Panos v FSS Trustee Corporation - [2015] NSWSC 1217 - NSWSC 2015 case summary — Zoe

NSWNSWSC

Panos v FSS Trustee Corporation

[2015] NSWSC 1217

Supreme Court of NSW|2015-02-11|Before: Robb J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-02-11

Before

Robb J

Catchwords

(2013) 83 NSWLR 246 Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214

Source

Original judgment source is linked above.

Catchwords

(2013) 83 NSWLR 246 Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214

Judgment (83 paragraphs)

[1]

Introduction

The primary issue in these proceedings is whether Mr Peter Panos, the plaintiff, is entitled to an order that the second defendant, MetLife Insurance Ltd (the "Insurer"), pay to the first defendant, FSS Trustee Corporation (the "Trustee"), the amount of a benefit for total and permanent disability ("TPD") to which Mr Panos claims to be entitled, under an insurance policy (the "Policy") issued by the Insurer to the Trustee, in respect of the First State Superannuation Scheme (the "Fund"), of which Mr Panos was a member and the Trustee was trustee.
Mr Panos has pursued his claim directly against the Insurer. He has made a number of claims for relief against the Trustee, but the Trustee has filed a submitting appearance, save as to costs. It appears to be accepted by the parties that, if the court makes the order sought by Mr Panos, and the amount of the benefit is paid by the Insurer to the Trustee, the Trustee will in due course pay that amount to Mr Panos.
The parties have agreed that the amount of the TPD benefit that is payable, if Mr Panos succeeds, is $140,700.
In the circumstances that will be recounted in more detail below, Mr Panos claims that he suffered injuries and disabilities that caused him to be totally and permanently disabled within the meaning of the deed that constituted the Fund, and the Policy. He made a claim on the Trustee, which in turn made a claim on the Insurer, as the Trustee had insured its obligation to pay benefits to members of the Fund, and the amount of the benefit that the Trustee is actually required to pay to a member is limited to the amount recoverable by the Trustee under the Policy. The Insurer eventually denied that it was liable to pay the TPD benefit that Mr Panos claimed. The circumstances in which the denial occurred were complicated, and will be considered more fully below.

[2]

The Fund

The trust deed and the annexed rules that are in evidence appear to incorporate amendments to the rules made up to 29 June 2011. They are undated and unexecuted. The parties accepted that the document has governed the operation of the Fund at relevant times. The rules, which contain the provisions relevant to the present dispute, comprise annexure A to the trust deed.
The Fund is a regulated superannuation fund under the Superannuation Industry (Supervision) Act 1993 (Cth): r 2.2.
Rule 11.1 authorises the Trustee to acquire insurance policies to provide insured benefits for members. "Insured benefit" is defined in r 23.1 to mean "in respect of a member, the amount payable to the Trustee from an insurance policy in respect of the death or disability of that member".
Under r 11.2: The insured benefit of a member is: (a) limited to the extent that the Trustee is able to affect cover under an insurance policy; (b) only payable to the extent that the Trustee receives payment from the insurer under an insurance policy.
Rule 5.2, in Section 2, Division 2C, provides that, if the Trustee becomes entitled to a total disability benefit under any policy of insurance effected in respect of a member, the Trustee will pay a benefit from the Fund in accordance with the terms of that policy (subject to a qualification not presently relevant).
In the same section and division of the rules, r 10 contains a definition of "disability" in two parts. The first part is: "(a) the same meaning as that term has for the time being and from time to time in any applicable policy of insurance". The second part of the definition applies: "(b) in any other case…" and so does not appear to be relevant to the present dispute. "Total disability" is defined as having: "the same meaning as that term (or any equivalent term in the opinion of the Trustee) has for the time being and from time to time in any applicable policy of insurance".
In the present case, there does not appear to be any material difference between Mr Panos' entitlement to receive a TPD benefit from the Fund, and the Trustee's right to receive an equivalent benefit under the Policy. Furthermore, the parties did not identify any terms of the rules that affect the amount that the Trustee is required to pay to Mr Panos, if it receives payment of a TPD benefit from the Insurer in respect of his claim. If there are such terms, then the parties have effectively left their application to be dealt with after judgment in this case as between the relevant parties.

[3]

The Policy

The Policy wording in the definition section contains a definition of "Totally and Permanently Disablement/Disabled (TPD)", which materially provides: (a) When a Covered Person is Employed… for at least the Minimum Hours, if one of the following (i) to (iv) applies:… (ii) the Covered Person having been absent from their Occupation through Injury or Illness for 6 consecutive months and having provided proof to the satisfaction of us that the Covered Person has become incapacitated to such an extent as to render the Covered Person unlikely ever to engage in or work for reward in any occupation or work for which he or she is reasonably qualified by reason of education, training or experience".
No party suggested that Mr Panos did not satisfy the criteria required for any of the defined terms in this definition, so the question is whether it was, in fact, satisfied.
The ordinary meaning of the wording used would suggest that the Trustee was required to provide proof to the Insurer that Mr Panos had become incapacitated to the relevant extent as at the end of the period of 6 consecutive months' absence from employment.
"Illness" is defined as meaning "sickness disease or disorder", and "Injury" is defined as meaning "bodily injury which is caused solely and directly by external, violent and accidental means and is independent of any other cause". It was not suggested by the Insurer that the disabilities from which Mr Panos suffers fall outside one or other of these two definitions.
"Total and Permanent Disablement Benefit" is defined as meaning the benefit payable under cl7. Under that clause: When a Covered Person…is eligible for Total and Permanent Disablement… subject to the provisions of this Policy and our agreement to the eligibility for a Benefit, we will pay to the Policyowner the Insured Cover in respect of that Covered Person as soon as practical after our required claims procedures and documentation requirements have been satisfied.
The "Insured Cover" is stated in the first schedule. The amount is not in issue in these proceedings.
The requirement that the Insurer pay a benefit to the Trustee is therefore subject to the Insurer making two determinations. For there to be a TPD circumstance, proof of incapacitation to the relevant extent must be provided to the satisfaction of the Insurer, for the purpose of the definition of TPD. Secondly, the obligation to pay the benefit under cl 7 arises if the Insurer agrees that the Trustee is eligible to receive the benefit. The latter determination by the Insurer may introduce the application of any number of terms of the Policy, other than satisfaction of the definition of TPD, that must be established before a benefit is payable. In the present case, the only determination by the Insurer that is relevant is the one that is required by the definition of TPD.

[6]

Mr Panos' statement of claim

Mr Panos filed a statement of claim on 19 April 2013. Materially, in the statement of the relief claimed, Mr Panos claimed a declaration that the Trustee and the Insurer had constructively denied his claim for TPD benefits (par 4), a declaration that he was totally and permanently disabled (par 5) and an order that the Insurer pay to the Trustee in trust for Mr Panos the defined benefit of $149,100 together with interest.
In the allegations of fact pleaded by Mr Panos, he alleged the factual circumstances that he said gave rise to his entitlement to the TPD benefit in pars 1 to 22, and then alleged in par 23 that he lodged his claim for the TPD benefit with the Trustee on or about 21 March 2012. He alleged in par 24: "To date the Defendants have refused to make a decision on the Plaintiff's claim". He then alleged in par 25 that he had elected to treat the defendants' refusal to make a decision as constructive denial of his claim. Having done that, in pars 27 to 35, Mr Panos alleged breaches by the Trustee of various general law and statutory duties. The only further allegation that Mr Panos made against the Insurer was that the Insurer had acted in breach of its statutory and general law duties in refusing to accept Mr Panos' claim for TPD benefits (par 36), for the reasons given in the particulars in par 37, by reason of which Mr Panos had suffered loss (par 38).
Relevantly, the claim made by Mr Panos in his statement of claim was primarily one of constructive denial by both defendants of his claim for a TPD benefit.
Mr Panos did not positively plead in his statement of claim that he was absent from his occupation through injury for 6 consecutive months from an identified time, unless the allegation be found in pars 17, 18, 21 and 22 of the statement of claim. He alleged in par 17 that he suffered certain injuries on 26 May 2011, and in par 18 that, after that accident, Mr Panos was not able to return to his job and has not carried out regular employment since 26 May 2011. That could be intended to identify 26 May 2011 as the commencement of the absence from Mr Panos' occupation. That reading of the pleading is supported by noting that Mr Panos alleged in par 21 that he worked in a nursing home between October 2012 and 19 January 2013, but in par 22 he claimed that the work carried out in the nursing home was not regular, consistent or sustainable work and was in fact a failed rehabilitation attempt.
To avoid unnecessary confusion, I note that in the claim, Mr Panos referred to 18 March 2010 as being the date he suffered his disability (which was the date Mr Panos was involved in his first motor vehicle accident) but in his statement of claim he alleged that he suffered injuries on 26 May 2011 (which was the date he was involved in a second motor vehicle accident).
It may have been thought reasonably obvious that Mr Panos alleged that the period of absence from his occupation commenced on 26 May 2011 were it not for the fact that, in his written submissions, he put an alternative case that the period commenced on 19 January 2013.
The Insurer responded to these alternative submissions by submitting that the only relevant date was 26 May 2011.

[11]

The Insurer's 'procedural fairness' letter

On 5 March 2014, the Insurer wrote a letter to Mr Panos' solicitor. Relevantly, the letter stated: We refer to the above TPD claim and previous correspondence. As you may be aware, we have sought access to material produced under subpoena in Supreme Court proceedings 2013/121809 for the purpose of our assessment of the claim. In our view, the information produced under subpoena is likely to be highly relevant to the consideration of whether or not you qualify for payment of a TPD benefit. We regret that you have refused your consent (via your solicitor) to allow us to have access to the material for the purpose of our assessment of the claim. Accordingly, we are moving towards a determination of your claim based on the material we hold. As part of that process, and in the interests of procedural fairness in accordance with Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, we hereby provide notice of all the evidence we have obtained in the assessment of the TPD claim and invite you to make any further submissions which you consider necessary. You should also provide us with any additional evidence that you would like us to consider in forming our opinion regarding the TPD claim. We advise that your claim for a TPD benefit will be assessed under the following definition: [definition set out] The material we will consider in making our determination with respect to your claim includes the material you have forwarded to your superannuation trustee (FTC Trustee Corporation) as well as the material we have obtained as listed in the following list of documents. We particularly draw your attention to the material in this list which may be adverse to your claim: [127 documents listed] We draw your attention to those documents marked with an asterisk; which we note were provided to your solicitor on 13 September 2013. Accordingly, we trust that you and/or your solicitors already hold copies of these documents and as such we have not enclosed further copies. Along with any written submissions, we invite you to submit any additional medical information, including medical records, or other evidence that you believe will assist in the assessment of your claim for total and permanent disability benefit. Please note that your duty of good faith and fair dealing requires you to provide us with information that supports your claim and material which is adverse to your claim [footnote reference to Mabbett v Watson Wyatt Superannuation & Anor [2008] NSWSC 365]. As almost all of this material has been in the possession of your solicitor since 13 September 2013, we request that you provide us with any response and any further documents by 5pm on 7 March 2014. Our decision on your claim will be based on the material you have sent to us, the material in the list of documents, and any submissions or further documents you provided in response to this letter which we received by 5pm on 7 March 2014. We look forward to hearing from you…
An asterisk was placed beside all of the documents listed except the last three, which were described as AHC Investigation report dated 4 September 2013, report of Dr Kana dated 16 January 2014 and letter of instructions dated 25 November 2013, and affidavit of Peter Panos dated 22 January 2014.

[13]

The first declinature dated 17 March 2014

On 17 March 2014, the Insurer delivered a letter to Mr Panos in which it advised that it had declined his claim for the TPD benefit, and gave its reasons for that denial. It will be necessary to examine those reasons in some detail in due course. For the purposes of the proceedings the parties referred to this letter as "the first declinature".
It will be necessary to set out the first declinature: We refer to the above and the member's claim for payment of a benefit for Total and Permanent Disablement. Procedural fairness was conducted by way of MetLife's correspondence of 5 March 2014 which was forwarded to the fund and to the member's solicitor. After consideration and assessment of all evidence on file, we wish to advise that the claim for payment of a benefit for Total and Permanent Disablement with respect to the member is declined. MetLife's reasons for this decision are outlined below. MetLife received the claim from FTC on 13 September 2014. Included with the initial claim documents, was the claimant's claim form ('Statement of claim') that is signed and dated 13 January 2012. Within the body of that document the claimant advised that he had ceased work on 26 May 2011 due to injuries to his back, neck, shoulder, teeth, depression and insomnia. Reference was also made to a motor vehicle accident the member was involved in on his way to work. In the assessment of the claim, evidence was elicited from, but not limited to, the claimant's treating health professionals, insurers with whom the claimant had made other claims, independent medical specialists and investigations commenced at the instruction of MetLife. BACKGROUND The member is a 43-year-old former Assistant in Nursing. He commenced employment with South Eastern Sydney Illawarra Area Health Service (SESIAHS) on 21 August 2006 and became a member of the fund on 19 November 2007. The member sustained a number of injuries during the period 19 November 2007 to 30 November 2010, including: • A back injury sustained while lifting a box of IV fluids on 25 January 2010; • Injuries as a result of a motor vehicle accident on 18 March 2010. During the course of 2010 the member had periods of time off work as a result of his injuries as well as returning to work on pre-injury or suitable duties. After being certified by his GP, Dr Kana, as fit to return to pre-injury duties on 20 December 2010, the member was involved in a motor vehicle accident on 24 December 2012, resulting in further time away from work to recover. However, he was certified fit to perform suitable duties on 10 January 2011. The member claims to have sustained further injuries after tripping over a wheelchair on 20 May 2011 and being involved in a further motor vehicle accident on 26 May 2011. He also underwent an operation to his left shoulder on 2 September 2011. The plaintiff's employment with SESIAHS was terminated on 15 December 2011 as no suitable duties were available to the member given his reported restrictions. Furthermore, due to a driving restriction, the member claimed to be incapable of driving to work from his home in Fairy Meadow to his place of work at The Sutherland Hospital in Caringbah. Dr Kana continued to certify the member fit for suitable duties and, on 7 February 2012, fit for pre-injury duties. However, the member claimed to have reinjured his shoulder while putting his bins out on 22 February 2012 and, as a result, Dr Kana downgraded his certificate to fit for suitable duties. The member commenced a 6 week returned to work trial in September 2012 as an assistant in nursing at the Hillside Figtree Nursing Home. After successfully completing the return to work trial, the member gained a casual position with Hillside Figtree where he continued working until he sustained a further injury to his shoulder and back on 30 May 2013 while assisting a patient. The member's employment with Hillside Figtree ceased on 7 June 2013. [Definition of TPD inserted, plus a term of the Policy that is no longer relevant] OUR DECISION [Reason for declining claim that the Insurer has abandoned] Is the Member Totally and Permanently Disabled? In relation to the question of whether the member meets the requirements in the TPD definition, we make the following comments: Education, Training and Experience In order to satisfy the TPD definition we require proof to our satisfaction that the member has become incapacitated to such an extent as to render him unlikely ever to engage in work for reward in any occupation or work for which he is reasonably qualified by his education, training and experience. We note that the member left school mid-way through year 9 at the age of 17. He subsequently obtained work in a range of occupations, including as a process worker, as a security guard at the Reef Casino in Cairns, as a storeman for Woolworths as a bar worker and supervisor at the Hellenic club in addition to his experience as an assistant in nursing. In terms of vocational training, the member holds an Assistant in Nursing certificate, Certificate III in Aged Care Work which he obtained in 2007 and an OH&S certificate which he obtained in 2003. He completed a 'Concepts in Palliative Care' course in 2006 and also holds a forklift license, a crane licence and qualifications in the responsible service of alcohol and responsible conduct of gambling. We note that the member is currently 43 years of age with an approximate working life expectancy of 24 years. Dr McBurnie As you are aware, Dr McBurnie, who is an occupation physician, reviewed the medical evidence with which we have been provided and reported on 31 December 2012 that she considered that the member was fit for full hours in his pre-injury role as an assistant in nursing. She noted that the member had an underlying degenerative condition affecting his cervical and lumbar spine and the condition affecting his left shoulder. She agreed with Dr Kana that he had a permanent lifting restriction of 20 kg, however, in her opinion this restriction did not prevent him from undertaking a variety of duties as an assistant in nursing. Overall Dr McBurnie considered the member was fit to perform as an assistant in nursing at an aged care facility and to undertake a variety of office-based work and that the member had the necessary level of qualifications and experience to undertake such work in a full-time capacity. Dr Kana As noted above, Dr Kana completed a medical statement on 3 February 2011 which the member lodged in support of his claim. However, it is our view that Dr Kana's medical statement does not support the member as being totally and permanently disabled. In particular, we note that Dr Kana states that the member has been working on a partial or restricted basis since October 2010. Furthermore, in response to the question "when was the patient able to return on a full-time basis?" Dr Kana only responded "not yet". Our view that Dr Kana does not support the member being totally and permanently disabled is also supported by Kana's WorkCover medical certificates in which he certified the member fit to perform suitable duties at full hours on 7 March 2012, 10 April 2012, 4 May 2012, 31 May 2012, 7 June 2012, 22 June 2012, 4 August 2012 and 10 September 2012. The only restriction Dr Kana imposed was lifting more than 20-25 kgs (which Dr McBurnie did not consider was a requirement of his pre-injury work) and a driving restriction of up to 30-40 minutes. We asked Dr Kana to comment on the vocational options identified by Ms Petersen and Ms Paterson in their vocational and functional assessment report (discussed below). Although presented with all of the roles identified by Ms Petersen and Mrs Paterson, Dr Kana only discounted the occupations of assistant in nursing and Security Officer in his report dated 16 January 2014. He was silent as to the balance of the roles. Dr Kana also noted that the plaintiff was restricted from performing lifting or "work" until a further MRI had been performed on his lower back. Unfortunately Dr Kana did not elaborate on what he intended by using the word "work". Dr Giblin We acknowledge receipt of Dr Giblin's report stated 7 May 2012 and 15 October 2012. In his report dated 7 May 2012, Dr Giblin noted the member had full range of motion in his right shoulder and some restriction in his left shoulder which Dr Giblin considered amounted to 8% whole person impairment. He also described the member as being strongly built with well-formed muscles and calluses on his hands. In his October 2012 report, Dr Giblin described the member as being overweight, unfit and undereducated. On account of these characteristics and the member's radiological findings, Dr Giblin considered that the member would never return to work within his education, training or experience. Dr Giblin's comments are noted, but are considered in light of Dr McBurnie's comments in her report of December 2012 where she found the member to have well developed musculature which indicated regular gym attendance and persistent training and his recent weight loss. It is also noted that by this stage, the member was in fact working as an assistant in nursing with Hillside Figtree and Dr McBurnie considered that not only was he fit to perform his role, but he was also capable of performing office-based duties within his education, training and experience. We are aware that the member has served further reports of Dr Giblin in the proceedings, however, he did so after consent was requested for access to subpoenaed documents for the purposes of determining the claim which you refuse to provide. It is not apparent to us whether service of the further Dr Giblin report was solely for the purposes of the proceedings or whether the member intended those reports also to be considered by us in reaching our decision in relation to the claim. If you or the member wish for us to review our decision in light of the further reports or any other information, please let us know and we will conduct a review. Work at Hillside Figtree We note that the member in fact completed a return to work trial at Hillside Figtree in September 2012. Once that work trial had been successfully completed, the member was offered a casual position from 2 October 2012. We also note that during the period he was working for Hillside Figtree as an assistant in nursing, he undertook and completed a security course at Granville between February and May 2013. We note that the member's employment with Hillside Figtree was terminated at the member's request on 7 June 2013. Dr Diwan In his report dated 16 June 2010, Dr Diwan noted that radiology reports did not show any evidence of neural compression at any level. He considered in his report of 6 October 2010 that the member was unable to cope with his work at Sutherland Hospital due to the long distance he had to travel to work and repeated twisting and turning. However, he considered that the member was likely to have a good outcome if he changed his workplace or his role. We note that Dr Diwan discharged the member from his surgical care and referred the member for motor relearning with Dr Ho at Special Spinal Rehab. We understand that Dr Diwan has provided a further report dated 17 February 2011 in evidence in the proceedings, however, we have regrettably not been able to consider that report as the member has refused to consent to us having access to it for the purposes of our assessment. Right Knee Injury The reports of Drs Patrick, Nagamori, Gray and Machart addressed the question of the member's right knee injury in 2004. We note there is evidence of an underlying degenerative condition, however, we also note the following: • The member makes no mention of any knee condition in the claim documents provided to us. We refer to the claim forms dated 13 January 2012 and accompanying medical statement of Dr Kana dated 3 February 2011 dated 3 February 2011; and • The knee condition did not prevent the member from obtaining work as an AIN with the SESIAHS in 2006 or at the Hillside Figtree Nursing Home in 2012. Dr Kana has not included any restriction with respect to the right knee in medical certificates issued by him during the period 30 November 2010 onwards in the medical certificates provided to us. Psychological We note that in the Statement of Claim the member refers to depression. On the evidence available to us, however, it does not appear that any depressive condition from which the member suffers has prevented him or is likely in the future to prevent him from engaging in work for which he is qualified by reason of his education, training or experience. We have reviewed the report of Mr O'Brien, a psychologist to whom the member was referred for pain management from 30 June 2010. We note that in his report dated 30 June 2010 Mr O'Brien stated that the member had initially presented in a visibly distressed state as a result of the lack of sleep, pain and difficulties he was having in the workplace. We note that the member was said to have suicidal ideation. However, we also note that at the second session the member was reported to be calmer and at the member had been rehabilitated from his pain condition. We note that Mr O'Brien considered the member had symptoms consistent with a Major Depressive Disorder and that he had developed unhelpful coping strategies such as drinking excessive amounts of alcohol. Mr O'Brien recommended 5 more sessions of psychological therapy to provide pain management counselling, structured problem-solving strategies, psychological education, cognitive behavioural therapy, self-care and relaxation training and relapse prevention training. We have been provided with an email from Bill Ada to whom the member was referred by the worker's compensation rehabilitation provider, dated 30 November 2010. In that email Mr Ada reports that the member presented with symptoms commensurate with Adjustment Disorder with Mixed Anxiety and Depressed Mood in the severe to extremely severe range and that the member was reported to have difficulty coping with stress, particularly in relation to pain symptoms and management of his injuries. We note that Mr Ada encouraged the member to return to work and that he did so on 3 November 2010 for four hours per day, two days per week with restrictions. We note that this was reported to help increase the member's self-esteem, although he expressed reluctance to increase his working hours due to increased pain symptoms and travel. That said, we note that at the member's last review with Mr Ada on 18 November 2010, he had shown marked improvement from treatment, he reported a reduction in his levels of anxiety and improved anger management. We note that he continued to report some distress, however, this was said to be due to the number of treatment sessions he was having and childcare commitments whilst working. We further note that the member contacted Injury Treatment on 24 October 2010 to advise that he no longer wished to receive rehabilitation or treatment services from that company and that Mr Ada had attempted to contact the member on two occasions to discuss and resolve the member's concerns, but that the member had not replied. The member has not provided any further or updated reports from Mr O'Brien. However we note that following Mr O'Brien's assessment in June 2010 the member in fact returned to work at his pre-injury employment from November 2010 and subsequently obtained casual employment with Hillside Figtree Nursing Home. There is no reference in the member's statements or affidavits with which we have been provided to the member having treatment for depression since 2010. Dr Haber We have been provided with a report of Dr Haber dated 18 January 2011 in relation to the member's left shoulder injury. Dr Haber had diagnosed subacromial bursitis and tendinitis with no rotator cuff tear. He considered there to be no diagnostic signs of impingement. He made a provisional diagnosis of pain arising from a possible whiplash injury and possible impingement of the rotator cuff. We understand that Dr Haber has provided other reports which have been provided to the Court, however, we regret we are unable to consider these as the member has not provided consent. John Zaharis We note that Dr McBurnie's opinion is consistent with the previous vocational assessment report provided by John Zaharis of Injury Treatment in January 2012. He assumed that the member was subject to a greater lifting restriction than that subsequently identified by Dr Kana in that he assumed the member's lifting restriction was 10 kg. He nevertheless considered that the occupations of age/disabled carer, bar attendants, gaming worker and Security Officer were suitable. Ms Peterson and Ms Paterson We have also had regard to the vocational assessment and functional capacity report prepared by Ms Peterson and Ms Paterson of Rehab Management Pty Ltd dated 16 October 2013. In that report the member was identified to have various transferable skills which are suited to the roles of process worker, security worker, bar attendant, assistant in nursing and aged care assistant, as well as other general communication, administrative, computer, organisational and other skills. We note that on functional capacity assessment, there were inconsistencies in the member's presentation. In particular, normal variation in grip strength was not observed from which the authors concluded the member was not performing to maximal effort. The member also ceased activities reporting a fear of aggravating pain symptoms. For example walking 100 metres, being unable to perform a semi squat and being able (sic) to carry more than 3.75 kilograms a distance of 20 metres. The degree of restriction reported is inconsistent with the level of restriction placed on the member by his own GP. Ms Peterson and Ms Paterson considered that there were a range of occupations for which the member was qualified by reason of his education, training and experience, namely, security officer, call centre operator, enquiry clerk, gaming worker, doorperson, infantry and supply officer, bar attendant and product assembler and that positions in those occupations are available in the Sydney area. Whilst we note Dr Kana considers the member has a driving restriction of up to 30 minutes, that does not in our view preclude the member from obtaining work in those industries. As mentioned above, when asked to comment on the vocational report, the only roles that Dr Kana stated were unsuitable for the member were assistant in nursing and security officer. The Member's Statements and Affidavits We have considered the member's statement dated 10 July 2012 and 31 January 2013, and affidavit dated 22 January 2014. We particularly note his comments that he considers he would be unable to support a patient if a patient lost balance, that he would not be able to respond to an emergency situation or lift or shift the patient and that he considers his communication skills to be average and that he does not have any clerical or administrative or organisational skills. We have balanced the member's statements against the evidence and information provided to us, in particular the fact that he was able to work as an assistant in nursing at Hillside Figtree for approximately 9 months from September 2012, he was able to complete a security course and obtain a security licence in 2013, the fact that he appears to have maintained a good muscle bulk despite his alleged restrictions and symptoms, as noted in numerous medical reports and the opinions of the member's treating medical consultants and independent medical examiner Dr McBurnie and Ms Peterson and Ms Paterson. Taking the available evidence into account, we are not satisfied the member has become incapacitated to such an extent as to render him unlikely ever to engage in work for reward in any occupation or work for which he is reasonably qualified by reason of his education, training or experience.
It is significant that, in the section of the first declinature dealing with Dr Giblin's reports, the Insurer said: If you or the member wish for us to review our decision in the light of the further reports or any other information, please let us know and we will conduct a review".
The court's record of proceedings shows that, on 6 May 2014, when the parties were before a registrar, the court was informed that the Trustee wanted a review of the declinature, and an order was made that Mr Panos and the Trustee request the review by 20 May 2014.

[14]

Trustee's request to Insurer for reconsideration of Mr Panos' claim

On 21 May 2014, the Trustee's solicitors wrote a letter to the Insurer in which they requested the Insurer to review its decision as advised in the first declinature, and to reconsider the claim on further evidence.
It will be necessary to analyse the Trustee's letter in some detail, as Mr Panos relies upon the arguments put in that letter for the purposes of identifying the issues in his case.
The Trustee referred to the fact that these proceedings were currently being litigated, and that the Trustee had been directed to notify the Insurer of any request for internal review of its decision.
The Trustee requested the Insurer to review its initial decision, and also to reconsider the claim on further evidence.
The letter does not give any specific basis for this request, in the sense of referring to a provision in the Policy which entitled the Trustee to an internal review. Clause 18 of the Policy permitted the Trustee to refer a disputed claim to what was called the "Claims Review Committee", which was to be constituted by a representative of the Trustee, the Insurer, and an independent person. It is not known why the Trustee did not follow that approach in the present case. It may be that the Trustee relied upon the invitation in the first declinature that the Insurer made for the Trustee to request a review and submit further evidence, but even that is not known.
The Trustee's letter first dealt with a ground relied upon by the Insurer to deny Mr Panos' claim, which asserted that he was not covered by the Policy. The Insurer has now abandoned that ground.
The Trustee then dealt with the issue that it described as "procedural fairness" in the following terms: We refer to your letter dated 5 March 2014 ("Procedural Fairness Letter") to Mr Panos sent under cover of a letter to [the Trustee] of the same date which was apparently intended by [the Insurer] to afford [the Trustee] and Mr Panos "procedural fairness" in respect of the claim. We take this opportunity to note that "procedural fairness" is not necessarily an appropriate concept in this context and to record our concern that [the Insurer's] approach is apt to distract from its duty to perform the contract in utmost good faith. The "Procedural Fairness Letter" invited [the Trustee] and Mr Panos to make submissions on more than 130 documents submitted to or obtained by [the Insurer] on the claim. This invitation was issued some 6 days before Mr Panos's action against [the Insurer] was due to be heard in the Supreme Court and, as it turned out, 6 days before [the Insurer] made a decision that it was not satisfied that Mr Panos was Totally and Permanently Disabled. Although the letter stated "We particularly draw your attention to the material in this list which may be adverse to your claim" in fact no material in that list (or otherwise) was identified by [the Insurer] as being material that it considered was or may be adverse to the claim. We suspect that this omission underlies a number of matters we perceive as failures in [the Insurer's] approach to this claim. As you know, our entitlement to be paid a Total and Permanent Disablement (TPD) Benefit in respect of Mr Panos depends on the existence of a number of objective facts and proof to [the Insurer's] satisfaction that Mr Panos has become incapacitated to such an extent that he is "unlikely ever to engage in or work for reward in any occupation or were the which he…is reasonably qualified by reason of education, training or experience". [The Insurer's] contractual duty is to evaluate the evidence on which it determines its state of satisfaction reasonably and with utmost good faith. In our view this means, among other things, that [the Insurer] cannot merely remain silent and decline a claim based on suspicions or concerns which it has not shared with [the Trustee] or the member. The obligation for [the Insurer] to write to the insured about the evidence on which it proposes to act before deciding the claim is to actively engage in dialogue so that [the Insurer] is properly informed about matters important to the performance of the contract. This is not a rote exercise to give the insured the appearance of a hearing before the claim is declined. It appears from [the Insurer's] Declinature Letter that there were a number of issues of concern to [the Insurer] which [the Insurer] should have specifically raised with [the Trustee] and the member before evaluating the evidence. We address these further below. In then
The Trustee then set out detailed arguments in relation to 10 matters (some of which apparently arose out of the Trustee's reading of the first declinature), which were put by the Trustee with a view to persuading the Insurer that it should decide in favour of the claim upon its reconsideration. In view of the length of this aspect of the Trustee's letter, I will paraphrase the Trustee's arguments.
First (par 3), the Insurer did not fairly summarise Dr Kana's 16 January 2014 report, and to the extent that the Insurer was unsure about what Dr Kana meant, procedural fairness required the Insurer to ask him for an explanation.
Secondly (par 4), in relation to the Insurer's reference to Mr Panos' employment at the Hillside Nursing Home (the "Nursing Home"), it failed to note the evidence that it required retraining from his previous position. The employment was a light duties job in the nature of a work trial under the auspices of the workers compensation insurer. Mr Panos' evidence was that his employment was terminated due to his ongoing disabilities. If the Insurer had doubts about whether Mr Panos' evidence was untrue, it should have put the specific allegation to the Trustee and Mr Panos so that it could be answered.
Thirdly (par 5), if the Insurer was unsure about whether reports of Dr Giblin were to be relied upon it should have asked the Trustee before notifying an adverse decision. The Trustee required the Insurer to consider all of Dr Giblin's reports.
Fourthly (par 6), the Trustee enclosed a further report of Dr Diwan dated 3 March 2012, which the Trustee had received from Mr Panos on 9 May 2014. Dr Diwan advised that Mr Panos should change his profession and retrain into different employment, such as a registered nurse, which would "unload his spine" from the aged care or process worker type work.
Fifthly (par 7), the Insurer had referred to reports of four named doctors, but did not address the deterioration in Mr Panos' right and left knees in the period between November 2005 and May 2012. Mr Panos had ignored advice that he restrict his work to sentry work by retraining as an assistant-in-nursing, which consequently caused pain and disability. If Dr Kana failed to repeat the specialist's restrictions, it should have been clarified with Dr Kana. Dr Kana's failure to specifically nominate the degenerative knee conditions did not mean they should be ignored.
Sixthly (par 8), the Insurer had been provided with reports concerning Mr Panos' psychological condition, and if it was in doubt about the continuing nature and effect of the condition, the Insurer should have sought clarification from the Trustee.
Seventhly (par 9), it was unreasonable and contrary to the requirements of good faith for the Insurer to place any reliance upon Mr Panos' refusal to permit the Insurer to have access to documents produced to the court on subpoena by third parties, as it was not simply a matter for Mr Panos to give his consent, as the third parties had a legitimate interest in the maintenance of the implied undertaking that the documents produced would not be used for any purpose other than those of the proceedings.
Eighthly (par 10), the Insurer had not properly used the vocational assessment of Mr Zaharis, as this summary was inaccurate and the Insurer had failed to appreciate its limitations. The assessor had not considered the full extent of Mr Panos' injuries, and had not properly considered the actual likelihood that Mr Panos would obtain work for which he was previously qualified.
Ninthly (par 11), the vocational assessment prepared by Dr McBurnie on 16 October 2013 suffered from a number of limitations including principally a failure to focus on the correct question, which was not a theoretical capacity for obtaining notional work, but the practical likelihood in reality of Mr Panos' obtaining work without substantial retraining.
Finally (par 12), the Insurer had taken an adversarial approach to the evidence rather than making a fair and reasonable evaluation in utmost good faith. The Insurer had relied upon statements in the medical reports and ignored the contents of Mr Panos' evidence in response. The Trustee identified three 'facts' on which the Insurer relied, at page 9 of the first declinature, which the Trustee addressed. First, whereas the Insurer had said that Mr Panos was able to work as an assistant in nursing at the Nursing Home for 9 months from September 2012, that position was for reduced hours as part of a workers compensation and rehabilitation and return to work program, and not normal work. The Insurer had failed to state to what degree it considered the differences between this work and work obtainable on the open market, and failed to act upon Mr Panos' evidence that he ceased at work due to the further aggravation of his back condition from the tasks and duties of that job.
Secondly, in relying upon the fact that Mr Panos was able to complete a security course and obtain a security licence in 2013, the Insurer did not state what was involved in completing the course or obtaining the licence, or note that it was done in compliance with the recommendations of the workers compensation insurer's rehabilitation consultant, and was completed before Mr Panos experienced the problems he did in May 2013 in dealing with a patient emergency.
Thirdly, the Insurer had noted that Mr Panos had apparently maintained a good muscle bulk despite his alleged restrictions and symptoms. The Trustee specifically requested that the Insurer should say so if it meant to suggest that Mr Panos could not have the musculature observed if he truly had the symptoms reported, and that Mr Panos was therefore being untruthful in his claim. The Trustee then referred to aspects of the medical evidence that would support Mr Panos' claim, and also to the fact that Dr McBurnie had approved and expressly recommended Mr Panos continue a gym and exercise program.
The Trustee enclosed additional evidence including a report of Dr Diwan dated 3 March 2014 and a report of Dr Noonan dated 12 May 2014.
Mr Panos served his affidavit dated 4 June 2014 on the Insurer on 6 June 2014.

[15]

Insurer's response to Trustee's request for reconsideration

On 17 June 2014, the court made orders by consent, which included an order that the Insurer respond to the Trustee's request for a review of Mr Panos' claim, and provide reasons for its review decision, no later than 20 June 2014. The court also ordered the Trustee to advise Mr Panos of its assessment of the review decision within 4 weeks of receipt of the Insurer's decision. The matter was then listed for directions on 25 July 2014.
There is a strong implication in these orders that the Insurer would actually make a determination on the application for a review by 20 June 2014. Otherwise, there would appear to be no place for the Trustee to be able to advise Mr Panos of its assessment of the review decision within a further period.
On 17 June 2014, the Insurer sent a detailed letter to the Trustee in response to the Trustee's request that the Insurer reconsider the decision to decline Mr Panos' claim for the TPD benefit.
The letter stated that the Insurer had reviewed its first decision, but that review led it to decide to make further enquiries before completing its reconsideration, for reasons outlined in the balance of the letter. The Insurer had considered the additional evidence provided by the Trustee with its 21 May 2014 letter, reports of Dr Giblin dated 3 and 8 February 2014, and the material produced on subpoena in the proceedings, being documents produced by Dr Kana, Dr Diwan, Dr Haber, South Eastern Sydney Local Area Health Network, the Nursing Home and Employers Mutual Ltd.
The first response was to the Trustee's argument concerning the lack of 'procedural fairness' in the way the Insurer had not given to the Trustee an adequate indication of what it thought was the adverse material in the evidence, and the insufficient time that it gave to the Trustee to respond. The Insurer said, in part: … [The Trustee] had access to the material at or about the same time that [the Insurer] did. [The Insurer] considers it was not unreasonable for it to expedite its decision in view of the fact that there was an impending hearing date. Whether [the Trustee] agrees or disagrees with [the Insurer's] view in this regard, the fact is that the hearing was adjourned, [the Trustee] has had just over 2 months to consider and respond to the material, [the Trustee] has done so and [the Insurer] has taken into account the matters [the Trustee] as raised in its response in the course of this review.
It is appropriate to make the comment in context that the impending commencement of the first hearing could not be a satisfactory reason by itself to justify the shortness of the time that the Insurer gave to the Trustee to identify any adverse material and respond to it, in the absence of any advice from the Insurer as to what its preliminary position was. Perhaps more importantly, however, the gravamen of the response was that it really didn't matter if the Insurer had given inadequate time to the Trustee, because the Insurer had agreed to review its original decision, and to receive additional evidence, and the Trustee had in fact had adequate time to consider and respond to the material with the benefit of the first declinature, when it wrote its 21 May 2014 request for a review.
Implicitly, the Insurer was saying that the first decision to reject Mr Panos' claim had become irrelevant, as was the first declinature, because the only outcome that would matter would be the result of the review and reconsideration. It will be necessary in due course to consider what the position of the parties is, as arising from their pleadings and submissions, as to whether it remains legitimate for the Insurer to defend its original refusal of Mr Panos' claim based upon the first declinature. As a practical matter, it looks very much, from the terms of this letter like the Insurer had effectively abandoned its first decision.
It will not be necessary to summarise the individual responses in the letter to the Trustee's arguments. It is sufficient to note the following: first, the Insurer said that it would obtain a further report from Dr Kana; it would put Dr Giblin's reports and Dr Diwan's report to Dr McBurnie and Dr Ho for the provision of reports in response; it would put a report of Dr Patrick to Dr McBurnie and Dr Ho for report concerning the consequences of Mr Panos' knee injuries; it would seek further reports from Mr Ada and Dr Kana on the issue of Mr Panos' psychological condition; it would seek a further report concerning vocational assessment from the author of the Zaharis report; and it would ask Dr McBurnie and Ms Peterson and Ms Paterson to address the Trustee's criticisms of the Insurer's consideration of the vocational assessment.
The Insurer did not necessarily concede that its original consideration was inadequate. For example, the Insurer said in relation to the Trustee's claim that it had not sufficiently taken into account Mr Panos' evidence, that it did take that evidence into account, and it summarised most of that evidence in the letter. It added: [the Insurer] accepts that Mr Panos' evidence supports his claim. It would be surprising if it did not. The difficulty in this case is that Mr Panos' own accounts of pain and incapacity are inconsistent with the level of observable pathology evidenced by the radiology reports and with the opinions of a number of medical experts, in particular Dr Ho, Dr McBurnie as well as Mr Panos' GP, Dr Kana. It is supported by the opinion of Dr Giblin. Different views can be taken as to the extent to which Mr Panos' evidence is supported by or inconsistent with the views of other medical experts. Mr Panos' account of the work he considers himself capable of performing is inconsistent with the jobs [the author of the Zaharis report] and Ms Peterson and Ms Paterson consider him capable of performing. [The Insurer] does not consider the use of labels such as "the reality" particularly helpful in this context. [The Insurer] assumes that each of the experts who have provided their opinions have addressed what they considered to be the "reality" of Mr Panos' situation, as has Mr Panos himself. The issue for [Insurer] is how to balance the inconsistent evidence in reaching its determination…
It also said in relation to the vocational assessment issue: Similarly, [the Insurer] does not consider [the Trustee's] characterisation of Ms Peterson's and Ms Paterson's report as considering theoretical and not actual capacity for work that is "notional" to be fair or accurate. The experts have set out their assessment of Mr Panos' work suitability, and have clearly had regard to the employment options identified by a labour market analysis indicating that the positions identified are actually available. However, as [the Trustee] has raised this issue, [the Insurer] considers it appropriate to obtain the experts' response.
The Insurer stated, on the issue of the significance of Mr Panos' work at the Nursing Home, that it was aware that Mr Panos was subject to medical restrictions at the time that he undertook that work, but it considered the work to be relevant to its decision, because it showed that Mr Panos was capable of satisfactorily completing a return to work trial, and that the employer was sufficiently satisfied with Mr Panos' performance of his duties at the conclusion of the work trial to offer him a casual position, and that such work was available.
Finally, in relation to the issue of Mr Panos' muscle bulk, the Insurer said that it was unexplained at the time the Insurer made its previous decision; there was no evidence from Dr Noonan in that regard; and the Insurer intended to put Dr Noonan's report to Dr McBurnie before making a reconsideration decision.
The Insurer invited the Trustee to advise it as a matter of urgency whether it had any difficulties with the approach suggested by the Insurer, and if so why.
On 18 June 2014, Mr Panos' solicitors wrote to the solicitors for the Trustee. They complained about the fact that the Insurer was now suggesting that it would engage in a further round of enquiries, and stated: … [The Insurer] cannot yet again rely on its own failure to provide any reasonable enquiry as an excuse to delay reconsideration. We respectfully submit that [the Insurer] has had enough time to assess and accept our client's claim. We further respectfully submit that [the Insurer] should not be entitled to delay this claim any further and we seek agreement from your client that they will join us in requiring [the Insurer] to make a decision without any further delay or obtaining any further evidence. Otherwise, this will just reward [the Insurer] for their unreasonable conduct in this matter which has been lodged over two years ago.
On 4 July 2014, the Trustee's solicitors wrote a letter to the Insurer in which they noted that in fact no decision had been identified in the Insurer's 17 June 2014 letter. They referred to orders made by the court on 17 June 2014, and said that those orders were made on the expectation that the Insurer would make a review decision.
The solicitors advised the Insurer that the Trustee did not agree with the Insurer's proposals for further investigations. In essence, the Trustee's solicitors gave brief reasons as to why the additional investigations were unnecessary, given the length of time that the original investigations had taken, and stated: "We consider that [the Insurer] should not be entitled to delay the claim assessment and avoid making a review decision under the guise of collection of further evidence. [The Insurer] has had sufficient time to collate evidence, form an opinion and clarify any ambiguous points".
On 25 July 2014, the court set the matter down for hearing for 3 days commencing on 9 February 2015. The Insurer was ordered to serve the balance of its evidence by 26 September 2014.

[16]

Mr Panos' second amended statement of claim

Mr Panos filed a second amended statement of claim on 19 November 2014, some eight months after he received the first declinature. This is the operative statement of claim for the purpose of the determination of these proceedings.
Mr Panos sought in par 4 of his claim for relief a declaration that the Insurer's decision to decline his claim on 11 March 2014 after the commencement of the proceedings was wrong in law and therefore void. In relation to a request made by the Trustee on 21 May 2014 that the Insurer reconsider its decision, Mr Panos claimed in par 5 a declaration that the Insurer had constructively declined that request for reconsideration. In par 6 Mr Panos sought a declaration that he is totally and permanently disabled as defined. Thus, by par 6 of his claim for relief, Mr Panos appeared to assert that the Insurer was liable to pay the amount of the TPD benefit in respect of his claim as a debt (presumably following a determination by the Court that the facts satisfied the definition of TPD in the Policy).
Mr Panos made a number of preliminary allegations concerning the parties, and pleaded the relevant terms of the trust deed for the Fund and the Policy in pars 1 to 8.
Mr Panos then pleaded the factual basis of his claim that he met the definition for TPD in pars 9 to 22 as follows (these allegations were in substantially the same terms as the statement of claim): 9. The Plaintiff was born on 15 July 1970. He completed year 8 schooling at Yallourn Technical College in Newborough, Victoria. He then undertook half of year 9 before leaving to take up full-time employment. He has not completed any schooling since. 10. In 1989 the Plaintiff completed and Occupational Health & Safety course in nursing. In 2009 Plaintiff undertook a course and obtained a First Aid Certificate. 11. Between 1985 and August 2006 the Plaintiff had a number of jobs including work as a process worker, security guard at a casino, storeman and bar worker. 12. On or about 21 August 2006 the Plaintiff commenced employment at South Eastern Sydney Local Health District t/as Sutherland Hospital ("the Hospital") as a Nursing Assistant working 38 hours per week on a permanent full-time basis. 13. As an employee of the Hospital the Plaintiff became a member of the Fund and the (sic) paid valuable consideration so that he would be eligible for benefits from the Fund in the event that he suffered TPD… 15. On or about 25 January 2010 the Plaintiff suffered a low back injury lifting 25 kg box in the course of his employment. 16. On or about 18 March 2010 the Plaintiff suffered injuries to his back, neck, left shoulder in a motor vehicle accident on his way to work. 17. On about 26 May 2011 the Plaintiff suffered injuries to his pelvis and chest in another motor vehicle accident. 18. After that accident, the Plaintiff was not able to return to his job at the hospital and in fact, he has not carried out regular employment since 26 May 2011 with the Hospital. 19. The Plaintiff's employment by the Hospital was terminated on medical grounds on 16 October 2012. 20. As a condition of his entitlement to ongoing workers compensation payments, on or about 13 July 2012 the Hospital's workers compensation insurer arranged for the Plaintiff to undertake an unpaid training cause over six weeks at an aged care facility known as Hillside Figtree Nursing Home, Figtree ("the Nursing Home"). The Plaintiff also undertook retraining to obtain a new First Aid Certificate because the Certificate he had obtained in 2009 at expired. 21. Between approximately October 2012 and 31 May 2013 the Plaintiff worked on restricted duties at the Nursing Home. After suffering further aggravation to his left shoulder and lower back conditions on 30 May 2013, the Plaintiff was unable to continue working after 31 May 2013. 22. The Plaintiff contends that the work carried out at the Nursing Home was not regular, consistent or sustainable work and was in fact a failed rehabilitation attempt.
The same observations may be made, concerning the absence of an explicit pleading as to the date of commencement of Mr Panos' absence from his occupation, as were made in relation to the statement of claim.
Mr Panos' attack on the procedure by which the Insurer had determined his claim was pleaded in pars 23 to 31 (all of these allegations bar that in par 23 and one of the particulars in par 31 were new) as follows: 23. The Plaintiff lodged a claim for TPD with the First Defendant on or about 21 March 2012. 24. At the date of commencement of proceedings by the Plaintiff no decision had been made by the Second Defendant. 25. On the first day of the hearing of this matter on 11 March 2014, the Second Defendant notified the Court and it would be communicating in writing that it had made a decision on the Plaintiff's claim to the plaintiff and the First Defended on that day. This did not occur. 26. After the entire three-day hearing was adjourned the Plaintiff was notified by the Second Defendant by letter dated 18 March 2014 of the reasons for its decision to decline the Plaintiff's claim on 11 March 2014. 27. On 21 May 2014, the First Defendant on behalf of the Plaintiff sought reconsideration of his claim. 28. To date the Second Defendant has refused to make a decision in reconsidering the Plaintiff's claim. 29. The Plaintiff elects to treat the Second Defendant's refusal to make a decision on the reconsideration as a further constructive denial of the claim. 30. In declining the Plaintiff's claim for TPD benefits on 11 March 2014 and then failing to make a decision in reconsideration of the claim in the particular circumstances of the case, the Second Defendant acted in breach of its statutory and general law duties. 31. Particulars: (a) failure to act with utmost good faith; (b) failure to form an opinion based on a real and genuine consideration of the evidence; (c) failure to act reasonably in assessing the Plaintiff's claim; (d) failure to assess the Plaintiff's claim at all after (sic) requested to do so; (e) failure to form an opinion that the Plaintiff satisfies the definition of TPD within a reasonable time; (f) failure to accept that the evidence submitted by the Plaintiff establishes that he satisfies the definition of TPD; (g) failure to pay the insured benefit; (h) failure to accept that the Plaintiff's failed rehabilitation attempt confirmed that he met the definition of TPD; (i) failure to seek out information and/or documents from the Plaintiff prior to declining his claim.
In the particulars contained in par 31, only the last four words of sub-par (d), and the whole of sub-par (i) are new.
It seems obvious that the particulars do not identify, with any specificity, acts undertaken by the Insurer that it should not have undertaken, or acts that it ought to have done, but did not do.
The particulars in sub-pars (a) to (c) appear merely to state or imply in general terms the Insurer's obligations in dealing with Mr Panos' claim.
Sub-paragraphs (d) and (e) appear to relate to Mr Panos' claim concerning the failure of the Insurer to reconsider Mr Panos' claim, in response to the Trustee's request, by the date the second amended statement of claim was filed. Nothing is said that identifies the reason, for example by reference to a term of the Policy or some other duty imposed upon the Trustee, as to why the Insurer was obliged to reconsider its decision as advised in the first declinature. It is not clear from the pleading whether Mr Panos' case is that the Insurer was obliged to undertake a reconsideration of its decision on request, or whether the obligation on the Insurer to reconsider only arose if Mr Panos succeeds in establishing that the initial decision was ineffective for some reason.
The particulars in sub-pars (f) to (g) appear to support a case that the Insurer's decision will be vitiated merely because it did not accept the evidence provided and the submissions made by Mr Panos, and pay him the TPD benefit. As will be seen, the Insurer's decision cannot properly be attacked simply on the basis that it was wrong.
Sub-paragraph (i) appears to contain the only particular that in any specific way relates to the failure by the Insurer to take some step before it issued the first declinature. It is important because Mr Panos and the Insurer are at odds as to whether Mr Panos is entitled on his pleadings to put a case that the Insurer did not act with utmost good faith towards him, because it did not advise him of the basis upon which it was considering declining his claim for the TPD benefit, and gave him insufficient time to respond to its 'procedural fairness' letter dated 5 March 2014, before it issued the first declinature on 18 March 2014.
Mr Panos alleges that the Insurer failed to seek out information and/or documents from Mr Panos, prior to declining his claim. The particular obviously does not identify in any way what the information was or the documents were. The gravamen of Mr Panos' claim, as put at the hearing, was not that the Insurer failed to seek any particular information or documents from Mr Panos, before it made its decision. It was that the Insurer did not identify the evidence in the mass of material that it had been provided, upon which it contemplated acting to deny Mr Panos' claim, and then give him an ample opportunity to deliver to the Insurer further evidence and submissions, if he saw fit to do so.
Although, as noted, the declaration claimed by Mr Panos in par 6 of his claim for relief implies that it is his case that the court should determine whether the definition of TPD in the Policy was satisfied, so that the Insurer is indebted to the Trustee for the amount of the TPD benefit, Mr Panos does not appear to have pleaded the material facts upon which Mr Panos relies to base that claim.

[18]

Insurer's defence to the second amended statement of claim

On 13 January 2015, the Insurer filed in the Registry a defence to Mr Panos' second amended statement of claim, after the time in which it had been permitted to do so by directions made by the Court, had expired.
On 9 February 2015, which was the first day of the hearing of the proceedings before me, I granted the Insurer leave to file its defence to the second amended statement of claim out of time.
The Insurer pleaded its response to pars 24 to 32 of the second amended statement of claim in pars 17 to 22 of its defence. The Insurer admitted that it had not made the decision as at the date of commencement of the proceedings. It said that the allegations in pars 25 and 26 concerning the circumstances in which Mr Panos had been advised, on the first day of the first hearing, that the Insurer had made a decision were irrelevant. It said that, on 10 March 2014, it made a decision to decline Mr Panos' claim for a TPD benefit. It said that, on 17 March 2014, it sent a letter to the Trustee as policy owner notifying it of the decision, and the reasons for the decision. It admitted that, on 18 March 2014, its solicitor sent a copy of the Insurer's letter to the Trustee to Mr Panos' solicitor.
In response to the allegation in par 27 of the second amended statement of claim, concerning the request for a reconsideration of the decision, the Insurer, in par 19 of the defence, in substance admitted that it received the 21 May 2014 letter, and said that it responded by letter dated 17 June 2014. The Insurer did not plead the substance of the terms of that letter, or what its effect was. It is therefore necessary to consider the terms of the Insurer's 17 June 2014 letter, to understand the effect of this pleading. For present purposes, it is sufficient to note that the Insurer provided a detailed response to the Trustee's request. The Insurer implicitly accepted the Trustee's request for a reconsideration; it gave a preliminary response in some detail, without making any decision, and advised the Trustee that it proposed to obtain certain identified additional information, including from medical practitioners, "before reconsidering the claim".
The Insurer otherwise effectively denied the relevant allegations made by Mr Panos. In particular, the Insurer denied that it had constructively denied the Trustee's claim, or that its conduct constituted a breach of its statutory and general law duties, as alleged by Mr Panos. The Insurer, in practical terms, denied that the first declinature was ineffective, denied that its failure to complete the reconsideration was a constructive denial, and denied that it was obliged to pay the TPD benefit to the Trustee (the last denial being implicit, because Mr Panos' allegation in that respect was also implicit).
The Insurer did not make any allegation, in its defence, concerning its making any decision in response to the request for reconsideration. The evidence suggests that, in fact, on 14 January 2015, the Insurer delivered a letter in formal response to the request for reconsideration, in which it declined Mr Panos' claim for a second time. The parties referred to this letter as "the second declinature". Mr Panos' solicitors wrote to the Insurer's solicitors on 16 January 2015, to foreshadow an objection to the Insurer relying upon the second declinature at the hearing. As noted, the Insurer did not plead the second declinature in its defence filed on 13 January 2015, just one day before the issue of the second declinature. Ultimately, at the hearing, the Insurer did not press its tender of the second declinature, and accordingly accepted that it could not rely upon that matter in its defence.

[19]

Mr Panos' outline opening submissions

It is necessary to consider aspects of the outline opening submissions delivered by Mr Panos' counsel, shortly before the hearing before me commenced on the 9 February 2015. The reason is that a number of particulars of aspects of Mr Panos' case were first provided to the Insurer by means of this document. It is therefore significant to the identification, in more detail than can be found in the second amended statement of claim, of the case that Mr Panos wished to prosecute. It will be an issue whether Mr Panos was entitled to proceed with the case as identified in the outline opening, in relation to all of the issues dealt with in the document.
Mr Panos appears to have distilled his case concerning the inadequacy of the basis of the Insurer's rejection of his claim for the TPD benefit in par 10 of his opening outline of submissions, in the following terms: 10. In the present case: 10.1. [The Insurer] failed to form an opinion between 21 March 2012 and 17 March 2014 (one week after the hearing on 11 March 2014 was aborted due to [the Insurer's] proposing to make a decision to decline the claim". 10.2. [The Insurer's] decision of 17 March 2014 has "miscarry" for the reasons set out by the Trustee in its letter of 21 May 2014 (CB 865). 10.3. [The Insurer] failed to reconsider the matter, until 3 weeks before the next hearing, thereby not allowing the Trustee sufficient time to review [the Insurer's] further decision.
Paragraph 10.1 is in substance a claim that there was a constructive denial before the issue of the first declinature.
Mr Panos did not argue that, by agreeing to undertake the reconsideration of its decision, the Insurer had in some way abandoned its initial determination (even though the Insurer justified the shortness of the time that it gave Mr Panos to respond to the 'procedural fairness' letter, by saying that the Trustee had adequate time to consider the first declinature as part of the reconsideration). Paragraph 10.2 is a claim that the Insurers first decision to reject Mr Panos claim should be set aside because it was made in breach of the Insurers duty to act with utmost good faith.
Mr Panos and did not spell out the basis of his claim that the decision to reject his claim for the TPD benefit recorded in the first declinature "miscarried". Consequently, it is necessary to review the whole of the contents of the Trustee's 21 May 2014 letter to discover the basis of Mr Panos' claim.
The third aspect of Mr Panos' case, as described in par 10.3, was that the fact of the Insurer's second declinature being delayed to 14 January 2015 was in some way defective, because it did not give the Trustee and adequate time to review and respond to the decision. It appears that he assumed in his written opening that the second declinature would be received into evidence.
As I have noted, the Insurer's defence to the second amended statement of claim did not plead the second decision or rely upon the second declinature, and the Insurer did not press the tender of the second declinature into evidence.
The case was therefore conducted on the basis that the Insurer had not made any decision in response to the Trustee's request for a reconsideration by the Insurer of its first decision to reject Mr Panos' claim.
That had the result that Mr Panos' case was required, once again, to evolve.

[20]

Mr Panos' closing written submissions

In the unusual circumstances of this case, I have found it necessary to review Mr Panos' final submissions in order to ascertain the case that he seeks to make, at the end of the day, as a step in the process in determining the issues that were properly before the court.
It appears from Mr Panos' written closing submissions that he wishes to attack the manner in which the Insurer decided to make the first declinature on five grounds (see pars 34 and 35), which I paraphrase as follows: 1. The Insurer failed to make a decision within a reasonable time (being some two years after the claim was made, and only on about the day the hearing was due to commence). Therefore the Insurer constructively denied Mr Panos' claim, well before the time of the first declinature (Ground 1). 2. Unbeknownst to Mr Panos, the Insurer made a preliminary decision to decline his claim on 26 June 2013, as evidenced (claims Mr Panos) by the existence of an email of that date, enclosing draft procedural fairness letters to be sent to Mr Panos, which letters would not have been necessary unless the Insurer had made a preliminary decision to decline the claim. Mr Panos wishes to argue that any preliminary decision made by the Insurer at that time must have been unreasonable, because in the circumstances, the Insurer relied on medical evidence that it had obtained, and ignored contrary evidence provided on behalf of Mr Panos (Ground 2). 3. The Insurer, in making the determination that led to the first declinature, acted upon the basis of a substantial body of material, without giving Mr Panos a reasonable opportunity to respond. That, Mr Panos wishes to say, flows from the fact that the Trustee was given a 'procedural fairness' letter dated 5 March 2014, that showed that the Insurer proposed to rely upon some 300 pages of material, and the Insurer required a response to its letter by 5 PM on 7 March 2014. Furthermore, the procedural fairness letter contained a statement: "We particularly draw your attention to the material in the list which may have been adverse to your claim", without identifying any such material. Mr Panos wishes to rely upon the Trustee's letter in response dated 21 May 2014 (Ground 3). 4. The Insurer, in making the determination that led to the first declinature, did not consider the correct question because: first, it considered that the policy was terminated on 30 November 2010, and the provision of extended cover did not apply (Ground 4). 5. Secondly, the insurer did not consider the correct question, because it looked to whether the plaintiff was capable of undertaking tasks, rather than the likelihood of the plaintiff obtaining that employment; and it considered jobs that were only available after education and retraining (Ground 5). 6. The Insurer failed to act reasonably and in good faith in considering and determining the application, for the reasons set out in the Trustee's letter dated 21 May 2014 (Ground 6). 7. The Insurer failed to form an opinion in relation to the review sought by the Trustee on 21 May 2014 (Ground 7).

[21]

The position adopted by the Insurer

In its written outline delivered before the commencement of the hearing, the Insurer submitted, in par 5, that there were two principal issues in the case, the first being whether the Insurer's "decisions to decline the claim were unreasonable" (where "decisions" was in the plural). The Insurer also, at that stage, assumed that the second declinature would be received into evidence, so that the decision reflected in that letter would be treated as a separate determination of Mr Panos' claim.
In par 7 of its closing written submissions, the Insurer identified the issues as being; first, whether the Insurer's decision to decline Mr Panos' claim, as represented by the first declinature, was unreasonable, or in breach of its duty of utmost good faith; and secondly, assuming Mr Panos succeeded on the first issue, whether Mr Panos meets the definition of TPD in the Policy; that being a question for the court.
As I understand it, the Insurer accepts that, if Mr Panos succeeds on the first issue, the fact that the Insurer has been unable to rely upon the second declinature is that it will follow that the court must decide that there has been a constructive denial of the claim made in the Trustee's letter requesting a review of the first decision. The Insurer did not submit that the time necessary for it to deal with the request for a review had not elapsed.
As I understand it, it is implied in the closing submissions of both parties that the need for the Insurer to act upon the Trustee's request for a review of the first decision only arises if Mr Panos succeeds on the first issue posed by the Insurer, and establishes that the first decision was ineffective.
The Insurer's position is that Ground (1) set out above is no longer relevant on the pleadings and Grounds (2) and (3) are not pleaded in the second amended statement of claim. Ground (4) is not relevant as the Insurer conceded in its initial response to the Trustee's request for a review that it could not rely upon that ground. The Insurer accepts that Grounds (5) and (6) are in issue. I am unsure of the Insurer's position concerning Ground (7). The Insurer does not appear to context that, if it was bound to determine the review, considered in isolation there was a constructive denial of Mr Panos' claim. The Insurer did not deal separately with this issue in its final submissions. Nor did Mr Panos.

[22]

The issues raised by the pleadings and particulars

I regret to have to say that, even allowing for the two occasions upon which Mr Panos has been required by the Insurer's conduct to change the basis of his case, Mr Panos' claim has not been properly pleaded, and inadequate particulars have been given. That has led to delay and risk of confusion.
It should be possible for the court and the opposing parties to form an adequate understanding of the plaintiff's claim from a reading of the statement of claim in isolation. It is necessary for the rules of pleading to be complied with. At the very least, taking the present claim against the Insurer as an example, a plaintiff in Mr Panos' position must analyse the legal basis of his claim, being the trust deed that constituted the Fund, and the Policy, and the relevant legal duties imposed upon the Insurer, and plead all of the material facts, and provide adequate particulars of the allegations. That would involve Mr Panos making a positive allegation of when his absence from his occupation for the necessary 6 consecutive months commenced, as well as a positive allegation that he at the relevant time became incapacitated to such an extent as to render him unlikely ever to engage in or work for reward in any occupation for work for which he was reasonably qualified by reason of education, training or experience. Adequate particulars of his injury or illness would be required, as well as particulars of the occupation or work for which he was reasonably qualified, and the nature of his education, training or experience. The particulars should not be given by reference to complex documents external to the pleading. The statement of claim should provide particulars, at least to a reasonable level of detail, which actually describes the acts and omissions which are alleged to constitute the breach by the Insurer of its duties.
I will now deal with the question of which of the grounds upon which Mr Panos wishes to rely is available to him.

[25]

Ground (3)

The question of whether or not Mr Panos is entitled to rely upon Ground (3) is more complex. Mr Panos sought, in his second amended statement of claim, a declaration that the second declinature was wrong in law, and therefore void. It is true that he appears to have omitted to plead in any comprehensive way, in his allegations of fact, what the basis of that claim for relief was. He only pleaded in par 16 that the Insurer made the first declinature, and in par 30 he alleged that the Insurer acted in breach of its statutory and general law duties when it made the first declinature. The particulars of the alleged breach that are set out in par 31 are so general as to be almost entirely unhelpful. Little is to be gained from a minute analysis of the general particulars set out in par 31.
The general particular that most likely covers the claim that Mr Panos now wishes to make is that in sub-par (c), which is: "failure to act reasonably in assessing the Plaintiff's claim".
As I have noted above, it is difficult to see how sub-par (i) describes a claim where the Insurer is criticised for not identifying the aspects of the evidence upon which it intended to rely, and its preliminary views, and not giving Mr Panos an opportunity to provide further evidence and submissions, if he wished. The particular alleges a failure by the Insurer "to seek out" information and documents from Mr Panos (without making any attempt to identify the nature of the information or documents concerned).
The generality of the particulars provided by Mr Panos, and the apparent preparedness of the Insurer to go to trial without, apparently, insisting upon Mr Panos providing proper and detailed particulars of his claim, gives rise to a forensic problem, which should never arise, but alas frequently does, as to whether in this circumstance a plaintiff should be precluded from prosecuting an insufficiently particularised claim, or whether, on the contrary, the failure by the defendant to insist upon proper particularity simply has the result that the defendant must deal at trial with a claim that has not adequately been confined.
The primary duty to ensure that a party's case is properly pleaded, and that adequate particulars are given, must fall upon that party. The court does not encourage the making by other parties of extensive requests for particulars, and the risk should not be thrown on the other parties that they may be confused and ambushed during the hearing by a plaintiff seeking to make whatever case he or she can out of the evidence that is led.
As I have noted above, Mr Panos disclosed that he was relying upon Ground (3) in par 10.2 of his outline submissions, delivered shortly before the commencement of the hearing. Even then, the only particulars of the basis upon which the Insurer's decision had "miscarried" were by reference to the contents of the Trustee's letter of 21 May 2014.
I have concluded, on balance, that the circumstances of this case justify Mr Panos being permitted to rely upon Ground (3), notwithstanding that he did not raise the ground adequately in his second amended statement of claim, and only specifically stated it in his outline opening. Ordinarily, it would not be proper for the court to permit a party to rely upon the ground in these circumstances. However, a special feature of this case is that the Insurer caused the first hearing to be vacated, because it announced that it would decline Mr Panos' claim, so late, that this change of position could not be accommodated within a continuation of the hearing. The Insurer obliged Mr Panos to reformulate his case. Not only that, but the court was asked to make the order that it made on 6 May 2014, to which I have referred above, that the Trustee request a review of the Insurer's determination by 20 May 2015. The terms in which the Trustee made that request have been considered above. The Trustee clearly, and in detail, in its 21 May 2014 letter, stated the essence of Ground (3). That was not simply a request made outside the proceedings, but was made in accordance with the court's order. It was not made by Mr Panos, but was made on his behalf. It was not in any formal sense a statement of Mr Panos' claim, or particulars of his claim, but I am satisfied that the Insurer must have understood from the terms of the Trustee's letter that the Trustee, and thus Mr Panos, contended that the first determination had miscarried because of the failure to accord Mr Panos procedural fairness in the terms set out in the letter. There is therefore no material unfairness in the court permitting Mr Panos to rely upon Ground (3).

[29]

Ground (7)

Mr Panos clearly pleaded in his second amended statement of claim that on 21 May 2014, the Trustee sought reconsideration of Mr Panos' claim, and to the date of the pleading the Insurer had refused to make a decision (pars 27 and 28).
Mr Panos did not, however, plead the basis upon which he alleged that the Insurer was obliged to carry out the reconsideration. I have noted above that the Insurer volunteered in the first declinature to undertake the reconsideration, but it is not clear that it was accordingly bound to do so.
As will shortly be seen, the parties accepted that, as a matter of law, if the court concludes that it must set aside the Insurer's first determination, the court must then decide for itself whether or not Mr Panos is entitled to the TPD benefit.
Consequently, if the court sets aside the first determination made by the Trustee, and then decides that Mr Panos is entitled to the TPD benefit, there will be no purpose in considering whether the Insurer constructively denied the application for a reconsideration of its first determination. Equally, if the court decides that Mr Panos is not entitled to the TPD benefit, that will decide the issue as between Mr Panos and the Insurer. Ground (7) only becomes relevant if the court does not set aside the Insurer's first determination. In that case the court will not be able to decide the issue itself. It is in that case that Mr Panos would have an interest in arguing that, notwithstanding the first determination, the Insurer was bound (on some basis not yet disclosed) to reconsider its first determination, so that its failure to do so constituted a constructive denial. If the case reached that point, it is clear that there was a constructive denial. The court could then decide for itself whether or not Mr Panos was entitled to the TPD benefit. The issue would hinge upon whether the Insurer was obliged to determine the reconsideration, even if it could sustain the first determination.
Mr Panos did not address the question whether the Insurer was obliged to determine the reconsideration, even if it could sustain the first determination, in his second amended statement of claim or his submissions. As I have said, the question was not addressed by either party. As it happens, I have decided Mr Panos' claim, on the basis of the other grounds that are properly available to him, in a way that has the result that Ground (7) does not need to be decided. Accordingly, there is no necessity for the court to make a determination of whether or not Ground (7) is available to Mr Panos, in the difficult circumstances that I have outlined above.

[30]

Legal principles

The legal principles that must be applied to determine the present case are relatively well settled, and do not require substantial elaboration. There was no real contest between the parties as to the principles that the court should apply.
The Court of Appeal has recently authoritatively dealt with the issue in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104. In that case, Meagher JA, with whom Basten and Gleeson JJA relevantly agreed, said 49. … The pleading did not however recognise that different principles apply to the performance by the Trustee of any duty to form an opinion as to a matter on which a member's entitlement to a benefit depends, to the performance by an insurer of a contractual obligation to form such an opinion and to the relief that may be sought assuming a breach of duty or obligation by either or both is established. As to the position of the Trustee, see Finch v Telstra Super Pty Ltd [2010] HCA 36; 242 CLR 254 esp at [29], [30], [64], [65], [66]. Where a trustee is found to have failed to comply with that duty, the task of forming the opinion will be remitted to it for further determination unless that task admits of only one possible outcome or it is concluded that the trustee is no longer capable of approaching the task fairly and objectively. As to the position in relation to the nature of the insurer's contractual obligation, see the often cited summary of McLelland J in Edwards v The Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536. That statement was approved by this Court in Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; 13 ANZ Ins Cas 90-123 at [47], [50]. 50.In Edwards, applying the New Zealand Court of Appeal decision in Butcher v Port [1985] 1 NZLR 491, McLelland J also held that where the formation of an opinion by the insurer is in the nature of a condition of its liability, the insurer cannot rely on the non-fulfilment of that condition if that non-fulfilment was prevented by its own default. In that event the issue upon which the insurer's opinion is required to be formed becomes one for the determination of the Court. The line of authority proceeding from the application of Butcher v Port in Edwards was followed in McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197. The correctness of that underlying proposition was not in issue in this Court in Hannover Life v Sayseng. Nor was it in issue in Hannover Life Re of Australasia Ltd v Colella [2014] VSCA 205; 18 ANZ Ins Cas 62-036.
Basten JA discussed a number of considerations which, in principle, might cast doubt on the rule that, if the pre-condition to the insurer's liability constituted by its satisfaction that the criteria for its liability have been established, has not been fulfilled because of the insurer's own breach of duty, the court should determine for itself the entitlement of the claimant to the benefit. His Honour referred in particular to the statutory scheme under the Superannuation (Resolution of Complaints) Act 1993 (Cth), which provides for a merit review of any decision by the Trustee, and permits the insurer to be joined and a review of its decision to occur. The matters considered by his Honour did not arise in the case before the court.
The parties in the present case have also not raised those matters, and accept that the principles stated by Meagher JA apply.
In the present case, there is an additional factor that may arguably have a bearing on the content of the duties owed by the Insurer, and the question of what should happen, if the court determines that the Insurer's determination should be set aside. It is the inclusion in the Policy of cl 18, which I have mentioned above, and which gives the Trustee a right, in all cases, after it has completed its own review of the Insurer's determination, to seek a review by the Claims Review Committee. As the Policy expressly provides for a contractual right of review by a committee other than the Insurer itself, it is at least questionable as to why the claimant should be able to ask the court to determine the question, thereby obviating an application for review by the Trustee. It is also arguable that the existence of the formal right of review may affect the content of the Insurer's duty, at least in some respects, in relation to the process by which it must determine the claim.
Neither party to the present proceedings made any claim or submission based upon cl 18 of the Policy, and indeed they did not mention it. It must therefore be ignored.
It will be convenient to extract part of the judgment of Santow JA in Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; 13 ANZ Ins Cas 90-123 concerning the content of the duty owed by an insurer in the determination of a TPD claim such as the present: 35 Turning to the challenge to Hannover's decision as insurer, the matter in issue on this appeal, the trial judge observed that when the decision of an insurer is challenged, while the grounds of challenge are generally similar to those applicable to trustees, the court proceeds to determine the facts should the insurer have actually failed to form the relevant opinion or have constructively failed to do so by proceeding on the wrong basis ([77] Red, 55M-S). 36 The nature and content of Hannover's obligations vis-à-vis Mr Sayseng were derived by the trial judge from the principles stated in Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536. The relevant principles were said to be these ([81] Red, 57K-58Z): (a) There was an implied obligation on Hannover to consider and determine whether it should form an opinion on the matter which was a condition of its own liability; (b) That obligation involved consideration and determination of the correct question; (c) Hannover was under a duty of good faith and fair dealing which required it to have due regard for the interest of the claimants, meaning Mr Sayseng, as well as the Trustee; (d) Hannover was also obliged to act reasonably in considering and determining what its opinion was; (e) If the view taken by Hannover can be shown to have been unreasonable on the material before it, its decision can be successfully attacked; (f) If Hannover's decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the Court; (g) It has been held to be unfair for an insurer to act upon detailed and adverse medical reports obtained by the insurer itself without giving the claimant an opportunity to balance the report by obtaining a detailed report from a treating doctor, or giving the claimant a chance to answer the adverse elements in the report ([88], Red, 60L-O) citing Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175, Hodgson J at 78000 and 78001; Wyllie v National Mutual Life Association Ltd (Hunter J, 18 April 1997, unreported) and Beverley v Tyndall Life Insurance Co Ltd (1999) WAR 327 per Ipp J at [25], [33 to 37] and [84 to 95] and Malcolm CJ at [6], [12] and [13], [14] and [15]. Anderson J who agreed in the result of the appeal did not agree with this holding: see [97] to [98].
Point (g) in this extract from Santow JA's judgment is of particular significance in the present case. Ground (3) is a claim that the Insurer did not act with utmost good faith when it referred to a substantial quantity of evidence, asked Mr Panos to respond, if he wished, to anything in the material that was adverse to his claim, without identifying what the Insurer considered to be adverse, and then gave him a couple of days to do so. This ground is not specifically encompassed within point (g).
It is appropriate to consider the authorities referred to by Santow JA in support of point (g).
In Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Ins Cas 61-175, Hodgson J (as his Honour then was) at 78000 and 78001 said: The second question is whether the defendant fulfilled its duty of good faith and fair dealing, and acted reasonably in considering and determining the matter. No suggestion is made by the plaintiff of subjective bad faith, so essentially it comes down to the question of whether the defendant acted fairly and reasonably. It seems to me that the substantial complaints come down to this: lack of enquiries made of the treating medical practitioners; lack of consideration of the plaintiff's capabilities, having regard to his education, experience, etc.; and the suggestion that the defendant did no more than rubber stamp views expressed by Dr Kater and Dr Watts. I think there is some merit in these criticisms, and I would express the merit I see in them in this way. … Thirdly, beyond asking the plaintiff to see a doctor instructed by the defendant because "further medical evidence is necessary to support your claim", the defendant did not invite the plaintiff to put any additional evidence to support his claim, such as a full report from Dr Bodel, or a report from other treating doctors, or any material as to his capabilities of education or experience, much less did they give the plaintiff an opportunity to answer the adverse report of Dr Watts. I do not understand the authorities to require that natural justice in the full sense be given by an insurer considering this sort of case, but it does seem to me that some attention to the requirements of natural justice is part of fairness and reasonableness in dealing with such a case. It seems to me that it may be considered not fair to the plaintiff for the defendant to have acted on a detailed report obtained in the circumstances I have outlined, without giving the plaintiff any opportunity either to balance it by a similar detailed report from one of the treating doctors, much less, as I have said, giving the plaintiff a chance to answer the adverse report. If only the first and second matters which I have referred to were involved, I do not think that would be sufficient to vitiate the decision of the defendant. Certainly, an insurer cannot be expected to consider a matter such as this,in the full detail that might occur in a court case. However, I think the third matter I have referred to, especially coupled with the first and second, is sufficient to justify the Court in saying that the defendant did not act fairly and reasonably in coming to a decision on the plaintiff's claim.
In Wyllie v National Mutual Life Association of Australasia (1997) 217 ALR 324 at 341-342 Hunter J said: The conclusion I have reached in this case is that the insurer failed to act reasonably, fairly or in good faith in the assessment of the plaintiff's claim, largely as a result of its misconception of what was required of it in assessing the plaintiff's claim under the policy. In particular, the insurer seems to have proceeded under the misapprehension that all that was required of it was to obtain medical reports on the plaintiff's medical condition and, on that evidence, together with the employer's statements and the member's statement, determine whether he was totally and permanently disabled within the meaning of the policy. In some cases such an approach could be justified, particularly where the assessment only concerns the physical limitations of the claimant. Here, however, the plaintiff's injury was brain stem damage resulting in dysarthria, dysphasia, ataxia, incoordination, left hemiparesis and a significantly high level of cognitive deficiencies. While neurological assessments and rehabilitation assessments may be made of the effect of such an injury, the task confronting the insurer in such a case involved carrying out a pragmatic exercise aimed at ascertaining what the plaintiff was actually capable of doing, in addition to obtaining medical opinion evidence, satisfactory to it… I think the conduct of the insurer was manifestly unfair to the plaintiff in failing to provide the plaintiff with an opportunity of addressing the matters upon which McKeand had formed the opinion that the plaintiff was "Clearly ... not T. & P. D.". Having regard to the nature and seriousness of the plaintiff's injury and to the unsatisfactory aspects of the claim material referred to later in these reasons, I think the insurer was obliged to inform the plaintiff of the particulars of the basis upon which that opinion had been reached and so to afford him the opportunity of presenting evidence of his actual capacity…
The Full Court of the Supreme Court of Western Australia in Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198 also decided that an insurer had failed to observe its duty to exercise utmost good faith, and to act reasonably, because it did not provide the claimant with copies of adverse medical reports, and to give the claimant an opportunity to respond, particularly where the reports responded to medical reports provided to the insurer by the claimant in support of his case.
The present case did not involve the Insurer acting upon medical or other reports that it had withheld from Mr Panos. A substantial proportion of the evidence referred to in the 'procedural fairness' letter had been provided to the Insurer by Mr Panos himself. Almost all of the other material, which the Insurer had obtained, had already been provided to Mr Panos. I do not think, however, that what I have described as point (g) was intended to be a comprehensive statement of the circumstances in which an insurer may breach its duty to the claimant in respect of the manner in which it provides material to the claimant, upon which it proposes to base its decision, or the opportunity that it gives to the claimant to respond. Each case will depend upon its own facts, and the ultimate question will be whether the insurer has acted with utmost good faith, which in many cases will, as Hodgson J observed, come down to whether the insurer has acted fairly and reasonably.
There is an issue in these proceedings as to whether the types of occupation that the Insurer says Mr Panos was reasonably capable of pursuing should be excluded because they would require retraining by Mr Panos, so that they were not available to him by reason of his education, training and experience at the relevant date. Relevant principles are established by the judgment of Bathurst CJ, with whom Macfarlan, Meagher and Hoeben JJA, and Tobias AJA agreed, in Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246: [37] The question of whether a person is reasonably fitted for a particular type of work will always depend on the facts of the particular case. However, with respect to the primary judge, it does not seem to me that the need to obtain a licence and as a condition of maintaining it undertake a limited qualifying course would preclude a person from being reasonably fitted for a particular occupation. [38] In the present case Mr Dargan was an experienced truck driver who it can be inferred, was familiar with the rules of the road and the demands involved in driving commercial vehicles. He was able to obtain an ancillary certificate to drive a taxi without undertaking any test and was able to comfortably pass the test required as a condition of maintaining the certificate. The evidence does not suggest that Mr Dargan's training and experience as a truck driver was insufficient to enable him to complete the course. Even assuming that he had to refresh his knowledge of the rules of the road and acquaint himself with the major roads around Hobart to complete the course, that would not in my opinion mean that he was not reasonably fit to drive a taxi by virtue of his education, training or experience. [39] The position may be contrasted with that considered by Brereton J in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 ; (2007) 16 ANZ Ins Cas 90-142. The policy in that case contained a definition of disablement in the following terms: In relation to a Life Assured means having been absent from employment with the Company through injury or illness for six consecutive months and in the opinion of the Association after consideration of medical evidence having become incapacitated to such an extent as to render the Life Assured unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education training or experience provided that a Life assured shall be deemed to have become Totally and Permanently Disabled if he has suffered the loss of two limbs or the sight of both eyes or the loss of one limb and the sight of one eye where "limb" means the whole hand or the whole foot. [40] The plaintiff in that case was injured in 1995 whilst being employed with the responsibility of greasing machinery. From 1996 to 1998 he completed a TAFE course in Office Administration and Computer Studies. He obtained employment thereafter as a contract officer with the Aboriginal Land Council as its Regional Project Officer in eastern New South Wales, responsible for the negotiation of traditional land rights on behalf of Aboriginal communities. Brereton J unsurprisingly held that at the time of suffering his injury he was not qualified for this work by reason of his education, training and experience. The position may be contrasted with the present case involving the obtaining of a certificate and a subsequent week-long course to ensure he was capable of retaining it. [41] In Harwood supra Brereton J emphasised (at [35]) that the assessment under the claim in question had to be made at the expiration of six months and could only take into account work for which the employer was suited at the expiration of that period. That may be accepted but his Honour did not have to deal with the question which arose in the present case. That is, whether the need to complete a training course which the claimant at the time of assessment had the education, training and experience to successfully complete, leads to the conclusion that at that time he was incapable of performing the work within the meaning of the policy. [42] As I indicated the question was considered by Hodgson J in Chammas supra. Clause 18.1 of the policy in that case provided for a lump sum payment on death or disablement in being incapacitated for further employment. Clause 18.2 of the policy provided that the question of the disablement shall be determined by the Trustee and for that purpose the Trustee may rely on the advice of a medical practitioner. The claim form contained a definition of Total and Permanent Disablement relevantly in the following terms: Having provided proof to the satisfaction of the Trustee that the member has become incapacitated to such an extent as to render the member unlikely ever to engage in or work for reward in any occupation or work for which is [sic] reasonably qualified by education training or experience. [43] Hodgson J in these circumstances reached the following conclusion on the question of construction: The first matter I need to consider is whether the defendant considered the wrong question. The crucial words in both CL 18.1 and CL 18.2 are the words "incapacitated for further employment". I do not think the existence in the rules of definitions of employer and employee do have the result that "employment" here should be construed to mean the particular employment of the defined employer and employee. I think the whole context of CL 18 makes it clear that employment there is to be given a wider construction. However, 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. The requirement that the incapacity be "for" further employment, carries with it, I think, the requirement that the incapacity be permanent or substantially permanent. Mere temporary incapacity would clearly be insufficient. Although, contrary to what I said in my oral reasons, the reference is to incapacity "for" further employment, not "from" employment, I think the actual availability of employment and the question of the likelihood of obtaining employment is relevant. Turning to the question as stated on the back of the claim form, I do not think that is, in any material respect, different from the question arising from the words as I have interpreted them. The test stated there is that the member should be rendered unlikely ever to engage or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience; 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. [44] Although cases dealing with policies that have a different wording must be treated with caution, his Honour's view as to the meaning of the expression "reasonably qualified" is of some assistance in this case. In the present case there is nothing to suggest that as at the date Mr Dargan's disability fell to be assessed, he was not capable of obtaining an ancillary certificate and completing the training course which he undertook in 2008. The contrary was not suggested. It follows, in my opinion, that at the time his capacity for employment came to be assessed he was reasonably fitted to carry out the occupation of a taxi driver, at least on a part-time basis. [45] In those circumstances, subject to the point raised by the Notice of Contention, the primary judge was in error in concluding that Mr Dargan was totally and permanently disabled. His Honour's conclusion, in my respectful opinion, failed to take into account the word "reasonably" in his construction of the provision and in its application to Mr Dargan.
Finally, there is also an issue in this case as to whether the likelihood that Mr Panos could undertake one of the occupations suggested by the Insurer at the relevant date, and actually obtain real employment, was more theoretical than real. As it is not helpful for there to be a proliferation of different statements of the same principles by a multitude of trial judges, I respectfully adopt the following statement of the relevant principles by Stevenson J in the recent case of Shuetrim v FSS Trustee Corporation [2015] NSWSC 464: [37] The second limb is whether Mr Shuetrim has become incapacitated to such an extent as to render him unlikely ever to "engage in or work for reward in any occupation" (in the TAL policy) or to "engage in any gainful profession, trade or occupation" (in the MetLife policy) for which he is "reasonably qualified by reason of education, training or experience". As I have mentioned, it is common ground that the difference in wording in the definitions is not material. [38] Brereton J considered indistinguishable wording in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 and said at [76]: That phrase can be distilled into the following components. (1) unlikely (meaning a probability of less than 50%) [White v Board of Trustees[1997] 2 Qd R 659, 673] (2) ever to engage (meaning on a full-time regular basis) [Riley v National Mutual Life Association[1986] 4 ANZ Ins Cas 60-684, 74063; [Chammas v Harwood Nominees (1993) 7 ANZIC 61-175]; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, cf Wyllie v National Mutual Life Association of Australasia[1997] 217 ALR 324; Sayseng v Kellogg Superannuation[[2003] NSWSC 945]] (3) in any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers) [Cavill Power Products Pty Ltd] v Royle (1991) 42 IR 229]; Dolton v State Authority Superannuation Board [1995] NSWIRC 159 at [11.1]] and being work which he is likely to be able to obtain [Chammas, Nile v Club Superannuation, [64]]; (4) for which he is reasonably qualified by education, training or experience (as at the date of assessment) [Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751, Fernance v Wreckair Pty Ltd (No 2)(1992) 43 IR 300]). [39] Recently, Hall J also considered indistinguishable wording in Banovic v United Super Pty Ltd [2014] NSWSC 1470. His Honour cited, with approval, Brereton J's observations in Halloran v Harwood Nominees and added at [76]-[79]: Since the decision in Halloran v Harwood Nominees Pty Ltd, the reference in (2) in the above extract should include regular part-time work in addition to full-time work on a regular basis: see Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 at [54] (per Bathurst CJ). This must, however, be regular work and not casual: Chapman v United Super Pty Ltd [2013] NSWSC 592 at [28]. In determining the physical fitness of a person to do a particular type or class of work the issue must be examined in a realistic and not a mere theoretical way. In Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, Brownie AJ at [64] observed: As Hodgson J pointed out in Channas ... one must consider not just the theory that someone is physically fit to do particular work, but also the actual likelihood of that person obtaining employment, meaning full-time employment (or, I take it, substantially full-time employment, generally comparable with the plaintiff's employment before his 1996 injury) that was reasonably open to the plaintiff. Given the plaintiff's education, training and experience, the prospects of his actually obtaining employment in any of the jobs suggested by Dr Innes-Brown were remote, and perhaps non-existent. In Lazarevic v United Super Pty Ltd [2014] NSWSC 96, Hallen J observed at [108]-[109]: The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the Plaintiff would actually obtain paid employment for which he was qualified, by education, training or experience, and whether his condition disabled him from doing what he was qualified, by education, training or experience, to do. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory: Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, at [64]. Similarly, the concept must include that which is reasonably available and in an area in which it could be expected the insured, in the position of the Plaintiff, could reasonably apply. In Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173, McDougall J expressed a similar view, concluding, at [58], the "Court is required to take a realistic and common-sense approach. There must be a real prospect, and not merely some theoretical possibility, that the work will be available. It should not be work in some special light duties job created for the injured worker." In Diosdado Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, Nicholas J observed at [64]: The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (ie paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory. [40] To adopt the language used by Hall J in Banovic, it is incumbent on the insurers to consider relevant information and to make reasonable enquiries in order to ascertain whether there existed work or employment which Mr Shuetrim was reasonably capable of performing having regard to the nature and extent of his impairment, and whether such work was available (at [129], citing Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238 per Nettle JA at [66], Redlich JA and Davies AJA agreeing). [41] The range of work open to Mr Shuetrim is, the evidence in this case reveals, likely to be limited by his post-accident disabilities and the associated or consequential difficulty in competing in the open employment market. Thus, taking all these matters into account, the question in the present case is how likely is it that Mr Shuetrim would be able to find work or an occupation for which he is suited by his education, training or experience, taking into account all the limitations and practical realities of his post-accident situation (adopting the language of Hall J in Banovic at [132] and [133]). [42] I am concerned with the question of whether, on the evidence, it is probable that Mr Shuetrim would actually obtain work for reward for which he is qualified by education, training or experience (and not merely "special light duties") and whether his condition has disabled him from doing what he is qualified to do. I must take a realistic and common sense approach to the matter (for example see Nicholas J in Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 at [64]).

[31]

Mr Panos' evidence in chief

As I have stated above, Mr Panos lodged his claim for the TPD benefit the subject of these proceedings through his solicitor on 21 March 2012. He supported his claim with various completed forms required by the Trustee, and by including what appears to be a comprehensive set of documents, including various medical certificates and reports, that concerned his historical health and medical circumstances, his qualifications and employment, his injuries, upon the basis of which he hoped that the Trustee, and in due course the Insurer, would accept that he was totally and permanently disabled within the criteria in the Trust Deed and the Policy. From time to time thereafter Mr Panos augmented the documents that he provided to the Trustee in support of his claim by providing to the Trustee similar categories of document that had come into existence since the last occasion upon which he gave documents to the Trustee.
Additionally, Mr Panos provided to the Trustee a document called "statement of client" dated 21 June 2012, and a further document called "further statement of client" dated 15 July 2007, in which he set out the facts relevant to his claim, which in each case he declared to be true and correct to the best of his knowledge and recollection (or in the case of the later document, his belief).
Mr Panos' evidence in chief in support of his claim in the present proceedings took the form of an affidavit sworn by him on 10 September 2013, in which he swore that the contents of the two statements were true and correct (except for a minor correction, and for some additional evidence concerning a security guard course that Mr Panos had taken after the date of his first statement, and his inability to obtain employment as a security guard). Mr Panos also swore affidavits on 22 January 2014 and 4 June 2014.
It will be convenient to set out the substance of Mr Panos' statements, to establish the chronology of relevant events, and the primary facts concerning his application. These matters were largely not in dispute (the dispute being principally confined to the extent of Mr Panos' disabilities at the relevant date, and the impact of those disabilities on the likelihood that Mr Panos would ever obtain employment in an occupation for which he was reasonably qualified by reason of his education, training and experience.
Mr Panos was born on 15 July 1970 in Victoria.
He left school midway through year 9 in 1987, in order to seek full-time employment.
After leaving school, Mr Panos commenced work as a process worker, which he continued for close to 4 years. He worked full-time for 38 hours per week, working on a large metal press, and also with a jigsaw. He would stand for his entire shift, and was required to make repetitive movements with his arms, using the jigsaw and the metal press.
In 1998, he commenced work as a static security guard at a casino in Cairns. He did this work until 2001. For the majority of his shift he was required to stand, and at times conduct foot patrols. He did this work for four days, of 10 hour shifts, and then he would have four days off. He was constantly on his feet, and on occasion he had to remove patrons from the venue, which he was required to do by physically removing them using his body weight, physical strength and ability.
In 2001, he started doing contract work at a glass factory. He worked full-time. For the majority of his shift, he was required to stand, and to bend to about waist height in order to cut glass panels. He would then have to carry the panels, which could weigh between 10 to 20 kg, from the cutting station to storage.
In 2002, he started working at Woolworths as a picker. That was a hands-on job. He worked in a warehouse, and was instructed to pick certain boxes off the storage palates and stack them on an order palate. He was required to work to a time limit, and it was very physically demanding. Mr Panos was required to carry boxes weighing up to 20 to 30 kg, and walk briskly with them in order to meet stock order time limits, and order deadlines.
In 2004, Mr Panos started to work as a bar supervisor at the Hellenic Club. He did that for two years. Primarily he would serve drinks, clean and polish glasses, and move boxes of stock. When he was not serving patrons, he would transport boxes of alcohol which would weigh close to 20 kg. He was also required to clean the glasses, which required him to stack trays of glasses into the glass washer. That tended to strain his back and legs, as he was required to work in a confined space, and was required to work at speed.
In 2004, Mr Panos injured his knee whilst working at the Hellenic Club. He was assaulted at work, and attended hospital immediately after the assault. Mr Panos had knee surgery for the damage to his knee, and subsequently received a $33,000 payment for workers compensation in 2006. Mr Panos said that his knee injury has always given him trouble since the date of the injury.
Mr Panos commenced employment on 21 August 2006 as a nurse's assistant with South East Sydney Area Health Service, working at Sutherland Hospital ("Sutherland Hospital"). He worked full-time hours of 38 hours per week. Mr Panos said that this job primarily involved restocking each ward in the hospital. On any given day he would receive close to 4 palates of new stock. He would then need to bend down and pick up boxes off the palates, and then allocate them to the various wards. Mr Panos would then need to carry this stock to each ward, and if the box was too heavy to carry, he would wheel it on a trolley provided by the hospital. Mr Panos said this was very hands on and physically intense work. He found that even in good health this job was physically tiresome, and he would feel quite spent by the end of the week.
On 18 March 2010, Mr Panos was involved in a car accident, as a result of which he injured his lower back, neck, left and shoulder, and he broke 4 teeth. He made a claim for workers compensation for that incident, which was still in the process of being processed at the time of his statement.
On 26 May 2011, Mr Panos was involved in a second motor vehicle accident. In that accident he sustained injury to his pelvis and chest. Mr Panos did not make a separate workers compensation claim in respect of this injury. He said that, in some way that was not explained, the later injury was taken into account as part of his initial workers compensation claim.
The injury to Mr Panos' left shoulder that occurred in March 2010 required an operation on 2 September 2011.
Mr Panos said that, following his March 2010 car accident, he was under a lot of stress, and experienced very low moods, because of the accident. He was diagnosed with depression and insomnia in about May 2010.
Mr Panos ceased to work full time with Sutherland Hospital on 18 March 2010. He never returned to full-time hours at the Hospital.
After eight months off work, Mr Panos returned to the Hospital in October or November 2010, for one day per week. Between December 2010 and February 2011, Mr Panos progressed to working three days per week, for four hours in length of each day. From February 2011 to his second accident on 26 May 2011, Mr Panos progressed to working four shifts per week at six hours each shift.
Mr Panos ceased work altogether with Sutherland Hospital on 26 May 2011 after his second accident, and has not returned to work at the Hospital since.
Mr Panos set out in detail in his statement the medication that he had been prescribed as at 21 June 2012. It is not necessary to relay that evidence.
Thereafter, Mr Panos set out in some detail in his initial statement the physical consequences of the injuries that he suffered that caused him to cease working at Sutherland Hospital, and the effect that he believes those consequences have had on his capacity to obtain employment, and the unlikelihood of his ever being engaged in work for reward in any occupation or work for which he was reasonably qualified by reason of education, training or experience.
Mr Panos said that, from the onset of his injuries, which I take to be 18 March 2010, to the date of his statement, he has had trouble twisting or turning his neck repetitively. He can only twist his neck 3 to 5 times, before the onset of significant pain. That causes him difficulty in driving. He can probably drive for a maximum of 40 minutes or so. He finds that anything more than this will cause pain to develop in his neck, lower back and left shoulder. He needs to move around in the seat, as it is a confined space, and he has trouble looking in his blind spot and to his sides, as a result of his neck injury.
Additionally, Mr Panos said, since his injuries caused him to cease working for Sutherland Hospital, he has been unable to sit in the one position for more than 40 minutes to an hour. After that he needs to lie down and rest, and recharge his batteries. Within 40 minutes or so the pain in his back and neck will begin to radiate, and become unbearable.
Standing for anywhere up to 40 minutes will cause Mr Panos to suffer pins and needles down his leg, which is referred from his lower back pain. He also gets aching pain in the neck and shoulder, if he stands or sits in the one position for too long. That condition has not improved since he ceased work in May 2011.
Mr Panos said that he does not have good days and bad days; rather every day has been a bad day since May 2011. On days when the pain levels are greater, he is basically bedridden. Mr Panos said that, on these occasions, he will spend half to the majority of the day lying in bed, just trying to rest and ease the pain. That causes him to miss meals. The combination of damage to his teeth, his depression, and being bedridden because of his back, shoulder and neck pain causes his eating habits to be irregular.
Before he suffered his injuries, Mr Panos and his partner would do the household chores equally. He would do the majority of the gardening and vacuuming. Following his cessation of work in May 2011, Mr Panos finds it very difficult even to set the table and wash the dishes. Mr Panos said that, as far as gardening is concerned, he can no longer manicure the garden or mow the lawn. Mr Panos and his partner are required to obtain contractors to do the gardening at great financial expense. That is a significant drain financially, and on their relationship. Mr Panos said that their dismal financial situation had also adversely affected his sex drive, which has contributed to his depression and insomnia.
Mr Panos said that any form of repetitive movement exacerbates his condition, and he will need to avoid repetitive tasks, otherwise he will be in immense pain. That has been the situation since the onset of his injuries, and the further aggravation in May 2011
Significantly, Mr Panos said that, while he may be able to lift 25 to 30 kg from the ground to waist height, he can only do this once or twice before he will develop excruciating pain in his back, shoulder and neck.
Mr Panos is now unable to take part in any of his previous pastimes or hobbies. They included going swimming three days a week, and playing tennis around four days per week. Mr Panos would also go to the gym close to 6 mornings a week, for one to one and a half hours at a time. He would also engage in salsa dancing in the evenings on average twice a week. He would engage in gardening on the weekends on a regular basis.
Mr Panos said: "Since May 2011 I have not been able to do any of the hobbies that I previously enjoyed". That statement would suggest that Mr Panos has been unable to go to the gym since the time of his second car accident. There is some scope for argument as to whether Mr Panos was only trying to convey that he could not go to the gym close to 6 mornings a week for one to one and a half hours at a time, rather than that he could not go at all. This is a significant issue that will require further attention below.
Mr Panos said that his physiotherapist had suggested that he try to walk regularly to alleviate his back pain. However, the problem is that, since May 2011, Mr Panos has not been capable of walking for any more than 20 to 25 minutes. If he does so, the pain in his back becomes too severe, and he is unable to continue. He will be required to go home and lay down in order to relieve the pain that develops in his back. That situation had not improved up to 21 June 2012. This aspect of Mr Panos' evidence is also significant, as in par 5 of his first affidavit he said that, since the signing of his statements, "my injuries and disabilities have remained the same". Accordingly, Mr Panos' evidence is that he has not, since May 2011, been able, and remains unable, to walk for any more than 20 to 25 minutes, without the pain becoming so severe that he is unable to continue.
Mr Panos said that, due to his physical limitations and his condition, there is no way he would be able to return to his previous employment on a regular basis. It would be impossible for him to attempt to carry boxes of stock from ward to ward. He would be unable to walk for more than 20 minutes, before he would need to sit down, or lie down, and rest his back, shoulder and neck. He would not be able to sit or stand in the one position for long enough to complete any form of work effectively enough to be employable.
Mr Panos then addressed the possibility that he could find alternative work to that which he undertook while he was employed by Sutherland Hospital, based on his education, training or experience. He identified the possible types of employment as a process worker, grocer or retail shop assistant. He said that it would be impossible for him to undertake that work on a regular basis. He would not be able to pack and unpack the new stock orders, because of his back and neck pain; nor would he be able to assist with any cleaning or stocking of shelves at the workplace, because of his shoulder pain. He would not be able to stand or sit in the one position for more than 40 minutes or so. He claimed that no one would realistically hire someone who needed to take as many regular breaks as he does to reduce their pain levels. Lastly, he said that he had very little customer service experience, and what limited ability he did have has been compromised by his depressive state and irritable short temper, due to his pain levels and medication.
In relation to alternative types of employment, such as taxi driver or courier, Mr Panos said that he had always involved himself in labour intensive roles, and had relied on his physical ability to get by. He said that it would be necessary for him to retrain in order to be a taxi driver. He would not be able to sit in a driver's seat for more than 40 minutes, before he would need to get out and attempt to relieve the pain that would radiate in his body. He said that he would be completely unsuited to these jobs, because of the physical limitations.
He distilled his position into the claim that he would not be able to maintain any type of work for more than 40 minutes to an hour, before requiring a rest. He would need to use a combination of sitting, standing or lying down, in order to relieve the pain that would radiate from his back, shoulder, knee and neck. Even that would not completely alleviate the pain, and he would still be in pain throughout the day. If he continued attempting to work, that would exacerbate his pain, and he would be housebound for several days afterwards. He doubted that any employer would hire someone for an hour or so here or there for one or two days per week, when they were feeling up to it.
Mr Panos said that he doubted that he could successfully retrain in any alternative form of employment, as his computer skills were almost nil. He said that his reading and writing skills are also quite basic, or lower than average. He did not complete year 9 at school. He had not, by 21 June 2012, had any further education, except for a first aid certificate and an OH&S course. He obtained the first aid certificate in 2009, as that was required for his nursing assistant work. He did the occupational health and safety course in 1989, while he was a process worker. The course lasted one week.
Mr Panos expressed the following conclusion, in par 39 of his first statement: Therefore, based on my previous training, education and experience there is no job that I would be able to accomplish on any regular basis in my locality. I doubt I would be successful in any retraining as I have always relied on my physical ability for previous employment. Furthermore, my depression and medication affects my concentration, memory and problem solving abilities. My condition would not allow me to sit through a training course or concentrate long enough to retain any new information.
In his affidavit, Mr Panos explains that, after the date of his first statement, on 4 February 2013, at the suggestion of his workers compensation and rehabilitation provider, he commenced a security guard course with a training Academy in Granville. He said that he was unable to complete the two week course on a full-time basis because of his medical condition, and he was permitted to complete the course over a 12 week period, by attending a couple of days a week, when he was physically able to do so. He said that, on completion of the course, he failed the final test three times, before ultimately passing the course in around mid-May 2013. Since that time, Mr Panos has not been able to find work as a security guard. He has been seeking a job through his rehabilitation provider, as part of his injury treatment plan. When he has listed his injuries, limitations and physical capabilities, in the application forms for employment, he has never been offered a position, or even an interview. Mr Panos explained why his physical limitations prevented him from having the ability to perform work as a security guard on a permanent regular basis.
In his further statement of client dated 31 January 2013, Mr Panos explained the circumstances in which he undertook employment with the Hillside Figtree Nursing Home, starting on 13 July 2012, after the date of his first statement. He started as part of his job seeking training with his workers compensation insurer. Initially, he engaged in an unpaid six week return to work course. Mr Panos said that he was engaged in an aged care training course, which was different from his experience working at Sutherland Hospital. When he was working at the hospital, he was merely involved in stocking supplies for the nurses. He had very rare patient contact, and was not involved in patient care. Mr Panos completed the training course, and consequently was guaranteed a minimum of two shifts per week at the nursing home. He was required to reobtain his first aid certificate, which had expired. He said that his work involved light, restricted duties.
In around October 2012, Mr Panos undertook his first shift at the nursing home. The shift was eight hours of work. Initially he did two shifts per week, but there were some occasions when he would undertake 3 to 4 shifts per week, which would be up to 32 hours per week at a maximum. Mr Panos said that, after he had completed approximately 10 shifts for the Nursing Home, he started complaining to management that his shoulder condition was giving him trouble. Once he notified the Nursing Home of the recurrence of his shoulder condition, he did not receive a call to undertake any further shifts at the Nursing Home. Mr Panos said that the Nursing Home requested that he complete a shift on 18 and 19 January 2013, but on 19 January 2013 he was requested to hand in his shift card, as the Nursing Home would prefer someone else to undertake the work that he was doing.
Mr Panos said that the main roles and responsibilities in which he was engaged were patient care, assisting with feeding patients, showers throughout the day, and also making beds. Although he was on the restricted light duties, he was still in significant shoulder, neck and back pain throughout the day. He made his employer aware of his circumstances.
The conclusion that Mr Panos expressed in par 10 of his further statement, concerning this work was: "Therefore the work that I was undertaking was on no regular, consistent or sustainable basis".
In his 22 January 2014 affidavit, Mr Panos said that he ceased to return to work at the Nursing Home on 31 May 2013, due to further aggravation of his back condition from the tasks and duties of that job.

[32]

The relevant date for determining whether Mr Panos was TPD

An essential step in the determination of whether Mr Panos is entitled to the TPD benefit is to ascertain the date at which the Policy requires that it be determined whether Mr Panos satisfied the TPD definition. The parties called this date the "relevant date".
The relevant date is essential to the identification of the claimant's qualifications by reason of education, training or experience, as education, training or experience that occurs after that date is irrelevant, and must be ignored. Equally, the consequences of any injury or illness that occur after the relevant date must be ignored.
The parties implicitly agreed that the relevant date was the date that occurred 6 months after Mr Panos first became absent from his occupation, for the purposes of the definition of TPD in the Policy. In this they implicitly accepted, as do I, the conclusion reached by Stevenson J in Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [64]-[67]; and see the authorities considered by his Honour.
An issue was raised by Mr Panos' submissions, perhaps unnecessarily, which complicates the identification of the relevant date in this case. Mr Panos put alternative submissions as to the correct relevant date. The Insurer in its final submissions agreed with one of the alternative dates suggested by Mr Panos in his final submissions, albeit not the alternative that Mr Panos suggested in his outline opening.
For the reasons that follow, I accept the submission put by the Insurer, so that the relevant date was 26 November 2011.
As the parties agreed that the amount of the TPD benefit in this case is $140,700, there is no need for the court to determine the Incident Date, which is a date that is relevant to the determination of the amount of the TPD under cl 14.4 of the Policy.
In his outline opening (par 17), Mr Panos submitted that the relevant date was 6 months after 6 June 2013, when he ceased employment by the Nursing Home, being 6 December 2013. In his closing submissions, Mr Panos submitted that the relevant date was either that date, for 6 months after he commenced his absence from his occupation at the Sutherland Hospital on 26 May 2011, being 26 November 2011. The Insurer submitted that the correct relevant date was 26 November 2011.
The potential significance of the issue arises out of the fact that, according to Mr Panos, between the two dates he obtained a first aid certificate and retraining in aged care, following a 6 week course in about July 2012. Additionally, between February and May 2013 he undertook a course to qualify himself as a security guard. If the later date is the true relevant date, then the issue of whether Mr Panos satisfied the definition of TPD would have to be answered on the basis that his education, training and experience included these additional qualifications.
On a fair reading of Mr Panos' closing submissions, it is probably fair to say that Mr Panos preferred the outcome that the relevant date was the earlier one, 26 November 2011. That would be in Mr Panos' interests, as it would exclude the later training from his education, training and experience.
Mr Panos submitted that the possibility of the alternative, later, relevant date arose out of the possibility that "employment and activity are used conjunctively" in the definition of "Occupation" in the Policy. With respect, I do not follow the reasoning behind this argument. The alternatives "employment" and "activity" in the definition are included because the Policy is intended to be applicable to employed and self-employed persons. The word "employment" is not apt to refer to self-employed persons, and for that reason "activity" is also included.
I prefer the submission put by the Insurer for a number of reasons. First, as the insurer submitted, Mr Panos identified 26 May 2011 as the "Date last worked" in his initial Claim.
Secondly, although the pleading of the issue is somewhat indistinct, for the reasons I considered above in connection with Mr Panos' statement of claim, the only relevant date pleaded is the earlier date. Mr Panos' second amended statement of claim refers to his employment by the Nursing Home, between October 2012 and 31 May 2013, but only on the basis, as stated in par 22, that Mr Panos contended "that the work carried out at the Nursing Home was not regular, consistent or sustainable work and was in fact a failed rehabilitation attempt". That allegation is inconsistent with a claim that it was the commencement of Mr Panos' absence from employment by the Nursing Home that marked the beginning of the 6 month period to determine the relevant date.
Thirdly, in these circumstances, Mr Panos' claim, in his outline opening, immediately before the commencement of the hearing, that the relevant date was 6 December 2013, was ineffective to make that claim an issue in the proceedings.
It follows that, if it is correct that Mr Panos undertook retraining as part of his employment with the Nursing Home, that retraining will be irrelevant for the purposes of determining his qualifications by reason of education, training or experience. As I understand it, however, there is a contest between the parties as to whether what occurred at the Nursing Home involved retraining.
The acquisition by Mr Panos of the first aid certificate, and his undertaking the security course, will not be relevant.
It remains the fact, however, that Mr Panos did undertake employment with the Nursing Home, and the circumstances of his employment may have relevance in various ways to the issue of whether, as at 26 November 2011, Mr Panos was incapacitated to such an extent as to be unlikely ever to engage in or work for reward in any occupation or work for which he was reasonably qualified by reason of his education, training or experience."

[34]

Procedural fairness

As I have explained above, the parties did not deal with Mr Panos' original claim that the Insurer constructively denied his TPD claim because of its delay in determining the claim. Mr Panos' original constructive denial claim was abandoned in his second amended statement of claim.
However, Mr Panos made his original claim for the TPD benefit on 21 March 2012. He filed his statement of claim on 19 April 2013 and served a substantial amount of evidence in support of his claim on the Insurer before, on 6 September 2013, the court fixed Mr Panos' claim for hearing on 11 March 2014. The Insurer's 'procedural fairness' letter was dated 5 March 2014. That date was some 2 years after Mr Panos made his claim; 1 year after the proceedings were commenced; and 6 months after the matter had been set down for hearing. It was about 7 weeks after the Insurer had received the 16 January 2014 response from Dr Kana, which was the last material that it received before it wrote the letter. It was 6 days before the commencement of the hearing.
The Insurer received Dr McBurnie's report on about 28 November 2012 and the report prepared by Ms Peterson and Ms Paterson on about 10 October 2013. The Insurer therefore had the report of its consultant occupational physician, and the vocational assessment report that it commissioned by October 2013. It is true that, from time to time, Mr Panos submitted additional evidence, and the Insurer became aware that documents had been subpoenaed from third parties and been produced to the court, which might have some bearing on the validity of Mr Panos' TPD claim.
However, there is no apparent reason why the Insurer took so long to make its determination, and more importantly, given that it became aware on 6 September 2013 that the court had fixed the matter for hearing some 6 months later, I can see no justification for the Insurer to wait until 5 March 2014 before it sent its 'procedural fairness' letter to Mr Panos.
At the time Mr Panos and his legal representatives received the 5 March 2014 letter, they must have been engaged in the preparation of Mr Panos' case, which at that stage was based upon a claim of constructive denial.
The Insurer gave Mr Panos until 5 PM on 7 March 2014 to provide to it any further submissions and evidence in support of his claim. Whatever the time of day that Mr Panos' solicitors received the 5 March 2014 letter, Mr Panos was given no more than about 2 days to respond. That was manifestly inadequate.
The Insurer asserted in its 5 March 2014 letter that all of the evidence that had been listed with an asterisk had been given to Mr Panos under cover of a letter dated 13 September 2013. This letter was in evidence. It refers to service of the Insurer's tender bundle, but it does not identify the evidence that was enclosed in the tender bundle. I assume the reference is to the Insurer's tender bundle in these proceedings, at least as at the date of service. I accept that Mr Panos and his legal representatives had had that material for some time. Indeed, a substantial portion of the evidence had been provided to the Insurer in support of Mr Panos' case.
The Insurer said in its letter: "We particularly draw your attention to the material in this list which may be adverse to your claim".
Plainly, the letter did not identify any parts of the material that the Insurer considered was adverse to Mr Panos' claim.
Furthermore, in my judgment, it could not be said that the parts of the material that were adverse to Mr Panos' claim were always obvious. It may be true that to the experienced reader, as Mr Panos' legal representatives were, some parts of the material would have been seen to have been objectively adverse to Mr Panos' case (for example, parts of the reports of Dr McBurnie and Ms Peterson and Ms Paterson). However, ultimately the question of what evidence was adverse to Mr Panos' claim was a subjective matter for the Insurer. One characteristic of the material, considered as a whole, is that much of it is inconsistent, as different medical advisers have formed inconsistent, or if not inconsistent, different, views about Mr Panos' medical condition and prognosis over the years.
Particularly considering the brevity of time that the Insurer gave Mr Panos to respond, in my view it is clear that Mr Panos and his legal representatives had no real opportunity to analyse the material, and provide an effective response in the time available.
I must not beg the relevant question, by acting upon the basis that the Insurer did not identify any adverse evidence in the materials referred to in the 'procedural fairness' letter, and failed to give Mr Panos any reasonable time to respond, without considering the issue whether the Insurer's duty to act reasonably towards Mr Panos obliged it to give any notice to Mr Panos at all.
I have noted the observation of Hodgson J in Chammas, to the effect that the authorities do not require that natural justice in the full sense be given by an insurer, but that some attention to the requirements of natural justice is part of fairness and reasonableness in dealing with a case such as this.
Mr Panos' application for the TPD benefit presented by no means a straightforward case. The determination of the case involved the intersection of a number of strands of evidence - Mr Panos' education, training and experience; his employment history; the cumulative effect of a series of injuries; his own psychological responses to those injuries; his subjective experience of pain and discomfort; his physical limitations; the identification of occupations for which he was reasonably suited; the actual availability of positions reasonably accessible by Mr Panos; and the actual practical likelihood that he would ever be employed on a permanent basis in any of those occupations. While it was clearly possible for Mr Panos and his legal advisers to discern that aspects of the evidence that the Insurer had were adverse to his case, they were not in a position to anticipate the aspects of the evidence that the Insurer would consider to be significant, the weight it would give to particular parts of the evidence, and importantly the credit that it would give to Mr Panos' own statements. I do not think that Mr Panos was in any realistic position, in any convenient and inexpensive way, to anticipate the terms of the first declinature, and to put a response to the Insurer that addressed the adverse issues that were likely to motivate the Insurer.
In my view, in the circumstances of this particular case, where the consideration by the Insurer of Mr Panos' claim had become so protracted, and it had accumulated over the time such a large amount of disconnected, and in many cases significantly inconsistent, evidence, reasonable fairness required that the Insurer would provide the Trustee and Mr Panos with at least a concise outline of its position in relation to the evidence that it regarded to be significant, including as to the medical evidence that it preferred, the aspects of Mr Panos' statements that it questioned, the extent of Mr Panos' disabilities that it accepted, and the approach it was minded to take concerning the real prospects that Mr Panos would actually gain employment that was reasonably suitable on the basis of his education, training and experience, and then give Mr Panos adequate time to make a focused response. In particular, in my view, the same reasoning that supports a conclusion that an insurer should not rely upon a medical report that it has obtained, without giving the claimant an opportunity to respond to the report, supports the conclusion that the insurer should not act upon the conclusion that it does not believe the evidence personally given by the claimant, without giving the claimant a warning, and an opportunity to respond specifically to the reasons why the insurer is not inclined to accept the claimant's evidence.
I add that one of the additional pieces of evidence that the Insurer provided to Mr Panos was the report of Dr Kana dated 16 January 2014, in which Dr Kana had responded to that part of the report by Ms Peterson and Ms Paterson that dealt with Mr Panos' prospects of future employment. I will consider that report in more detail below. For the present it is sufficient to note that Dr Kana's report is very obscure, by reason of its brevity. In my view, assuming even that Dr Kana was readily available, it would probably not have been possible for Mr Panos to confer with Dr Kana, and prepare an effective response to Dr Kana's report, in the 2 days that were allowed. Even though Dr Kana's responses were generally supportive of Mr Panos' claim, they were by no means persuasive, by reason of their obscurity (which is a proposition borne out by the first declinature, which effectively made that point). Dr Kana's support was obviously crucial to Mr Panos' claim. This basis for finding that the Insurer did not act reasonably is closely aligned with the comments made in the authorities that I have discussed above in relation to Santow JA's point (g).
In the Insurer's 17 June 2014 response to the Trustee's 21 May 2014 letter, it said in respect of this issue: "[the Insurer] considers it was not unreasonable for it to expedite its decision in view of the fact that there was an impending hearing date". That is not an adequate justification for the Insurer's conduct. What it suggests is that, at the last minute, in order to head off a constructive denial claim, the Insurer acted precipitately to place itself in the position where it could decide the claim, before the commencement of the hearing. In taking that course, the Insurer acted entirely in its own interests, and sacrificed the entitlement of Mr Panos to receive any 'procedural fairness' at all. Thereby, the Insurer breached its duty of utmost good faith to Mr Panos.

[35]

Dr Kana's 16 January 2014 report

On 25 November 2013, the Insurer wrote to Dr Kana, and sent copies of Dr McBurnie's report, and the vocational and functional report dated 16 October 2013 to him, and asked him to review the reports, and provide his responses to questions that it posed concerning each of the reports. I will not set out the questions, but I note they were quite detailed, and the Insurer invited Dr Kana to provide substantive responses. In particular, the Insurer asked Dr Kana to say whether Mr Panos was able to perform the various roles that had been identified as being within Mr Panos' education, training and experience.
Dr Kana provided a response dated 16 January 2014, which was, with respect, obscure and not properly responsive to the questions he had been asked. Dr Kana said: Seen Dr Dewan - advised to have an MRI of Lower back advised not to do any lifting work until MRI viewed. Full-back fusion from L4, L5 disk profusion from MVA. No Aged Care work. Not treatment recommended at this stage. Retraining into another job. No Security Officer job. No standing for more than 1 hour. No heavy lifting. Repetition work - unable to do. Reduced hours/days. Following retraining, education. Lower backache - preventing him from doing many of the duties listed.
The part of the Insurer's first declinature that led to a complaint from Mr Panos was where it said: We asked Dr Kana to comment on the vocational options identified by Ms Peterson and Ms Paterson in their vocational and functional assessment report (discussed below). Although presented with all the roles identified by is Peterson and Ms Paterson, Dr Karma only discounted the occupations of assistant in nursing and security officer in his report dated 16 January 2014. He was silent as to the balance of the roles. Dr Kana also noted that the plaintiff was restricted from performing lifting or "work" until a further MRI had been performed on his lower back. Unfortunately Dr Kana did not elaborate on what he intended by using the word "work".
The Trustee's complaint about this statement was that it was not a fair summary of Dr Kana's report, and that, if the Insurer had any doubt about the meaning of Dr Kana's report, it should have asked for an explanation from him.
It must be remembered that Dr Kana was Mr Panos' treating general practitioner, and Mr Panos had placed substantial reliance on the various reports prepared by Dr Kana over the years.
With due respect to Dr Kana, the meaning of his 16 January 2014 response is not clear. He does not seem to have answered all of the questions posed by the Insurer, and the general responses he gave were so vague as to be virtually meaningless in some cases. Furthermore, although it is true that Dr Kana did not mention all of the types of employment identified by Ms Peterson and Ms Paterson, the general tenor of his response was that Mr Panos could not do the work suggested (although I acknowledge he did not express himself clearly) and in relation to his existing previous aged care work, Dr Kana recommended retraining into another job.
In my view, the description of the effect of Dr Kana's response in the first declinature is not accurate, and Dr Kana's response was so inadequate that it called for further elaboration. That is particularly so in view of the fact that the Insurer itself had recognised the need to obtain a detailed response from Dr Kana to the Insurer's own expert reports, and the Insurer had already taken so much time to process Mr Panos' claim, that another month or so would make little difference, were it not for the impending hearing.
I am satisfied that the Insurer did not comply with its duty of utmost good faith in acting upon Dr Kana's response, in circumstances where its use of the response shows that it did not properly understand it, and it did not take the trouble to ask Dr Kana to respond properly, or, even better, send the response to Mr Panos, with enough time to allow him to ensure that Dr Kana responded properly.

[37]

Dr Giblin's 3 and 18 February 2014 reports

In the first declinature, the Insurer noted Dr Giblin's 7 May 2012 and 15 October 2012 reports. Dr Giblin had stated, without any real explanation, that he considered that Mr Panos would never return to work within his education, training or experience.
The Insurer also stated that it was aware that Mr Panos had served further reports of Dr Giblin in the proceedings. It added: "however, he did so after consent was requested for access to subpoenaed documents for the purposes of determining the claim which you refuse to provide. It is not apparent to us whether service of the further Dr Giblin report was solely for the purposes of the proceedings or whether the member intended those reports also to be considered by us in reaching our decision in relation to the claim".
I will refer to Dr Giblin's 3 February 2014 report in more detail below. It is sufficient to note that Dr Giblin again stated his opinion that Mr Panos satisfied the TPD definition, and he gave reasons for that opinion, albeit relatively briefly so.
Mr Panos had provided to the Insurer previous evidence of Dr Giblin's opinion, and that was sufficient to inform the Insurer that Dr Giblin's evidence was an important part of the support for Mr Panos' claim.
The Insurer referred to the dispute that existed between itself and Mr Panos, as to whether the Insurer should be given access to the documents produced by third parties to the court in answer to subpoenas, for the purpose of determining Mr Panos' TPD claim. Mr Panos was resisting that request. I infer from the relevant part of the first declinature that the Insurer was at least discontented by the stance Mr Panos had taken.
Be that as it may, however, in my view it is quite clear that, as Mr Panos actually served Dr Giblin's additional reports on the Insurer, in circumstances where it had not yet made its determination, the Insurer was entitled to take those reports into account, and indeed was bound to do so. There was no logical basis for the Insurer to take the stance that Mr Panos' refusal to permit the Insurer to have access to documents produced by third parties prevented it from acting upon a doctor's reports that Mr Panos had actually served on the Insurer, so that it had that material.
Furthermore, it is plain that, if the Insurer had any doubt as to whether or not it should take into account evidence as apparently significant as Dr Giblin's reports, it was bound to seek clarification from Mr Panos, and not simply to ignore the evidence in making its determination.
The Insurer failed to comply with its duty of utmost good faith, in failing to take into account the additional reports of Dr Giblin. I base that conclusion on the objective conduct of the Insurer, but, in addition, I infer that the Insurer was partly actuated by its displeasure at being denied by Mr Panos the opportunity to inspect the documents produced by the third parties.

[45]

Was Mr Panos' TPD at the relevant date?

It will now be necessary for the court to determine whether, as at the relevant date, 26 November 2011, Mr Panos had become incapacitated by his injuries to such an extent as to render him unlikely ever to engage in or work for reward in any occupation or work for which he was reasonably qualified by reason of education, training or experience.
It will be necessary to bear in mind the significant differences between the process that the court is required to adopt in making that determination, and that which had to be applied by the Insurer, as the differences may have a significant bearing on the outcome of the dispute.
The process that must be applied by the Insurer is akin to administrative determination. The process is not adversarial. The applicant is required to provide materials to assist the Insurer to reach the necessary satisfaction. There is no burden of proof on the applicant in the strict sense. The process is in some respects inquisitorial, but with the difference that the Insurer has a positive duty to act with utmost good faith (as does the Trustee, and by implication, the applicant). The process is in some respects collaborative. The Insurer must take reasonable steps to ensure that it protects the interests of the applicant, and not just its own. The Insurer's consideration of the issues need not comply with all of the strictures to which a judicial determination is subject; in particular, the rules of evidence. The Insurer does not need to publish reasons that satisfy the requirements applicable to the reasons necessary to support a judicial decision. The Insurer must give adequate and clear reasons, but their validity will not be determined by the court as if on appeal.
Importantly, the Insurer may have regard to its own expertise, so far as that expertise is adequate to support a proper determination, and does not require independent expert evidence.
The Insurer may resolve uncertainties and conflicts of opinion by commissioning further investigations, and interrogating the experts, who have already provided opinion evidence.
While, in a practical sense, the applicant has a burden to put sufficient material before the Insurer, it is not expected that the applicant will bear the cost burden of a full forensic investigation and proof. Much of the cost of the determination will be an overhead of the Insurer (or the Trustee).
The nature and amount of the supporting material that the applicant will be required to provide to the Trustee, for provision to the Insurer, will depend upon the facts of each case, and there is no basis for making valid generalisations.
However, in many cases (as in Mr Panos' case) relevant factual and medical evidence is likely to have been accumulated over time, in the ordinary course of the applicant's employment, his or her illness or injury, and the steps taken to treat the applicant. Relevant materials may be produced as part of the normal process of determining claims made by the applicant for workers compensation.
Not only will it be natural for the applicant to provide all of this material to the Trustee, and then the Insurer, to support his or her TPD claim, but the applicant's own duty to exercise utmost good faith may require it.
Although cases may occur where it appears desirable for the applicant to commission expert medical and other opinion to support the applicant's TPD claim, it is more likely to appear sufficient for the applicant to supply the materials that have been produced over time, in the ordinary course (not least for reasons of cost), and to rely upon the Trustee and the Insurer to commission substantive expert reports where that is thought necessary, in the expectation that the results will be supplied to the applicant for response.
That approach was substantially adopted by Mr Panos in the present case.
Mr Panos supplied supporting materials with his original application for the TPD benefit on 21 March 2015, and in subsequent tranches when additional relevant materials came to hand.
The only materials that were not supplied to the Trustee and the Insurer in this way were the documents produced by third parties on subpoena in these proceedings which, by order of the court, were only released to the Insurer after it made its determination of Mr Panos' TPD claim.
Once it becomes necessary for the court to decide the question, because the court has set aside the determination made by the Insurer, the change in the nature of the process of determination may have significant forensic consequences.
For one thing, the applicant becomes subject to a conventional burden of proof, as a plaintiff in contested proceedings. I respectfully adopt the following passages from the judgment of Stevenson J in Shuetrim v FSS Trustee Corporation [2015] NSWSC 464 at [43] to [50]: Onus [43] There is, of course, a distinction to be drawn between the "legal onus" on the one hand, that is "the burden of proof as a matter of law and pleading … of establishing a case", and the "evidentiary onus" of sustaining "the burden of proof in the sense of introducing evidence" on the other. The former "is always stable" but the latter "may shift constantly" (Purkess v Crittenden [1965] HCA 34 ; 114 CLR 164 at 167-168 per Barwick CJ, Kitto and Taylor JJ, citing Phipson on Evidence (10th ed 1963, Sweet and Maxwell) at [92]). [44] The TPD definitions in the policies require that Mr Shuetrim provide "proof "to the satisfaction of TAL and MetLife that he is relevantly incapacitated. [45] It was thus for Mr Shuetrim to place before TAL and MetLife material which would satisfy them that Mr Shuetrim fell within the TPD definition. [46] In that sense, there was an evidentiary onus on Mr Shuetrim (for example see Hallen J in Lazarevic at [159]). [47] But prior to the commencement of proceedings, no question of legal onus arose. As Young AJ said in Chapman v United Super at [70]: As to the onus of proof, the better view would seem to me that no question of onus is relevant when considering the Trustee's decision. As Bryson J said in Vidovic v Email Superannuation Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 23 February 1995) at 13: The formation by the trustee of an opinion is not analogous to judicial or arbitral decision of a disputed question … There is no onus of proof on any person; there are no adversaries. [48] However, as Mr Bleasel, who appeared with Mr Coombes for Mr Shuetrim, accepted, once proceedings were commenced Mr Shuetrim bore the onus at both stages of the enquiry: first to show that the insurers had acted in breach of their obligations of good faith and fair dealing (by not making a decision until December 2014/January 2015, or by the making of those decisions); and, second, if those matters were made out, to show that he was in fact TPD at the relevant time. [49] Nonetheless, an evidentiary onus may remain on the insurers to produce some material to show that there are specific occupations for which the applicant for TPD benefits is likely suited. [50] Thus, in the particular context of definitions such as the TPD definitions in the policies in this case, Marks J said in Gedeon v First State Super Trustee Corporation [2005] NSWIR Comm 62: 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 … 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 … [I]t is necessary to demonstrate that there are specific occupations available to a claimant … 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, … by reference to any medical or other condition to perform the work associated with that particular occupation. (at [32])
The court is required to make the determination on the basis of the conventional adversarial approach. It is for the applicant to support his or her case by the necessary evidence. The Insurer ceases to have any positive obligation to assist the applicant in the presentation of his or her case.
Importantly, the court has no expertise that permits it to make expert determinations of questions that cannot properly be decided without appropriate expert opinion evidence, without that evidence being provided. The entitlement of the court to draw its own conclusions based upon primary medical records is likely to be significantly restricted. The court is likely to require the assistance of appropriate expert evidence to make findings about the significance of primary medical facts and records.
There is likely to be a real risk, when the question that requires determination passes from whether the Insurer has made a proper determination, to whether the court itself should find that the criteria for the entitlement to the TPD benefit have been satisfied, that evidence provided by the applicant to support a favourable determination of the claim by the Insurer may no longer suffice, when the question must be determined by the court.

[46]

The evidence

It is necessary to analyse the evidence that is before the court on the question of the nature of the disabilities suffered by Mr Panos, as a result of his various injuries, his prognosis for recovery, and the likelihood that Mr Panos will be unlikely to ever be able to engage for reward in any occupation or work for which he was reasonably qualified by reason of education, training or experience at the relevant date.
This evidence is likely to include various types of medical records produced in the ordinary course of treating Mr Panos over time, notes produced by treating doctors and referred specialists concerning Mr Panos' recovery, as well as the reports of medical professionals and occupational therapists concerning Mr Panos' ability, in the immediate and longer term, to return to work, as well as his entitlement to worker's compensation. Thus, the available records may have been, as is the present case, prepared for many different purposes, and may have addressed different questions.
There may be very significant restrictions on the ability of a court to process this information in a legitimate way, without having the benefit of the guidance of relevant expert opinion, concerning the meaning and significance of the outcome of medical investigations that have been undertaken, particularly in relation to their relevance to the determination of the specific question that is before the court as at the relevant date. The court is likely to be drawn into confusion and error if it trespasses too far into an independent analysis of all of the available material - not least because the absence of the proper expertise on the part of the court is likely to make it blind to its own errors.
In the present case, the evidence was primarily presented to the court in the form of a court book prepared by Mr Panos which collected the materials provided by Mr Panos to the Trustee, and then the Insurer, in the course of the making of his claim, and the prosecution of these proceedings. Initially, the material was ordered by reference to Mr Panos' solicitors' letters in support of his claim, so that the supporting material has been ordered in tranches, representing the attachments to each letter; thus not being ordered chronologically or by subject-matter. That material has been supplemented by tranches of documents produced by third parties on subpoena; documents produced or commissioned by the Insurer in the course of its determination; and also various additional documents added by Mr Panos and the Insurer.
However, the parties helpfully produced a bundle of documents containing what they called a "joint medical chronology" and an abridged court book. The joint medical chronology contained important extracts from the bundle of medical records, enquiries and opinions contained in the abridged court book. Some entries in the chronology were agreed, but where the parties agreed to differ, a statement by one or other party has been inserted.
As I understand it, the parties agree that the court should have regard to the documents in the abridged court book on medical issues (at least to the extent that specific reference is not made to other documents in the parties' final submissions). The entries in the chronology are intended to highlight the more significant aspects of the documents in the abridged court book.
The joint medical chronology is a chronology produced in concise, summary form over some 33 pages. There are 300 pages in the abridged court book. For the purpose of providing proper reasons of judgment, it will be necessary for the court to refer to the contents of both of these documents in various ways. However, a large proportion of the documents in the abridged court book have some relevance to the question to be determined, and it is probably true to say that everything in the joint medical chronology is of some significance. It is not, however, feasible, to set out all of the joint medical chronology, and an attempt to analyse the documents in the abridged court book in any depth would be self-defeating because of its complexity.
I will therefore proceed upon the basis that I have considered the material in the abridged court book, and have relied upon the joint medical chronology to identify the aspects of the documents that the parties considered to be the most important. In what follows I will, however, paraphrase and summarise the contents of this material, in a manner that is designed to be as economical as possible, and assist in the explanation of my reasons. That does not mean that I have limited my consideration to the aspects of the evidence to which I will expressly refer.
I should make an express note that I will generally not refer to technical medical terms, where it is unnecessary to do so, and where reference to the terms may create an illusion that I understand the meaning of the terms and have relied upon that specific evidence in determining the questions at issue in this case. As I have suggested above, it will only be possible for me to act upon the more detailed and technical medical evidence, if I am assisted to do so through the prism of expert evidence which interprets that evidence.

[49]

Neck, shoulder and lower back

Dr Diwan, Mr Panos' treating orthopaedic surgeon, said (6 April 2010) that, as a result of the first motor vehicle accident, Mr Panos' suffered chronic disc disease; that, as a result, his current capacity to work was limited, that he should avoid repetitive bending and twisting; that the possibility that he could return back to work as an assistant in nursing was guarded, and that Mr Panos should avoid long-distance travelling. Dr Diwan reported (2 June 2010), after Mr Panos injured himself lifting the bag of IV fluids, and after the first motor vehicle accident, that Mr Panos rated his low back and neck pain at 8 out of 10. His impression was: "1. Recovering whiplash injury. 2. Chronic contained herniation at L4-5. 3. Significant chronic pain response leading to a high level of stress". On 16 June 2010, Dr Diwan reported to the workers compensation insurer that Mr Panos' pain was much better than when last seen. He said: "In terms of his long-term rehabilitation though, it appears that his job at accident and emergency in Sutherland is not sustainable for rehabilitating his spinal column well". Dr Diwan stated, on 14 July 2010, in response to a statement that Mr Panos had not made much functional improvement, and that Mr Panos' work duties appear to be an aggravation, and a change in job position or duties was recommended. Dr Diwan reported to the workers compensation insurer, on 6 October 2010, that Mr Panos had had transient pain relief, but the long distance that he had to travel to work, together with the tendency for him to be required to perform repeated twisting and lifting jobs because of his physique, was something that he would not be able to cope with, five days a week. On 17 February 2011, Dr Diwan reported to the workers compensation insurer that Mr Panos would require ongoing on and off pain medication, when over-the-counter medication does not help.
As I understand it, Dr Ho, an orthopaedic surgeon on behalf of the workers compensation insurer, saw Mr Panos a number of times. He reported (7 April 2010) a number of mild degenerative changes, following a CT scan, of Mr Panos' lumbar spine. On 4 November 2010, Dr Ho reported a suggestion of tendinitis with mild impingement to Dr Kana. Dr Ho provided a substantive report to the workers compensation insurer on 8 November 2010. At that time Mr Panos was doing light duties work with restrictions 2 days per week, 4 hours per day. He said that he did not believe that Mr Panos had a very good long-term prognosis, because of psychological issues that contributed to his situation. Dr Ho noted that Mr Panos was very muscular. Dr Ho noted that Mr Panos had various complaints that Dr Ho did not think were consistent with Mr Panos' physical condition. For instance, Mr Panos claimed to have a lot of stiffness in his neck, but that was inconsistent with his good muscle size and good muscle strength. He said that the arthritis in Mr Panos' cervical spine was compatible with his age. Though Mr Panos complained of pain, his movement was quite good. The various scans and e-rays that had been taken failed to pick up any significant abnormality in the lumbar spine Dr Ho said: … I could not explain why with his motor power being so weak he has good size of muscles on clinical presentation. Certainly the size of the muscle will need constant strengthening exercises and weight training to maintain the shape of the muscle.
Dr Ho gave the following diagnosis: I believe Mr Panos has pre-existing spondylosis, probably aggravated by injury. I do not believe he has any significant problems in the low back. He may have pre-existing Scheuermann's disease and mild degeneration but there are no major problems at this stage and he certainly does not require any surgery. He may have a flare-up of his pre-existing conditions in terms of lumbar spondylosis or cervical spondylosis.
Dr Ho said that Mr Panos' condition had been aggravated or exacerbated, but he normally would imagine Mr's Panos' condition would improve in about six months' time. He said that Mr Panos' "progress at the moment is very unusual". Concerning fitness for work, Dr Ho said: … [Mr Panos] should probably try to limit heavy lifting but he can certainly do longer hours, unless there are psychological issues or some other factors causing his unusual illness behaviours. He is not fit for heavy lifting or repeated bending and twisting movements but he should be able to do full hours. I do not believe he has a very good long-term prognosis because psychological issues contributing to the present situation, unless we can sort that out, we are never going to see progress or improvement.
It is notable that Dr Ho recommended conservative treatment, including physiotherapy and gym programs.
On 16 August 2010, Dr Vote, a spinal surgeon, reported that x-rays showed, after the first motor vehicle accident, that Mr Panos had significant degenerative changes in his cervical spine, and to a lesser extent his lumbar spine. A CT scan showed some chronic disc degenerative changes at L4-5. Mr Panos also had soft tissue injury. Dr Vote said: "Obviously, I would consider on the basis of his history that his road traffic accident is significant in the context of his cervical and lumbar injuries at this point in time."
Dr Haber, an orthopaedic surgeon, gave a number of reports to the workers compensation insurer. He reported, on 25 January 2011, that he had treated Mr Panos for shoulder pain by injecting steroids. He said, on 24 February 2011, that the treatment did provide significant symptomatic relief, but the improvement only lasted a few weeks. He said that Mr Panos did have significant ongoing problems with his neck and back, which had significantly restricted his work as a nurse. Dr Harber operated on Mr Panos' left shoulder on 2 September 2011, involving a left shoulder arthroscopic excision of the outer end of the clavicle. He could not predict a prognosis because of significant stiffness.
Dr Giblin, an orthopaedic surgeon, saw Mr Panos on 18 April 2011, and said in a report dated 20 April 2011: Today, his symptoms in order of severity are: 1 low back pain and stiffness 2 neck pain and stiffness 3 left shoulder pain and catching … I would assess him as permanently unfit for heavy repetitive bending, lifting or using his left upper extremity for prolonged repetitious labouring duties entailing pulling, lifting and twisting, or, at or above shoulder height for pro longed and uninterrupted periods. These restrictions will also apply indefinitely to his domestic, recreational and occupational activities.

[53]

Injury Treatment

On 19 December 2011, Ms Gallaher, a consultant employed by Injury Treatment Pty Ltd (Injury Treatment), prepared a work site assessment report, in respect of Mr Panos, for the Sutherland Hospital, and the workers compensation insurer. The type of injury was described as lower back strain, and the date of injury was 18 March 2010, which was the date of Mr Panos' first motor vehicle accident. The stated objective of the report was to determine whether suitable duties were available within the Emergency Department of the Hospital, taking into consideration the physical requirements of the available duties, and Mr Panos' physical restrictions. It appears that this report was the basis of the Sutherland Hospital's 15 December 2011 letter to Mr Panos, as the assessment was conducted on that day, although the report was only provided some days later.
Ms Gallaher analysed the pre-injury job description of an assistant in nursing (acute care). She noted the physical demands of the employment, as related to the injury, including lifting up to 20 kg between floor and shoulder height on a frequent basis, lifting up to 12 kg between floor and waist height on a frequent basis, lifting up to 10 kg between floor and over shoulder height on a frequent basis, frequent squatting to shin height, frequent forward reaching between waist and above head height, frequent pushing wheeled trolleys over short distances, and prolonged standing, and walking up to 2-3 hours. Other duties involved intermittent forward reaching with flexed hip, frequent squatting and stooping, and occasional rapid movements of trunk to stabilise patients. Mr Panos is recorded as having advised: Mr Panos reported he is not able to repetitively lift any weights due to left shoulder pain and therefore is not able to stock the storeroom. He advised he is only able to make 1-2 beds up at a time. Mr Panos advised he is not able to push wheelchairs or beds with patients on them and that he is not confident to restrain aggressive patients. He also advised that he has difficulty driving the distance from his home to Sutherland Hospital.
A further vocational assessment report was prepared on 26 January 2012 by Mr Manago, of Injury Treatment Pty Ltd, for the benefit of the Sutherland Hospital and the workers compensation insurer. One object was to identify suitable employment options for Mr Panos. This report was also described as relating to lower back strain, and the date of the injury was 18 March 2010. The report noted Mr Panos' educational background and qualifications or licences, as well as his employment history.
The report defined "transferable skills" as being skills that a worker currently possesses, gained through work experience, that they can potentially offer an employer, that do not include knowledge gained through formal studies, that have not yet been practically demonstrated within the employment. The report identified the following potential transferable skills: nursing skills, hospitality/security skills, communication skills, clerical skills, retail skills, store person/warehouse skills, and certain other skills.
The report then addressed what it described as "identified job options", which involved a consideration of Mr Panos' transferable skills, medical certification, pre-injury earnings, interests and the labour market within the Illawarra area. It identified a number of vocational options on this basis. The report identified 4 occupations, being aged/disabled carer, bar attendant, gaming attendant, and security officer. The report contained a detailed analysis, in respect of each job description, of the required education and training, anticipated physical requirements, the result of contacts with potential employers, job vacancies, and a wage comparison.
In brief, the report stated that employment as an aged/disabled carer would usually require a Certificate II or III, or in some instances relevant experience and on-the-job training, in addition to the formal qualification. The physical demands required were rated as 'heavy' to 'very heavy'. The three employers contacted all required Certificate III in disability care, and some experience. In summary, the potential employers advised that the role was very physically demanding, and workers needed to be fit and strong enough to lift and assist clients if required. There were 6 vacancies advertised, but the evidence suggested that workers needed to be experienced.
The report stated that employment as a bar attendant required that an employee selling alcohol complete a responsible service of alcohol course, and many employers also required staff to have completed a responsible conduct of gambling course as well. The physical demands of this occupation were generally light and repetitive, although some employers required their staff to perform heavier tasks. The three potential employers contacted had no positions currently available, but vacancies did arise regularly. There were no advertised vacancies in the Illawarra area.
In relation to the occupation of gaming worker, the report concluded that employers required a higher school certificate. All employees must have completed a responsible conduct of gaming course, and if alcohol is served on the premises, employees must also hold a responsible service of alcohol certificate. The physical requirements of the job were light and repetitive. Again, three potential employers were contacted. There were currently no vacancies, however work could often become available at short notice. Experienced staff were preferred, but that was not essential.
The report stated that security officers usually have to complete a certificate in security. Entry to these courses usually requires at least Year 10. The physical demands of the job were described as light.
The report contained the following recommendation: Mr Panos is currently qualified to obtain work as an Aged/Disabled Carer, Bar Attendant and Gaming Attendant. If Mr Panos is unable to secure employment in the above vocational options and unable to return to his pre-injury duties, Injury Treatment will discuss with all parties if it would be appropriate for him to obtain a security licence.
The report noted that Mr Panos had obtained a Certificate III in aged care work in 2007, a responsible service of alcohol certificate at a date that he could not identify, and a responsible conduct of gambling certificate, also on a date that he could not identify. That explains the conclusion that Mr Panos was qualified to undertake the first three occupations identified.
Injury Treatment noted that Mr Panos' current medical restrictions were lifting up to 10 kg, and travelling up to 30 minutes.
It offered to provide job seeking assistance to Mr Panos to secure alternative employment, if Mr Panos was deemed only fit for suitable duties with restrictions, and unable to return to his pre-injury duties.

[56]

Dr Ho

Dr Ho provided a further report to the workers compensation insurer on 15 October 2012. The report was a formal report to be used in evidence, and Dr Ho acknowledged the Expert Witness Code of Conduct. Dr Ho noted that Mr Panos' "present complaints" involved a stiff left shoulder. Mr Panos' back still hurt, and there were pins and needles going down to both feet, together with pain. Mr Panos told Dr Ho, concerning his job at the Nursing Home, that there was no lifting, minimal strain in the shoulder, and Mr Panos did not have to travel, because the work was close to home. Dr Ho noted, as part of his clinical examination: … I can see the left upper limb has good muscle size. It is certainly much better than most of us, and it looks like a bodybuilder with very strong muscles and there is no muscle wasting. He complained of pain in the left shoulder on the front and on the side… There is certainly no muscle wasting when I measured the arm and the forearm, and compared it to the right side. As I mentioned above, he has very good muscle bulk, just like a bodybuilder, which does involve a lot of weight training and constant exercise to keep good muscle on both sides.
Dr Ho concluded that Mr Panos' back movements were very good; there was no neurological deficit, and no impairment in straight leg raising.
Dr Ho's diagnosis of Mr Panos' condition was that he had low back pain, aggravating the lumbar spondylosis which was mild, and then probably the traffic accident caused some AC joint capsular injury with background AC joint arthritis.
Asked to express an opinion concerning other contributing factors to Mr Panos' condition, Dr Ho replied: His patient behaviour and the response to surgery certainly are very unusual. He does not seem to have major problems in the back because on examination on 15 October 2012 he showed good movement in the back, and no impairment in straight leg raising. I do not understand why the left shoulder has such a poor outcome in terms of pain and stiffness, on examination on 15 October 2012. … I was surprised to see his muscle bulk being so good, which certainly needed a lot of weight training exercises constantly to keep the good muscle size. So I do not understand his unusual patient behaviour and I cannot certainly explain his poor functions in terms of movement, and in terms of pain if his muscle size remained so good.
Dr Ho expressed the view that there was no major pathology in the lumbar spine, and no major pathology in the left shoulder, and said: "I certainly do not understand why his condition remained so bad and his complaints remain so significant".
In relation to specific questions from the workers compensation insurer concerning Mr Panos' fitness for work, Dr Ho said: 11. Based upon your examination of this patient and review of the attached correspondence, what is Mr Panos' current capacity for work? If fit for suitable duties, please outline the restrictions and if these are full hours or reduced hours. He should have a good work capacity based on the examination. 12. Do you believe the current restrictions applied by Dr Kana being unable to drive more than 30 minutes and unable to lift beyond 20 kgs are applicable? I do not understand why he is not fit to drive more than half an hour and I would not imagine he should have lifting restrictions, for the reasons as listed above. He has good muscle size, and that means he is all the time lifting heavy weights to maintain the size of the muscles. He certainly can do full hours duties and I really do not think the restrictions suggested by Dr Kana are reasonable, based on, as I say, the good muscle size in his shoulder. 13. Please advise your prognosis and timeframes with specific regards to return to suitable duties or pre-injury duties. I do not think he has a good prognosis. We do not understand the background pathology in this particular case. It is certainly not easy to get him to go back to pre-injury duties or even suitable duties for full hours because at the moment he is only doing 24 hours per week, and I do not think he should have this sort of restriction in terms of hours. 14. Please indicate if Mr Panos requires the issuing of a permanently modified duties certificate. If so, please specify restrictions and hours. I really do not think he needs a permanently modified duties certificate, as I say we never understand properly what is the underlying motivation of this patient.

[59]

Dr McBurnie

Dr McBurnie, a consultant occupational physician, provided a report to the Insurer on 31 December 2012.
For reasons that will appear below, it will be necessary to note the observations made by Dr McBurnie concerning Mr Panos' physique and his practice of attending the gym. She said that currently Mr Panos was attending a gym. Her description of his physical circumstances included: "He had very well-developed musculature in both upper limbs, his shoulder girdles, chest, abdomen and neck indicating regular gym attendance and persistent training". Dr McBurnie advised: "It is important that Mr Panos continue with the exercise component of his current treatment into the future as this will help his future work capacity. Mr Panos has always enjoyed exercise, so this should not be an issue".
Dr McBurnie described her understanding of Mr Panos' education, training and experience in the following terms: Mr Panos completed Year 9 and commenced a traineeship as a draftsman. He did this for three years before moving to Cairns where he worked in security and in clubs for about 14 years. He then returned to Sydney and worked in a takeaway shop before becoming a supervisor at the Hellenic Club. He left that job after about four years following an assault by a patron. He took part in jobseeking program while on Workers' Compensation and commenced an assistant in nursing course. He completed the course in about 12 months and then commenced work in an aged care centre for about two years. He then moved to Sutherland Hospital in 2008. He worked in that role for about four years until June 2011.
Dr McBurnie then noted that, for the past 2 ½ months, Mr Panos had worked as an assistant in nursing at the Nursing Home, and stated that bed making and lifting and rolling clients were uncomfortable for his back and left shoulder.
Dr McBurnie summarised her view of Mr Panos' current medical condition in the following way: Mr Panos currently has lower back pain and left shoulder pain of varying intensity. He has minor neck discomfort with sustained posture. The back and left shoulder pain is aggravated by lifting, pushing and pulling.
More specifically, she said: Mr Panos has a chronic lower back pain secondary to lumbar spondylosis. He also has cervical spondylosis with minimal symptoms. His diagnosis is based on the description of the symptoms and the findings on investigation including CT scan and bone scan. He has mild impingement of his left shoulder. This is likely to be due to the supraspinatus tendinosos and subacromial bursitis. These changes were noted on an ultrasound examination in 2010. He has had surgery but there are no details available about this.
Dr McBurnie accepted that Mr Panos had permanent restrictions relating to his condition. She said: Although it may be possible to improve Mr Panos' functional capacity with a pain management program he does have underlying lumbar and cervical spondylosis and arthritis of both acromioclavicular joints. In order to try to minimise future recurrence or aggravation of pain Mr Panos really should have a permanent lifting restriction of less than 20 kg.
Dr McBurnie expressed the following view concerning Mr Panos' capabilities in performing work: Mr Panos has a capability to undertake a variety of assistant in nursing duties. He may experience aggravation of his lower back pain and shoulder pain with the heavier tasks but he would be able to perform an assistant in nursing role in some environments. For example he would be able to perform as an assistant in nursing in an aged care facility where the clients were semi-independent and were able to take care of their own showering and dressing needs. Mr Panos would also be able to undertake a variety of office-based work. He has not worked in an office before but he has Year 9 education with later education that resulted in the assistant in nursing qualification. As an assistant in nursing he was also required to undertake a substantial amount of reading, writing and documenting to undertake a variety of entry-level office and administrative-based duties without the need for training prior to commencement. Mr Panos would be able to work full time.
Dr McBurnie expressed the view that, in her opinion, the conditions claimed by Mr Panos did not render him totally and permanently disabled from ever returning to work in a role within his education, training and experience. She referred to his current employment working in an assistant in nursing role for 32 hours of week, although she noted that he got back pain and shoulder pain with the heavier tasks.
Dr McBurnie did not carry out any investigation of the actual likelihood that Mr Panos would be able to gain employment within the roles that she discussed.

[65]

Ms Peterson and Ms Paterson

On 16 October 2013, Ms Peterson and Ms Patterson provided a vocational assessment and functional capacity assessment report to the Insurer, in relation to an assessment of Mr Panos on 10 October 2013.
At this stage, I will only deal with the component of the report that considered Mr Panos' functional capacity. Mr Panos objected to the admission into evidence of substantial parts of the vocational assessment. The objection was made at a time that left insufficient opportunity during the hearing for the court to rule on the objections. It was necessary for me to state that I would deal with the objections in my reasons for judgment. I will return to this issue below.
The functional capacity assessment report is detailed, and it will be necessary for me to summarise its effect. The functional assessment was apparently carried out by Ms Paterson, who is a rehabilitation consultant, and apparently a physiotherapist.
In relation to work suitability, the report "postulated that Mr Panos would be able to work in an occupation with a secondary physical demand level". However, it stated in connection with this observation: "Due to the inconsistencies noted during the assessment, Mr Panos' physical capacity cannot be accurately determined".
Mr Panos underwent a number of tests to allow assessment of his functional capacity. The following is a sample of the observations made in the report. The sample is reasonably representative, and is material to matters that I will discuss below: Mr Panos reported that he was unable to bear weight on his right leg due to pain in his right knee… Over shoulder activity. 11 seconds - Mr Panos ceased the activity reporting increased pain in his neck and left shoulder which he rated as 6-7/10… Half Squat. Sustained for 6 seconds - Mr Panos ceased this activity reporting pain in his groin and discomfort from the pressure on the soles of his feet… Grip strength provides a good indicator of overall upper body conditioning… Normal variation in grip strength was not observed with laterality. Normal variation in grip strength was not observed with increasing grip width and repetition. This demonstrates below-average strength for a man of his age… As demonstrated by these graphs, Bell curves were not evident in both hands and more than two Coefficients of Variation were below norms, which indicate that Mr Panos was not performing to his maximal effort. Repeated movements can indicate whole-body range of motion and the ability to repeat tasks without fatigue. Mr Panos attempted the following activities but ceased the activities reporting a fear of aggravating his pain symptoms… Squat to 1/3 range: 1 time in 20 seconds (below-average)… Reaching overhead: 6 repetitions in 7 seconds (below-average)… Walking: A six minute walk test was attempted. Mr Panos walked 100 m in 128 seconds. He ceased the activity reporting a fear of aggravating his pain symptoms… Mr Panos attempted to lift 5 kg from floor to waist level once. The activity was halted as Mr Panos reported being unable to perform a semi-squat. His lifting technique was deemed unsafe. Based on this assessment, Mr Panos should avoid lifting from floor to waist level. Mr Panos was able to lift 20 kg at waist level 5 times over a period of 1 minute. His heart rate increased to 70 bpm and he rated this as difficult. Mr Panos was limited from lifting more by poor body mechanics as he extended his back when attempting to lift the weight. Based on this assessment, Mr Panos would be able to lift [5 kg] at waist height. Mr Panos attempted [a waist to overhead level lift] with a 5 kg weight but ceased the activity advising that he did not have sufficient range of movement in his left shoulder to lift the weight to an overhead position. Bilateral: Mr Panos was able to carry 3.75 kg over a distance of 20 m in a period of 1 minute. His heart rate increased to 88 bpm and he rated this as difficult. Mr Panos was limited from carrying more by fear of pain. Based on this assessment, Mr Panos would be able to carry [3.75 kg].
The following is a summary of the functional assessment stated in the report: Mr Panos' performance throughout the functional assessment was inconsistent. • Mr Panos reported that he was unable to squat more than 1/3 range. However it was noted that he was presented with no difficulty when sitting down or standing up from the computer chair. He declined to sit in an armchair during the interview stating that he was more comfortable on the higher computer chair. • Mr Panos' blood pressure and pulse rate did not demonstrate an increase between the pre-test and post-test recording indicating that he was not working to maximum intensity. • Mr Panos reported high levels of pain throughout the assessment but there was no corresponding increase in heart rate. • Mr Panos' results in the grip strength test were inconsistent with his demonstrated ability to lift the bucket weighing 2.5 kg during the manual handling test. • The results of the Grip Strength Test: Bell curves were not evident in both hands and more than two Coefficients of Variation were below norms, which indicate that Mr Panos was not performing to his maximal effort. • Mr Panos' self-reported tolerance for walking was significantly more than observed during the functional assessment. Mr Panos' performance may be limited by fear of increasing pain and possible re-injury.
It is of some significance that a number of observations were made about Mr Panos that are not consistent with Mr Panos having considerable experience lifting weights in a gym. The first was that Mr Panos' lifting technique was deemed unsafe, when he attempted to lift 5 kg from floor to waist level once. The second was that Mr Panos was limited from lifting more than 20 kg to waist level by poor body mechanics, as he extended his back when attempting to lift the weight.
As will be seen, the report identified 8 occupations for which Mr Panos was suited by his education, training and experience. All were sedentary. They did not include any assistant in nursing duties, which had been identified by Dr McBurnie. Accordingly, occupations based upon the assistant in nursing certificate and the certificate III: aged care work, obtained by Mr Panos in 2007, were excluded. That outcome appears to have resulted from Mr Panos' performance in the various tests.

[75]

The vocational assessment report

As I have noted above, Mr Panos objected to the admission into evidence of parts of the 16 October 2013 report prepared by Ms Peterson and Ms Paterson, which related to their assessment of Mr Panos' vocational prospects.
Mr Panos delivered to the court a copy of the report in which the parts that were objected to had been crossed out. The Insurer responded by providing to the court a copy of the document containing Mr Panos' objections, with the Insurer's responses typed in the right hand margin. As there are many objections and responses, and this is not an appropriate place to provide complex reasons for rulings on evidence, I propose to approach the issue in a shorthand way. I have marked the document containing the objections and responses as MFI 2, and placed it on the court file.
I accept the Insurer's submission that, as the Insurer acted upon the whole of the report prepared by Ms Peterson and Ms Paterson in deciding to reject Mr Panos' TPD claim, then the whole of the report is admissible into evidence on the issue of whether the determination made by the Insurer is valid: see s 77 of the Evidence Act 1995 (NSW). The only question can be whether the court should treat Mr Panos' objections as an equivalent submission that the court should limit the use of the evidence under s 136 of the Evidence Act.
It is not necessary to comment in relation to those aspects of the report which the Insurer does not press. I will ignore those matters.
The thrust of Mr Panos' objections generally appears to be intended to keep out of the evidence the expert opinion, and the basis for that opinion, concerning Mr Panos' capability of undertaking the occupations identified in the report, and his prospects of actually gaining employment by reference to job opportunities currently available in the Illawarra.
I have decided that the proper course is to accept the submissions made on behalf of the Insurer.
It will be necessary only to refer to the principal objections and the Insurer's responses.
One significant category of objection is where the report lists Mr Panos' employment history, summarises the duties involved in the various occupations, and then identifies Mr Panos' transferable skills based upon his education, training and experience. The report lists process worker, security officer, store person, bar attendant, nursing assistant, aged care assistant, and then various general skills such as communication, administrative, computer and so on. I accept that the persons who prepared the report, and in particular Ms Peterson, who was a qualified psychologist practising in rehabilitation, had the expertise to give this evidence.
Another significant category of objection concerns the parts of the report where it identified particular occupations that were said to be within Mr Panos' transferable skills, and then considered the suitability of those occupations in relation to Mr Panos' education, training and experience, his functional capacity, and the local labour market. I am satisfied that Ms Peterson's expertise supports the parts of the report that concern Mr Panos' transferable skills, the significance of his education, training and experience, and his functional capacity.
Ms Peterson relied upon an examination of the Yellow Pages and the utilisation of search engines on the Internet to identify potential employers in the area and job advertisements. Ms Peterson also relied upon the results of an Internet search to identify the nature of the work associated with the occupations that she had identified.
In essence, Ms Peterson relied upon information she found on the Internet at various websites that she accepted had been established by organisations that had collated reliable and material information concerning the requirements of relevant occupations, and the existence of offers of employment. The evidence in the report is effectively hearsay evidence of what was contained in the Yellow Pages and the various websites upon which Ms Peterson relied. I infer that the information on the websites concerning the requirements of different occupations is likely to be reliable. The information concerning the availability of opportunities for employment is likely to be direct evidence of offers for employment.
I acknowledge that I have not dealt with the arguments concerning all of the objections made by Mr Panos minutely. In my view, once the report has been admitted for one legitimate purpose, it may also be used to prove the facts in respect of which the opinions in the report have been expressed: see Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73 at 77 and Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 80 FCR 276.
The real question is whether or not the court should take the view that the admission of the report on an unlimited basis will be unfairly prejudicial to Mr Panos, or will be misleading or confusing, for the purposes of s 136. Mr Panos did not make any substantive submissions to show how prejudice or confusion would arise. I cannot see how it will. Both Mr Panos and the Insurer were content to fight the case on the basis of sundry expert reports, and communications and certificates prepared by various types of experts. It would not be fair or appropriate, in the absence of good reason, to limit the way the Insurer may use the report under consideration, based upon an objection made by Mr Panos, after the reports upon which he relies had been admitted into evidence, without any objection by the Insurer.
In summary, the report identified 7 positions advertised for employment as a security officer, 3 positions as an enquiry clerk, 2 positions as a gaming worker, 4 positions as a store person, 14 positions as a stock clerk, 37 and perhaps an additional 34 positions as bar attendant, and 1 position as product assembler. Those positions were either full or part-time. The report provided elaboration of the information obtained by Ms Peterson in relation to many of the positions in an appendix to the report entitled "labour market analysis".

[76]

Surveillance videos

Mr Panos' workers compensation insurer produced to the court in answer to a subpoena a number of surveillance videos, which it had commissioned in relation to Mr Panos' activities. The videos were not available to the Insurer when it made its determination of Mr Panos' TPD claim.
The surveillance videos were admitted into evidence and may be used by the court in making its own determination of whether Mr Panos is entitled to the TPD claim. I accept the Insurer's submission that, where there is a dispute as to the existence of a physical disability, the court may take into account what is depicted in the surveillance videos to test the credibility of evidence given by a person concerning disabilities suffered by that person: Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at [33]-[40]; and Borg v Ramsay Health Care trading as North Shore Private Hospital Pty Ltd [2014] NSWSC 37 at [49] and [59].
The surveillance videos were played in court when Mr Panos was being cross-examined, and he was asked questions to confirm what was depicted in the videos. At the same time Dr Kana watched the videos on a separate computer screen.
I have had regard to the whole of the surveillance videos, and will only record what I consider to be the more significant aspects of what they depict. It is not feasible to give an adequate description in words of the contents of the videos.
On 14 March 2012, Mr Panos is shown as doing warm up exercises on a bike or step machine, using an abdominal crunch machine, and performing leg squats with a bar on his shoulders. The weight does not appear to be particularly heavy.
On 16 March 2012, Mr Panos lifted dumbbells from shoulder height to above head height. He performed approximately 5 sets in about 20 minutes. He performed repetitions of 20, 20, 9 and 10 repetitions in 4 of the sets (the repetitions in the other two sets could not be counted). Mr Panos described these exercises as "just warm-ups". He also performed 4 sets of up to 10 repetitions of lateral lifts of dumbbells from waste to shoulder height with his arms to the side. He performed 3 sets of exercises involving lifting dumbbells from waste level to head height using alternative arms with the arms outstretched to his front, with approximately 7 repetitions for each arm.
On 30 April 2012, Mr Panos is shown lifting weights in the gym. He performed 2 sets of bicep curls of 10 repetitions each. In some of the sets, he appears to be rocking slightly backwards and forwards during the course of the lift, which tends to suggest that Mr Panos was finding the weight a little heavy. A break in the video prevents any finding about what else Mr Panos may have done in the gym.
On 3 May 2012, Mr Panos appeared to be doing sets of calf raises using a calf machine, with 10 or more repetitions per set. The weight does not appear to be particularly heavy.
On 5 July 2013, Mr Panos did vertical push-ups in the gym; he is seen performing 4 sets of approximately 8 or 9 repetitions lifting dumbbells using alternate arms with his arms straight in front from below shoulder height to above shoulder height. He is also seen doing lateral side raises using dumbbells from waste to shoulder height.
It appeared to me that Mr Panos was not shown as lifting particularly heavy weights. However, exercises such as bicep curls and arm raises are inherently difficult, and generally can only be performed with relatively light weights. There were no evident signs of pain or restriction of movement when Mr Panos was performing these exercises. When it was put to him that, on 5 July 2013, he could be seen smiling and laughing, he was unable to say whether he was in pain at the time.
The videos also depicted Mr Panos on a number of occasions walking along the road, bending to look into his letterbox, and shopping with his family, during which he could be seen pushing a shopping trolley. Although there was nothing exceptionally strenuous about these activities, Mr Panos did not appear to be discomforted in any way.
On 30 September 2012, [Mr Panos was shown getting out of his car at a beach, taking off his shirt, and walking along the beach at water's edge. He returned after about 50 minutes. Mr Panos did not appear to be suffering any ill effects on his return.
Mr Panos physically appeared to be very well built, slim and fit. He had a physique that would be enviable for any man in his 40s.

[77]

Dr Kana's cross examination

Dr Kana accepted that he did not have any particular experience in occupational medicine. He had no particular experience of the duties of persons employed in the occupations that he responded to in his 17 October 2014 report to the Insurer (see par 367 above). Dr Kana explained why he thought the occupation of assistant in nursing involved heavy lifting. He had not been provided with a copy of the vocational assessment and functional capacity report prepared by Ms Peterson and Ms Paterson.
After he had seen the surveillance videos, Dr Kana said that he thought that Mr Panos could probably perform the job of a security officer.
Dr Kana did not accept that Mr Panos could be employed as a call centre operative, because he would have to sit for periods of time that were too long.
Dr Kana said that he was not too sure about whether Mr Panos could work as a store person, but the videos would probably change his mind.
He agreed that the videos would change his mind in relation to Mr Panos' capacity to be a bar attendant, so that he would now answer the question "yes". That was so provided that Mr Panos was not required to change kegs.
Dr Kana was shown a number of the medical certificates that he had given that were in evidence, in which he expressed opinions concerning Mr Panos' physical limitations. He said that he would increase his estimate of Mr Panos' ability to travel from half an hour to maybe two hours.
On 5 June 2013, after Mr Panos was injured at the Nursing Home, Dr Kana issued a certificate in which he said that Mr Panos was unfit to continue his usual occupation. When it was pointed out to Dr Kana that the certificate was issued one month before Mr Panos was shown exercising at the gym on 5 July 2013, Dr Kana said that he would change his opinion to: "That he would be fit to work".
Dr Kana was also shown a certificate issued to WorkCover, in which he said that Mr Panos had no current work capacity for any employment from 17 August 2013. Dr Kana said his opinion would now be that Mr Panos was fit.
In relation to the 31 December 2012 report of Dr McBurnie, Dr Kana agreed with her description of the physical disabilities suffered by Mr Panos. He said that, in his view, Mr Panos had reached the maximum improvement. When referred to Dr McBurnie's imposition of a carrying restriction of 20 kg, Dr Kana said that that restriction was not appropriate at the moment. He was uncertain and did not know whether there should be any restriction. Dr Kana said that he did not know exactly what Mr Panos could lift, but he thought he could do more than 20 kg.
Importantly, Dr Kana agreed with the statements made by Dr McBurnie on pages 8 and 9 of her report concerning Mr Panos' ability to perform work duties (see par348 above). Dr Kana said that, at the time of giving evidence, he did not think that the restrictions placed by Dr McBurnie on Mr Panos' ability to work as an assistant in nursing would apply. Dr Kana said that his study, training and experience as a medical practitioner enabled him to comment on the opinions given by Dr McBurnie.

[78]

Conclusion as to Mr Panos' entitlement to the TPD benefit

I have concluded that Mr Panos has failed to carry the burden of establishing that, as at 26 November 2011, he was incapacitated within the definition of TPD in the Policy.
The starting point in the enquiry is to identify the occupation or work for which Mr Panos was reasonably qualified by reason of education, training or experience on 26 November 2011. That should involve an investigation of his education, training and experience history, and the identification of what have been called "transferable skills", as a step in identifying the occupations for which Mr Panos was reasonably qualified, bearing in mind that his education, training and experience in a number of particular occupations might qualify him to engage in a range of other occupations in which he has never actually engaged.
There are limitations in the evidence, which introduce difficulty in considering this issue properly. Most of the occupations in which Mr Panos had engaged before he ceased work at the Sutherland Hospital on 26 May 2011 were quite general, and did not require specific and identifiable qualifications. Mr Panos left school in Year 9, but it is likely that he improved his general numeracy and literacy, as a result of carrying out the work that he did in some of his occupations.
Mr Panos worked as a security officer in Cairns for a number of years, but he undertook a security course after the relevant date. There is no evidence as to what was involved in the security course, and whether, and if so to what extent, it increased his education and training beyond his earlier work as a security officer. Perhaps formal training requirements had been introduced at some time in the intervening period, and Mr Panos' earlier work as a security officer no longer qualified him to work in that occupation.
Mr Panos reported to Ms Peterson and Ms Paterson that in 2006, he obtained a Statement of Attainment in Concepts in Palliative Care; in 2007, he obtained a Certificate III: Aged Care Work; and in 2007, he also obtained an Assistant in Nursing Certificate. He had positions as an assistant in nursing between 2007 and 2010. Mr Panos claims that, as part of his work trial with the Nursing Home, he undertook additional training. The precise nature of that training was not explained, and it is not clear how it may have changed Mr Panos' education, training or experience, compared to what resulted from the earlier certificates that he had obtained. This is problematic in view of the statement of principle by the Chief Justice in Hannover Life Re of Australasia Ltd v Dargan.
It does not appear that Mr Panos has identified any occupations for which he was qualified in his pleadings, his outline submissions before the hearing, or his final written submissions. In his final submissions, Mr Panos appears to have taken the course of listing his incapacities and their consequences, and then making submissions as to why his incapacities made it unlikely that he would ever be able to engage in any of the occupations identified by Ms Peterson in her report, or Dr McBurnie. Mr Panos appears to have dealt with the 7 occupations in Ms Peterson's report (combining inquiry clerk and inventory and supply officer into one) and then adding Dr McBurnie's occupation of aged/disabled carer.
I conclude, based upon this approach by Mr Panos, that Mr Panos accepted that in principle they did, unless he made a specific submission that the occupation required additional education or training, and in other cases he submitted that he was unlikely ever to gain employment in any of those occupations, for various reasons, including the consequences of his disabilities, and the unavailability in fact of job opportunities which Mr Panos had a realistic opportunity to fill.
Mr Panos clearly suffered a number of disabilities at the relevant date, and that has been accepted the experts, albeit with different emphases. I have referred above to the fact that Dr Kana agreed with Dr McBurnie's summary of Mr Panos' disabilities. There are differences of opinions between the experts, and between the Insurer and Mr Panos, as to the significance of those disabilities.
This is not one of those cases where the court could act upon the basis that the employment consequences of Mr Panos' disabilities were self-evident. He has a series of disabilities that have occurred over time, which may have resolved to some extent, but have ongoing effects. In various ways, the disabilities could act cumulatively.
In these circumstances, the court is reliant on the expert evidence as to the significance of the cumulative disabilities, to the capacity of Mr Panos to engage in particular occupations, and the likelihood that he could gain employment in those occupations. The court is also reliant upon Mr Panos' own statements as to the effect of his disabilities and his capabilities.

[79]

The expert evidence

I will begin by considering the effect of the expert evidence that is before the court.
Both parties have chosen not to prepare expert evidence that was directed to proving the relevant issues on the basis that they would be determined by the court, and not the Insurer. Both parties have chosen to rely upon expert evidence that was intended to be used by the Insurer. Consequently, the court faces the difficulty of having to deal with a substantial body of expert evidence, produced by persons with different expertise, for different purposes, and addressed to different persons and organisations, at different times.
Dr Kana was the only expert witness who was cross-examined. That has had the consequence that the court has not had the benefit of the evidence of all expert witnesses being tested in any comprehensive way.
The practical consequence is that there is no other course open to the court but to sift through the evidence, consider its significance, and determine its weight and effect, relevant to all other evidence going to the particular issue.
Dr Giblin's reports represent the only evidence in Mr Panos' case that approximates expert evidence intended to be tendered in the proceedings. Dr Giblin, on a number of occasions, has expressed unconditional opinions that Mr Panos fell within the definition of TPD in the Policy at the relevant time.
The Insurer chose not to cross-examine Dr Giblin.
On the other hand, Dr Giblin is an orthopaedic surgeon, and no evidence has been provided concerning the specific expertise of orthopaedic surgeons to form opinions on the vocational prospects of workers with disabilities. I am prepared to accept that orthopaedic surgeons would have significant expertise in relation to the functional effects of disabilities of the nature that their specialty leads them to treat.
However, as I have observed above, Dr Giblin provided almost no explanation of his reasoning. He made observations about the likelihood in fact that Mr Panos would gain employment, without apparently carrying out any thorough vocational assessment.
Furthermore, Dr Giblin noted in his last substantive report that Mr Panos had ceased attending the gym since his 31 May 2013 injury at the Nursing Home, when it is known that Mr Panos at least attended the gym on 5 July 2013, about a month after the injury.
As Dr Giblin was not cross-examined, I must give some weight to his opinions, but I am not inclined to give them much weight in comparison with the opinions of experts whose expertise appears to lie in the area of vocational rehabilitation, and who have provided more conventional reports, that fully expose their reasoning and the assumptions or facts upon which they acted.
Dr Kana was for the whole period Mr Panos' general practitioner. I accept that, as such, he would have had some level of expertise in vocational rehabilitation, although he did not claim that his expertise extended in any detailed way to having an understanding of the actual job market. Relevantly, the principal role of Dr Kana was, in relation to the various injuries and disabilities from which Mr Panos suffered, to issue certificates from time to time to employers or relevant authorities concerning Mr Panos' capacity to work, and any restrictions that should be imposed upon his work.
Dr Kana has not prepared any expert report that, in a conventional way, states an opinion that, as at the relevant date, Mr Panos was incapacitated in a way that satisfied the TPD definition in the Policy, or given reasons for such an opinion. What he has done, from time to time, is to respond to questions that have been put to him by interested parties, for various different purposes.
In his 17 October 2014 report to the Insurer, he appears to have answered "no" to questions as to whether Mr Panos was physically capable of undertaking any of the occupations suggested by Dr McBurnie and Ms Peterson. Dr Kana gave very limited reasons, generally related to his perception of the requirements of the job, as to whether it involved heavy lifting, long periods of standing or sitting, or long periods of walking.
His final position in cross-examination was that he accepted Dr McBurnie's opinion concerning Mr Panos' capacity to work in assistant nursing and aged care (without, it appears, the limitations imposed by Dr McBurnie). He agreed that Mr Panos was capable of working as a security officer, probably a storeman, a bar attendant (provided he did not have to change kegs), and that, shortly after the injury that Mr Panos suffered at the nursing home, he was fit to return to work.
It appeared from my observation of Dr Kana in the witness box that he was significantly influenced by viewing the surveillance videos. He was not asked to elaborate on the reasons for his changes of opinion. In my view it is relatively obvious from looking at Mr Panos that he has the physique that would usually suggest regular and conscientious weight training. A substantial number of the medical professionals who have provided reports readily noticed the same thing. Dr Kana himself said, in his 29 November 2012 response to the workers compensation insurer, that he agreed that Mr Panos had good muscle size, meaning that he was all the time lifting heavy weights to maintain the size of his muscles. Dr Kana was aware of Mr Panos' practice of working out with weights on a regular basis. The only inference that can be drawn is that, in some unidentified way, Mr Panos, by word or deed, led Dr Kana to form the professional opinion that Mr Panos suffered from disabilities that required him to be subject to employment restrictions that were inconsistent with the capabilities displayed by Mr Panos in the surveillance videos.
I do not ignore the evidence of Dr Noonan concerning the effect on Mr Panos' physique of long-term hormone treatment with testosterone; which was accepted by Dr Giblin as being a sufficient explanation for Mr Panos' physique.
However, once due allowance is made for that evidence, the fact remains that Mr Panos clearly informed many of the medical professionals of his habit of working out in the gym; Mr Panos acknowledged that practice in evidence; and even for the period in which he claimed to have stopped regularly going to the gym, he conceded that he regularly undertook similar exercise regimes at his home. Consequently, the positive evidence concerning Mr Panos' regular weight lifting practices, together with the surveillance videos, must be taken to have had their natural consequences; which may well have been augmented by the hormone therapy.
Dr Kana's change of position, together with the effect of viewing the surveillance videos, seriously undermines Mr Panos' case. First, Dr Kana has positively accepted that Mr Panos is physically capable of engaging in a number of the occupations that Dr McBurnie or Ms Peterson concluded he could engage in. Dr Kana opined that Mr Panos may not need to be subject to lifting restrictions, and in particular a restriction of 20 kg, and he could travel for up to 2 hours. Not only does this make Mr Panos more employable than Mr Panos contends, but it tends to have the consequential effect of undermining Mr Panos' position concerning his earlier attempts to find employment, where he claimed to be subject to the restrictions, as well as the opinions of medical professionals who assumed that he was subject to the restrictions.
Mr Panos accepted the admission into evidence of the reports prepared by Dr McBurnie, and the functional capacity assessment report prepared by Ms Paterson, without requiring either of those experts for cross-examination. Although Mr Panos opposed the reception of parts of Ms Peterson's vocational assessment report into evidence, he also did not require her for cross-examination.
The reports prepared by Dr Bernie, and Ms Peterson and Ms Paterson, have been adequately reasoned, and appear to have been properly and professionally prepared. They are persuasive, and I have come to the conclusion that, in the circumstances, it is proper to give them considerable weight, and to generally accept the opinions expressed by those experts.
I have also concluded that I should give some weight to the opinions expressed by Dr Ho, Dr Perla and Dr Wallace, although those opinions were prepared for the workers compensation insurer, and I would exercise some care in relying upon them, not because of any doubt about the expertise or genuineness of the doctors, but because of some uncertainty as to the circumstances in which those opinions were provided to the workers compensation insurer.
The last word on Mr Panos' psychological circumstances was given by the psychiatrist, Dr Prior on 3 December 2012. He said that Mr Panos had a Major Depressive Disorder, which was in partial remission, and that the disorder from which Mr Panos suffered would most likely significantly remit if he were to avail himself of appropriate anti-depressant medication, but that Mr Panos had indicated that he would not accept that treatment.
Mr Panos has complained that none of the doctors or other experts have given due weight to the deterioration in both of his knees. However, Mr Panos did not call any positive evidence that could provide a basis for the court to find that he could not reasonably engage in any particular occupation because of the state of his knees. He apparently ignored the advice of his specialist, when told to try to find a sedentary occupation, when he accepted employment at the Sutherland Hospital. He managed to work for a number of years before his employment was interrupted by the consequences of his second motor vehicle accident. I accept that his knees may be deteriorating, but that is a common condition. It may well limit his capacity for employment, but the court could not make any findings in that regard without proper evidence. There is also the possibility, referred to by one of the doctors, that Mr Panos could undergo knee replacement operations.

[80]

Mr Panos' evidence

It is very important to Mr Panos' case, if not crucial, that the court have good reason to accept his evidence, when he subjectively states how he experiences the consequences of his disabilities, and how they affect, in a real and practical way, his ability to obtain and retain particular employment, having regard to the practical requirements of that employment, and all other relevant matters, such as hours of work and travel.
I should say at the outset, in respect of the manner in which Mr Panos gave his evidence in the witness box, that he appeared to do so in a relatively straightforward way, that would not lead the court to reject his evidence in any substantial respects, based upon the manner in which he gave his evidence and his demeanour.
However, I have formed the view that I should not accept and act upon Mr Panos' evidence on all issues relevant to his disabilities and their effects on him to the full extent of that evidence. It is not that I do not accept Mr Panos' evidence at all on significant issues; but more that I believe Mr Panos has exaggerated his circumstances. It is a matter of degree, but significantly so, having regard to the final position of the expert evidence, which I have outlined above.
It appears to be reasonably clear that Dr Kana expressed a significant number of opinions, in his various certificates and reports, that Mr Panos had physical limitations, which Dr Kana readily abandoned in cross-examination after having seen the surveillance videos. I infer that Dr Kana formed the view that, in ways that were not exposed in the evidence, Mr Panos had caused Dr Kana, in the various consultations that led to the reports, to overstate the effect of Mr Panos' disabilities. I must also infer that Mr Panos had some awareness that he was leading Dr Kana to form an overstated assessment of his disabilities.
In discussing the vocational report prepared by Ms Peterson and Ms Paterson above, I have set out at some length the contents of the report concerning Mr Panos' performance of the various tasks that he was set, and the evidence concerning his apparent level of effort (see pars 363 - 364 above). It is self-evident from a comparison between the relevant parts of the report, and what is depicted in the surveillance videos, that Mr Panos seriously exaggerated his physical disabilities in the consultation with Ms Peterson and Ms Paterson. It is not necessary to list the individual aspects of this overstatement, because in my view it applied at least to all of the matters I have extracted above. That could not have happened accidentally, and the evidence requires a finding that Mr Panos intentionally overstated his disabilities, and tailored his performance on the various tests to support that appearance.
It is particularly concerning that, in performing a number of the tests, Mr Panos not only performed at a level below his capabilities, but he appeared to undertake lifting in a number of ways that were physically unsound, and which would instinctively be avoided by persons who have had long experience in weight lifting.
Mr Panos gave evidence, or made assertions at various times, concerning his limited ability to walk for long periods. Yet he was shown in one of the surveillance videos walking on a beach for almost an hour. At the end of the walk he clearly was not suffering from any ill effects. It is notorious that walking on sand is more difficult than walking on solid ground, particularly where appropriate footwear can be worn.
Mr Panos appears to have told Drs Perla, Wallace and Giblin that he had stopped going to the gym since his injury at the Nursing Home, when that was not true, because he at least went to the gym on 5 July 2013. He also asserted in cross-examination (T 39.44, 39.50) that he had not set foot in a gym since 2012.
Mr Panos stated in his resume that he had a forklift ticket. When asked in re-examination when he had obtained that ticket, he said that he had obtained it "under the table" from a person who would write a ticket for cash. That gives rise to an alternative damaging inference to Mr Panos' credit, that he either did not receive the ticket at all, or he received it in highly questionable circumstances.
I accept that Mr Panos had, at the relevant date, relatively significant physical disabilities as a result of his various injuries. I accept that, at the relevant date, the existence of those disabilities caused Mr Panos to suffer pain, and other restrictions, as well as fear of suffering from further injury, which were not inconsiderable. However, I do not accept his evidence concerning the intensity or extent of the consequences. Once I have been forced to draw that conclusion, there is no rational or objective way for me to assess the real intensity of pain or extent of other disabilities, or the physical limitations that they impose upon him.

[81]

Likelihood of Mr Panos gaining employment

It must always be remembered that the definition of TPD in the Policy depends upon a degree of likelihood that Mr Panos will engage in any occupation for which he or she is reasonably qualified by reason of education, training or experience, that is expressed in terms of "unlikely ever".
Evidence about the difficulties in the job market at a particular time, and an absence of success in job hunting is relevant, but it must always be assessed over a long-term perspective.
It must also be remembered that Mr Panos has the burden of proving that he is unlikely ever to be employed in the manner contemplated by the TPD definition.
I am not satisfied that Mr Panos is unlikely ever to obtain regular full-time or part-time employment as an assistant in nursing, which is an occupation that Mr Panos engaged in from 2007 to 2010. Dr McBurnie and Dr Kana agreed that he was physically capable of performing the work required by that occupation. As I have mentioned, he qualified for an Assistant in Nursing Certificate in 2007.
I am also not satisfied that Mr Panos is unlikely ever to obtain regular full-time or part-time employment in aged care. He obtained a Certificate III in Aged Care Work in 2007. The work that he did at the Nursing Home proves that he was capable of doing that work at the relevant date. Mr Panos claims that he retrained by means of a 6 week course, but he did not provide adequate evidence of what was involved in the supposed training course. In its 7 November 2012 report, Injury Treatment stated: "Following a Work Trial, Mr Panos has successful (sic) commenced employment with Hillside Nursing Home Figtree". The positive evidence suggests that the Nursing Home required Mr Panos to undertake a work trial. That may have involved some specific training for the job so that Mr Panos could satisfy the requirements of his employer. I am not satisfied that Mr Panos was required engage in new education or training that would exclude this occupation under the principle established by Dargan.
I have also concluded that Mr Panos has not established that he is unlikely ever to obtain a position as a bar attendant. I accept that the evidence establishes that he would need to obtain a Responsible Service of Alcohol Certificate, and possibly also a Responsible Conduct of Gaming certificate. There is no evidence as to what the requirements are for obtaining those certificates. Evidently, since Mr Panos worked as a bar attendant from 2002 to 2004, the requirement for bar attendants to have these qualifications has been introduced. The evidence has not satisfied me that each certificate was not an "ancillary certificate" as that term was used in Dargan. In the absence of evidence to the contrary, I would not find that the two certificates involved a substantial amount of re-education or retraining compared to the level of training and experience that Mr Panos had from his earlier work as a bar attendant, to conclude that the need to obtain the certificates was not reasonably within his original education, training and experience.
I have not ignored Mr Panos' reliance upon the fact that he ceased his original work as a bar attendant because of his knee injuries, but, having viewed the surveillance videos of the exercises that Mr Panos did on a number of occasions in the gym, I do not accept that his level of disability makes it unreasonable to expect him to accept employment as a bar attendant.
It is therefore not necessary to consider in any detailed way whether Mr Panos' education, training and experience reasonably qualified him to accept work as a call centre operator, an inquiry clerk, or an inventory and supply officer. Mr Panos has had no history of performing work of that nature. His inexperience would obviously be a disadvantage to him in gaining employment of that type. On balance, however, I accept the opinion expressed by Ms Petersen.
Mr Panos gave evidence that he passed the security officer course with considerable difficulty. There was no evidence as to what was involved in doing that course. However, Mr Panos apparently had not worked as a security officer since 2001. The better view is, on balance, that on the relevant date Mr Panos' education, training and experience was not sufficient, without substantive additional education and training, to engage in work as a security officer.
Mr Panos has failed to establish that he is entitled to the TPD benefit that the Trustee has claimed on his behalf under the Policy.
In principle, Mr Panos should be ordered to pay the Insurer's costs on the ordinary basis. However, as there are other outstanding costs issues that must be dealt with, I will receive submissions on costs generally.

Panos v FSS Trustee Corporation

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