequately investigate the matter between receipt of Dr Lewin's report of 15 September 2005 and declining the claim on 29 November 2005.
……
g The second defendant failed to carry out a real and genuine consideration of all the evidence.
……
i The second defendant failed to act reasonably in considering and determining what its opinion was by simply relying upon the opinion of Dr Lewin.
j The second defendant made a misrepresentation in a letter dated 14 October 2005 that it had forwarded a copy of the report of Dr Lewin to Dr Hadfield for comment."
The insurer's contentions
42 The insurer contended that there was no lack of opportunity for the plaintiff to present material in answer to the adverse material the insurer relied on. Citistreet's letter to the plaintiff's solicitor dated 20 October 2005 drew attention to the adverse reports and specified a period within which the plaintiff was to respond. The insurer submitted that it was not itself obliged to obtain comments on the adverse medical reports: see Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 per Bryson J at [88].
43 The insurer submitted that it was not required under the obligation of fair dealing to furnish Dr Lewin with all material relevant to the plaintiff's claim: an insurer's doctor ought give an independent opinion based upon the history elicited from the claimant and examination of him.
44 The insurer submitted that the misstatement that a copy of Dr Lewin's report had been forwarded to Dr Hadfield for comment did not mislead the plaintiff or result in unfairness to him.
45 The insurer submitted that it is clear that it had regard to all the relevant evidence. Counsel referred to Dr Yvonne Greenberg's file review of 16 September 2005; the insurer's CMO's review of 29 September 2005; Anne Newell's initial claim assessment; and Dr Yvonne Greenberg's comments of 14 October 2005 on Dr Lewin's report. He also referred to statements contained in the final claim.
Conclusion: The insurer's decision
46 The breaches of duty by the insurer contended for by the plaintiff fall into two groups for consideration.
47 The first group, being particulars b, c, e, and j appended to paragraph 24 of the statement of claim, deal with the insurer's obligation to afford the insured a reasonable opportunity for response and the insurer's obligation itself to investigate the matter.
48 So far as concerns the affording of an opportunity to comment upon or answer Dr Lewin and Dr Greenberg's views, the conduct of the insurer in this regard was far from satisfactory. On the one hand, it would seem that it was thought appropriate for an invitation to be issued direct to Dr Hadfield to respond. On the other hand, it was not thought appropriate to make any such invitation to Dr Robertson, who was the specialist psychiatrist most relied upon by the plaintiff to support his case. Furthermore, the supposed invitation to Dr Hadfield to comment was non existent. When Dr Lewin's report was in fact sent to Dr Hadfield, it was not said to be for him to comment on, but was said only to be for his records. There was a misleading element in the plaintiff being informed through his solicitor that Dr Hadfield had been asked to comment.
49 Despite these unsatisfactory features, I do not think that the plaintiff can in the circumstances rely on a failure to be given an opportunity to comment on the adverse material. It must be concluded, in the absence of denial, that the plaintiff's solicitor had received Dr Lewin's report. And he was certainly sent Dr Yvonne Greenberg's report. He was given time to respond. He simply did not do so. His failure to do so is unexplained. He could himself have obtained reports from Dr Hadfield and Dr Andrew Robertson answering the insurer's material. Despite the misleading statements about the direct invitation to Dr Hadfield to respond, there is no evidence that this misleading statement was relied upon by the plaintiff to his detriment. There is simply silence concerning the non response. In these circumstances, I do not think it can be said that there is a just complaint that the plaintiff was not invited to respond.
50 As to the allegation that the insurer itself failed to make further investigations after the receipt of Dr Lewin and Dr Yvonne Greenberg's reports, this is no doubt correct, in view of the lack of invitation to Dr Hadfield to respond. In some circumstances, it may be deemed that an insurer is obliged to conduct further investigation. However, this is a case where the plaintiff was dealing with the trustee and the insurer through a solicitor and had, indeed, already by that solicitor brought proceedings in the Supreme Court. The insurer had on a number of occasions been furnished with material, including medical reports, in support of the plaintiff's claim, emanating from that solicitor. In those circumstances, it does not seem to me that the insurer was obliged itself to gather further medical material, rather than issuing an invitation to the plaintiff's solicitor to respond to the material that the insurer had obtained. There is therefore nothing in the first group of complaints that would vitiate the insurer's decision.
51 The other group of alleged breaches consists of particulars d, g and i appended to paragraph 24 of the statement of claim. As to particular d, on the evidence I conclude that the insurer did not furnish the affidavit and the reports of Dr Andrew Robertson mentioned in that particular to Dr Lewin. There is no evidence that the insurer in fact had the affidavit at the relevant time. But I conclude that it did have the relevant reports of Dr Robertson, which it should have forwarded to Dr Lewin. This was a deficiency. However, it did furnish other reports of Dr Robertson. I do not accept the insurer's contention that it was not under a duty to furnish its medical expert with medical opinions in its possession supporting the plaintiff's case.
52 But at the heart of this matter are the complaints made by the plaintiff in particulars g and i about the lack of a real and genuine consideration of all the evidence and the rubber stamping, in effect, of the opinion of Dr Lewin. These complaints are exacerbated by the fact that Dr Lewin did not even have the correct question posed for his opinion.
53 When one examines the process of decision as it is set out in paragraphs [24] to [34] above, there is little reference to any of the material except the adverse opinions of Dr Lewin and Dr Yvonne Greenberg. The final claim summary is the document by reference to which it appears on the evidence that the final decision was made, although it does not appear by whom. There is a separate section at the head of the final claim summary that states that, when considering the claim, all the evidence that was available was considered together with all the elements of the definition. However, virtually everything else in the evidence tends to characterise this statement as lip service to correctness. Dr Yvonne Greenberg in her earlier file review, made before Dr Lewin's report was received, referred passingly to reports of Dr Andrew Robertson. But the only material cited by Dr Yvonne Greenberg to support her later opinion is Dr Lewin's report. Again, the CMO of the insurer in his claim assessment summary refers only to Dr Lewin's report and recommends declining the claim, whilst conceding that, "in future, we may have to get further independent opinion if claimant's solicitor argues with our decision". The main body of the final claim summary is taken virtually word for word from Dr Lewin's report.
54 The insurer referred in its submissions to the fact that some of its medical evidence, particularly Dr Lewin's, referred to medical evidence of the plaintiff. But there are only two places where the insurer's documentation created in the decision making process refers to some of the plaintiff's medical material. There are the passing references to reports of Dr Robertson in Dr Yvonne Greenberg's earlier review, which were noted above. And in the initial claim assessment, views of Dr Hadfield and Dr Robertson are set out, but only briefly and in far less detail than the views of Dr Lewin and the insurer's CMO. It is not clear whether and to what extent, if at all, even these brief extracts were taken into account when the final decision was made, by whomever made it on the insurer's behalf. No evidence has been called by the insurer to amplify the documentation as to the decision that is in evidence or what can be gleaned from it in relation to the decision making process.
55 The situation is rendered all the more unsatisfactory by the fact that Dr Lewin was not asked to express a view as to whether the policy criterion (which it would seem was not communicated to him) had been met. The CMO and Dr Yvonne Greenberg's views were repetitive of and dependent upon Dr Lewin's views. The documents leading to the decision indicate a very one sided consideration by the insurer of the available material. And that material did not even address the correct criterion. There is no evidence that suggests that the question of incapacity was considered in any realistic way by reference to the plaintiff's education, training and experience, or that there was any consideration of what work might be available to the plaintiff, whether he could do it and whether he was realistically likely to obtain it.
56 In my view, the insurer's consideration which led to the claim being declined was seriously flawed and was in breach of the insurer's duty to the plaintiff to consider and determine the correct question, to have due regard for the interests of the plaintiff, and to act reasonably in considering and determining what its opinion was. There will therefore be a declaration that the insurer's determination is void.
Conclusion: Determination whether the plaintiff met the policy criterion
57 There is no doubt on the authorities that the Court may proceed to make a determination of the insured's claim, if it strikes down a determination of it by the insurer. The claim is to be determined by the Court as at the date of the insurer's determination. See Edwards; Chammas; McArthur v Mercantile Mutual Insurance Company Limited [2002] QdR 197; Sayseng [2003] per Bryson J at [82].
58 For the purpose of making this determination, I have before me the affidavit evidence of the plaintiff, on which he was not cross examined. I have before me the medical evidence previously referred to in this judgment. The doctors have not been cross examined before me. I have considered the whole of the evidence. On considering the whole body of medical evidence, I prefer the evidence on behalf of the plaintiff, and particularly the evidence of Dr Hadfield and Dr Andrew Robertson to the medical evidence on behalf of the defendants. The defendants' medical evidence is in substance the evidence of Dr Lewin, because Dr Yvonne Greenberg and the CMO of the insurer did not see the plaintiff and, in effect, repeat Dr Lewin's views, without giving any reasons for preferring them to those of the plaintiff's doctors, to any extent that they really considered the latter. An important reason for my preference of Dr Hadfield and Dr Andrew Robertson's views is that those doctors saw the plaintiff on many occasions over a period of years, whereas Dr Lewin saw him on one occasion only. Dr Hadfield had seen the plaintiff on 62 occasions up to 2004. Dr Robertson, like Dr Lewin, is a specialist psychiatrist. Whilst Dr Hadfield is a general practitioner, he cared for the plaintiff over many years and his reports are well and cogently written.
59 To turn to particular matters, I find that the plaintiff had suffered and was as at November 2005 suffering from a major depressive illness. This is the opinion of Dr Robertson and Dr Hadfield. It is also the opinion of the other medical experts whose evidence the plaintiff has adduced. Furthermore, it seems to me, from the serious and persisting consequences of the plaintiff's depression, that it is more likely that his depressive illness should be regarded as major or severe, rather than as some comparatively minor and perhaps passing condition, as Dr Lewin regarded it.
60 Dr Lewin appears to have taken the view that, if only the plaintiff would cease to drink and would adhere to some regime of psychiatric treatment, it is likely that he would quickly recover. Various regimes of treatment have been recommended to or tried by the plaintiff in the past, but he has not adhered to them. Those who have treated him have regarded him, certainly at times, as well motivated to return to work if he could. I draw the conclusion that his inability or failure to adhere to regimes of treatment is less likely to be as a result of some wayward attitude on his part, than as being itself a result of the depressive symptoms from which, on all accounts, he suffers.
61 The medical evidence must be read as a continuum and as a whole and I have done so. The fact of the matter, on the plaintiff's medical evidence, is that his depressive condition has become not better, but worse, over the years. For some years, Dr Robertson in particular has been saying that chronicity is itself an indicator of a poor prognosis: "chronicity breeds chronicity", as he once put it. The plaintiff had as at November 2005 been unemployed for something approaching a quarter of his working life. Whilst not forgetting that they must be read in context, I advert to Dr Andrew Robertson's view in 2003 that:
"With regard to the issue of permanent disability, and the likelihood that Mr Oberlechner will ever return to the type of employment which he was doing in the latter part of 1999, I think that is extremely unlikely that he will ever be able to do work of this kind again. I consider that, in this regard, he is permanently disabled."