Mr Gilberg's Claim for a Benefit
32 There is no issue in this case that Rule 17(a) was satisfied - namely that Mr Gilberg's employment was terminated solely on the grounds that he was permanently incapable of performing his duties.
33 It is accepted that Rule 17(b) also was satisfied. Mr Gilberg put the Trustee in possession of reports from at least two medical practitioners that certified that he was incapable of performing his duties and would be unable ever to work again in a job for which he was qualified.
34 In conformity with Rule 17(c) the Trustee sought reports from medical practitioners selected by it. It appointed three such persons. Under Rule 17(c) only two need be appointed but there is no barrier to the appointment of others. If any two had stated that all conditions were satisfied Mr Gilberg would have been entitled to a TPD benefit without the necessity to appoint an additional medical practitioner under Rule 17(d). However, none of them was prepared to certify to this effect.
35 No disagreement arose about the matters referred to in Rule 17(c)(i) or (ii)(A). It was universally accepted that Mr Gilberg's employment ceased solely for the reason that he was permanently incapable of performing his duties as a waterside worker, and he remains permanently incapable of performing his duties as a waterside worker. The area of professional disagreement was whether Mr Gilberg would ever be able to work again in a job for which he is qualified by education, training or experience.
36 The Directors of the Trustee dealt with Mr Gilberg's claim for a TPD benefit at meetings held on 20 June 2003 (the first Directors' meeting) and 1 October 2003 (the second Directors' meeting).
37 At the first Directors' meeting the Directors noted that Mr Gilberg's claim satisfied Rule 17(a), (b) and (e).
38 They noted the appointments of three medical practitioners under Rule 17(c) - Drs I Howe-Scott [sic], G Hall and J Walsh. They further noted that 'the reports prepared by these practitioners met the conditions of Rule 17(c)' but went on to note that 'there was a conflict of medical evidence and therefore it was unanimously agreed to defer further consideration of this claim and to appoint an additional medical practitioner under Rule 17(d)'. The Directors recorded that they would 'base their determination solely on the medical opinion of the additional medical practitioner so appointed' as, in my view, Rule 17(d) requires.
39 The first medical practitioner referred to by the Directors was 'Dr I Howe-Scott'. This appears to be an error. The medical practitioner is Dr Inglis Howe Synnott. His report is dated 7 May 2003. Dr Synnott is a consultant psychiatrist. He was not satisfied, from a psychiatric point of view, that Mr Gilberg was incapable of performing his duties or that he would be 'unable ever to work again in a job for which the member is qualified by education, training or experience'. He emphasised that he had concentrated solely on the psychiatric perspective and was not addressing other considerations of a medical nature.
40 The second medical practitioner referred to by the Directors was Dr Graham Hall, an occupational and consultant physician. His report is dated 12 May 2003. Dr Hall regarded Mr Gilberg as unfit for work at that time, permanently unfit to perform the full duties of his original employment and, at the time that his employment was terminated, permanently incapable of fulfilling the full duties of his position. However he did not consider him totally and permanently unfit for all types of work. His specific comments were:- 'Whilst at present he remains unfit for work I do not consider him totally and permanently unfit for all types of work' and 'He is not unable ever to work again in any job for which he is qualified by education, training or experience. With continued treatment and perhaps some retraining or work experience it should be possible for him to return to the workforce. He does however, lack motivation.'
41 There may be a question about whether Dr Hall impermissibly allowed his assessment to be coloured by a consideration of the possibilities that retraining might offer. It does not really matter for present purposes. The important matter is that Dr Hall did not provide the necessary certificate that Mr Gilberg was 'unable ever to work again' and therefore Mr Gilberg did not, through this report, make any progress towards satisfying the condition in Rule 17(c) that two medical practitioners appointed by the Trustee also provide support for each element of his TPD benefit claim.
42 The third medical practitioner referred to by the Directors was Dr John Kingsley-Walsh, a consultant orthopaedic surgeon. His report is dated 7 May 2003. He stated pithily, addressing the matters required by Rule 17(c)(ii):-
'I do not consider that he is totally and permanently incapacitated from returning to a job by which he is qualified by education, training and experience.'
43 It may be seen, therefore, that none of the three medical practitioners to whom Mr Gilberg was referred by the Trustee for the purposes of Rule 17(c) was prepared to state that all the necessary conditions were met. In particular, none thought the requirement of Rule 17(c)(ii)(B) was satisfied.
44 It was in these circumstances that the matter was referred to Dr Christopher Oates under Rule 17(d).
45 At the second Directors' meeting the Directors considered a report from Dr Oates dated 13 September 2003 and as a result agreed that Mr Gilberg's claim should be declined.
46 Dr Oates prepared two reports, the first dated 13 September 2003 and the second dated 8 October 2003. It is to the first report only that the Directors refer in their meeting on 1 October 2003, rejecting Mr Gilberg's claim. The occasion for the preparation of the second report was that Dr Oates was asked by the Trustee to consider further material supplied by Mr Gilberg. His further consideration did not affect the conclusions in his first report.
47 Dr Oates said, in the first report to which the Directors referred, that 'Mr Gilberg is incapable of performing his normal duties as a stevedore'. However he did not believe that the other conditions were satisfied. He said:
'Mr Gilberg is not unable ever to work again in any job for which he is qualified by his education, training or experience. He would be eminently suitable for a semi-skilled or less skilled very light occupation in the field of clerical, service provision or security work, for example, as an office messenger, door attendant at a club, office building security desk attendant or security monitoring control room work.'
48 He added:
'The primary problem now is of de-motivation and psychosocial factors are the primary determinant of his current clinical status.'
49 His subsequent report dated 8 October 2003 confirms the conclusions in the first report. The second report says, in part:
'I do not resile from my previously expressed opinion that although Mr Gilberg is incapable of performing the normal duties of a stevedore, he is capable of performing alternative clerical type duties with the usual restrictions of no heavy lifting or bending and with the ability to alternately sit or stand as required for the comfort of his back.'
50 And also:
'My conclusion is that psychosocial factors are the primary reason preventing his rehabilitation into the work force in a modified capacity.'
51 In the event of a division of medical opinion about whether the stated criteria are met, Rule 17(d) requires the Trustee to select and appoint an additional medical practitioner to resolve the issue. Dr Oates was the medical practitioner appointed for that purpose. Furthermore, insofar as the Trustee must base its decision upon medical opinion as to that issue, it must base it on the opinion of the additional medical practitioner so appointed and no other medical opinion. In my view that is the plain meaning of the language used in Rule 17(d).
52 Dr Oates' opinion is clearly a 'medical opinion' about the relevant issues, in particular the issues raised by Rule 17(c)(ii)(B). His opinion on these matters is consistent with the opinions of the three medical practitioners whose reports were sought by the Trustee for the purposes of Rule 17(c), Drs Synnott, Hall and Walsh. It is contrary to the opinions expressed by the medical practitioners upon whom Mr Gilberg relied. Rule 17 required the Trustee to base its determination solely on Dr Oates' medical opinion. No occasion arose for weighing the totality of medical opinion. The Trustee in my view was correct to conclude that Mr Gilberg had no entitlement to a TPD benefit because the conditions for such an entitlement stipulated by Rule 17 had not been satisfied.