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Reynolds v Sunsuper Pty Ltd[2016] QDC 129

Reynolds v Sunsuper Pty Ltd[2016] QDC 129

DISTRICT COURT OF QUEENSLAND

CITATION:

Reynolds v Sunsuper Pty Ltd & Anor [2016] QDC 129

PARTIES:

LISA ANNE REYNOLDS

(plaintiff)

v

SUNSUPER PTY LTD 

(first defendant)

&

AIA AUSTRALIA LIMITED

(second defendant)

FILE NO/S:

2353/2014

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22 and 23 March 2016 and 23 May 2016

JUDGE:

Dorney QC DCJ

JUDGMENT AND ORDER:

  1. That judgment be entered for the defendants.
  2. That both the plaintiff and the defendants have leave to file, and serve, a submission on costs, if any, by 4pm 14 June 2016.

CATCHWORDS:

Insurance – Superannuation policy – Whether member entitled to TPD benefit – Not in dispute that Court to decide entitlement in this proceeding

LEGISLATION CITED:

TEXTS CITED:

CASES CITED:

Superannuation (Resolution of Complaints) Act1993 (Commonwealth)

Enright and Merkin, Sutton on Insurance Law, 4thed, Thomson Reuters, 2014, Vol 2

Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238

Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256

Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173

Banovic v United Super Pty Ltd [2014] NSWSC 1470

Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412

Chammas v Harwood Nominees Pty Ltd (1993) ANZ Insurance Cases 61–175

Davis v Rio Tinto State Superannuation Fund Pty Ltd (2002) 118 FCR 170

Edwards v Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Insurance Cases 61-113

Finch v Telstra Super Pty Ltd(2010) 242 CLR 254

Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Insurance Cases 60-751

Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913

Hannover Life RE of Australasia Ltd and Anor v Dargan (2013) 83 NSWLR 246

Hannover Life RE of Australasia Ltd v Colella[2014] VSCA 205

Ivkovic v Australian Casualty & Life Limited (1994) 10 SR (WA) 325

Machin v Board of Trustees of the State Public Sector Superannuation Scheme [2010] FCA 969

Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd[2011] NSWCA 204

McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579

McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197

Panos v FSS Trustee Corporation [2015] NSWSC 1217

Riley v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Insurance Cases 60-484

Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583

Shuetrim v FSS Trustee Corporation [2015] NSWSC 464

TAL Life Ltd v Shuetrim; Metlife Insurance Ltd v Shuetrim [2016] NSWCA 68

Wells v Australian Aviation Underwriting Pool Pty Ltd[2003] QSC 226

Wells v Australian Aviation Underwriting Pool [2004] QCA 43

Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme [2016] NSWSC 534.

Wiley v Board of Trustees, State Public Sector Superannuation Scheme [1997] QSC 46

COUNSEL:

M Horvarth for the Plaintiff

K F Holyoak for the First and Second Defendants

SOLICITORS:

Turner Freeman for the Plaintiff

Cooper Grace Ward for the First and Second Defendants

Introduction

  1. [1]
    The plaintiff, Lisa Anne Reynolds, claims an entitlement to payment as a member of the superannuation trust fund known as “Sunsuper”. That fund is constituted under a “Consolidated Trust Deed of Sunsuper” (consolidated to 16 July 2008). By Clause 11.4 (e), a benefit becomes payable in respect of a member when the member suffers total and permanent disability (“TPD”).
  1. [2]
    The trustee of that Deed is the first defendant, Sunsuper Pty Ltd. Pursuant to its obligations under that Deed it became the policy owner, as trustee, of Insurance Policy No MP 8032 issued by the second defendant, AIA Australia Limited.
  1. [3]
    Because the first defendant has agreed with the plaintiff that it will abide the decision of this Court (in the sense that, as trustee, it will take into account this Court’s decision when exercising its discretion, in accordance with the law, in relation to the claim for the TPD benefit), the plaintiff is not proceeding with her claim for the superannuation account balance at this time. This, as discussed below, has the consequence that the only issue for this Court to decide is whether the plaintiff has a viable claim under the Insurance Policy.

Background

  1. [4]
    The plaintiff, having born on 10 September 1960 is aged 55. Effective from 1 December 2011 she resigned her job as a head gardener (which she had had since 17 August 2009), citing recurring skin “cancers” which required ongoing treatment.
  1. [5]
    On 25 September 2013 she lodged an application for a TPD benefit. On 2 January 2014, the second defendant rejected that application.
  1. [6]
    Briefly, TPD is defined under the Consolidated Trust Deed in relation to a member such as the plaintiff, relevantly, as that which is defined in the “corresponding term” in the relevant Policy of Insurance, with the question whether the circumstances constitute TPD to be decided by the insurance underwriter. Accordingly, it is to the Insurance Policy that attention is to be directed for determining the relevant entitlement.
  1. [7]
    As decided in this State by McArthur v Mercantile Mutual Life Insurance Co Ltd,[1]a claim such as the plaintiff makes here usually proceeds in two stages in court. Those stages are: if it is first determined that through the fault of the relevant insurer an opinion as to the existence of the qualifying state of affairs was not duly formed; then, secondly, the court might proceed to decide, as a question of fact, whether such a state of affairs existed. In this proceeding, the question for this Court is solely “whether such a state of affairs existed”, the second defendant having conceded the first stage has occurred and the first defendant having agreed to abide by the order of the court.

Relevant Insurance Policy provisions

  1. [8]
    In the Insurance Policy, it is undisputed that the definition of TPD is governed by Part B of the definition (which appears in Clause 3). In its complete terms it relevantly reads that it “means that the insured member”:

“…Part B

Where at the Benefit Calculation Date, the Insured Member was Employed:

  1. (i)
    is unable to perform his/her occupational duties based on the work performed at the time of disablement by reason of an injury or sickness for a period of three (3) consecutive months since the Benefit Calculation Date as a result of the injury or sickness; and
  1. (ii)
    the Company, after considering all relevant evidence which is reasonably available, then determines that it is unlikely that the Insured Member will ever again be able to be gainfully employed in his/her usual occupation, or any other occupation for which he/she is reasonably suited by education, training or experience;…”
  1. [9]
    Concerning that definition generally, the defendants do not contest that:
  • Limb (i) of the Part B definition of TPD is met.

  • The assessment date is 1 March 2012, being that date which is three consecutive months since the Benefit Calculation Date (namely, the plaintiff’s resignation, or cessation, date).

  • The plaintiff has a skin condition with recurrent skin lesions and cancers which preclude her from working in outdoor occupations during daylight hours.

  • The plaintiff is not able to work in “her usual occupation” (which was that of an outdoor gardener), or do outdoor work; and her previous occupations are set out within Appendixes 2 and 3 to the defendants’ initial Submissions.

Subsidiary questions

  1. [10]
    As contended for by the plaintiff, these questions involve:
  • Whether the determination is restricted to considering full-time employment - or is part-time employment and, or alternatively, regular casual employment to be considered also?

  • Whether the determination is directed to a capacity to be gainfully employed or is it to the ability to obtain and maintain employment (i.e. availability)?

  • To what extent do the plaintiff’s treatment and its effects (once the nature of the ongoing treatment and ongoing effects is itself determined) affect the determination?

  • To what extent, if any, are unsuccessful applications for employment relevant?

  • To what extent, if any, is the plaintiff’s retraining as a long arm quilter, and the business she conducts as that, relevant?

  1. [11]
    The following matters are also not disputed:
  • The only “injury or sickness” which falls within the first limb of the TPD definition is the outlined “skin condition”.

  • The evidence to be considered by the Court in its determination is not confined to the evidence placed before the first defendant (pursuant to McArthur);[2]but, that apart, it is confined to admissible evidence which demonstrates whether or not the plaintiff met the definition of TPD as at the assessment date of 1 March 2012.[3]
  • Any evidence relating to improvement or deterioration since the assessment date is irrelevant except to the extent that it is “pertinent to the determination of the (claimant’s) condition at the relevant time”.[4]

  • The plaintiff bears the legal onus in this second stage of inquiry; but, nonetheless, an evidentiary onus falls on an insurer where an insured member asserts, on the basis of supporting medical and other evidence, that the member is unable to follow any of the occupations “described” in the definition of TPD (per Shuetrim v FSS Trustee Corporation;[5]being a question which was not agitated on appeal in TAL Life Ltd v Shuetrim; Metlife Insurance Ltd v Shuetrim[6]).

  1. [12]
    It is, further, not in dispute that, following that recent New South Wales appellate decision of Shuetrim, the meaning of “unlikely…ever again” is to be characterised such that “a real chance that a person would return to relevant work, even if it is less than 50%, will preclude an Insured Person being unlikely ever to return to relevant work”.[7]That test, necessarily, takes all relevant facts, including the age of the member, into account as at the assessment date. Finally, it was not disputed that “gainfully” means “for reward”.

“Capacity” v ability to obtain and maintain gainful employment (“availability”)

  1. [13]
    This question is central to the disagreement between the parties in this proceeding. While initially it appeared as if the definition of “At Work” in Clause 3 might be a useful tool in the interpretative exercise, the fact that it uses different explicit concepts directed to a different exercise of engagement with the Policy does not lead to divining some consistent usage throughout the Insurance Policy which is of assistance. As examined in the next section, the concept of labour market availability has a substantial, if not complete, overlap with the availability concept discussed here.
  1. [14]
    Since it is not in dispute that it is unlikely that the plaintiff will ever again be able to be gainfully employed in her usual occupation, the focus is on “any other occupation for which… she is reasonably suited by education, training or experience”. The term “education, training or experience” is commonly abbreviated to “ETE” and is used both disjunctively and conjunctively: see Birdsallat 427 [67]. I will use that abbreviation and its accepted usage. There is no dispute that the ETE application covers both an occupation which a member could, with reasonable diligence, acquire the abilities to do and an occupation which a member is capable of doing with further training that it would be reasonable to undertake (such as a short qualifying course of training or retraining). Thus, it is with respect to these “other” occupations – to be addressed later – that this argument about capacity versus availability is relevant. The defendants contend for capacity. The plaintiff contends for a species of general availability. Various lines of authority are martialled in support of each contention.
  1. [15]
    In considering the cases from which any conclusion is to be derived, it is necessary to bear in mind two particular interpretive principles.
  1. [16]
    The first principle is that the policy “should be given a businesslike interpretation giving attention to the language used by the parties, the commercial circumstances which the document addressed and the object which it was intended to secure”: see the specially constituted (five member) Court of Appeal decision of Hannover Life RE of Australasia Ltd and Anor v Dargan,[8]citing McCann v Switzerland Insurance Australia Ltd.[9]
  1. [17]
    The second such principle, also mentioned in Dargan, is that “it is important to bear in mind that the construction of a particular clause will not necessarily be assisted by the construction of somewhat similar but not identical clauses in other policies”.[10]
  1. [18]
    While the plaintiff in her written Submissions initially states that she accepts that it is the “capacity” for employment and not the “availability of a particular job” that is the relevant issue (citing Wiley v Board of Trustees, State Public Sector Superannuation Scheme),[11]she relies upon, amongst other cases, Machin v Board of Trustees of the State Public Sector Superannuation Scheme for the extended proposition that any approach which limits capacity to medical capacity without reference to “actual” availability of employment has been rejected.[12]
  1. [19]
    The defendants seek to distinguish Machinon numerous grounds, based upon contentions that:
  • The appeal to the Federal Court was from a decision of the Superannuation Complaints Tribunal solely on a question of law.

  • It is questionable whether the proper construction of the definition of TPD there “was fully argued”.

  • Reliance was placed upon Davis v Rio Tinto State Superannuation Fund Pty Ltd which, it is submitted, misstates the test proposed by the definition under consideration.[13]
  • Reliance was placed upon Riley v National Mutual Life Association of Australasia Ltdwhich, it is also submitted, was based upon a misconstruction of that decision.[14]
  • Wileywas not considered.
  • Except for the paragraphs mentioned (i.e. [89] – [90]), there was no discussion of the effect of the phrase “be able to…”, as appears in this proceeding.
  1. [20]
    Concerning Machin itself, the defendants submit that the focus of the case was on the interaction between the definitions in that document of TPD and PPD (“permanent partial disablement”).
  1. [21]
    A full consideration of Machinreveals that:
  • Daviswas simply one of numerous cases that, purportedly, were directed to considering the role, jurisdiction and obligations of the relevant Tribunal under the Superannuation (Resolution of Complaints) Act1993 (Commonwealth).

  • While most of those cases did concern the Complaints Actsome, particularly in and following paragraph [90], did not.

  • Those that did not concern the Complaints Actwere not expressly analysed in terms of whether the relevant clauses were “somewhat similar but not identical clauses”.

  • Although there was a focus on the interaction between the definitions of TPD and PPD, Dodds-Streeton J in Machindid discuss, albeit briefly, the dissenting decision of the President and held that the President “in contrast to the majority” simply considered the applicant’s entitlement to both a PPD and a TPD benefit “consistently, in my view, with a proper construction of the terms of the Deed and the Tribunal’s role” (this being made in the context where the matter was remitted to the Tribunal, differently constituted, for reconsideration according to law).[15]

  • Accordingly, Machinis not a strong basis, in my view, for uncritically following Davisand the decisions upon which it relied.

  • For the same reason, reference to Rileyneeds to be separately considered also [together with the other cases relied upon by the plaintiff that are mentioned in paragraph [91] in Machin(and in the plaintiffs’ written Submissions)].

  1. [22]
    Additionally, first, Wileywas not considered in Machin.
  1. [23]
    Secondly, Wells v Australian Aviation Underwriting Pool was also not considered in Machin, with the relevance of that being that the plaintiff expressly accepts that it held that, where the policy defines PTD (“permanent total disablement”) as, relevantly, prevention of “engaging in”, even that definition was “not directed geographically”.[16]If that is conceded, it is difficult to see how “actual” availability can be a necessity when there is no geographical limit to it, unless limited to the potentially elusive concept of a “real” occupation.
  1. [24]
    In Riley, Cosgrove J stated that the effect of the test posed by the TPD definition there was that one which could be paraphrased in the form of the following question:

“(I)s the incapacity of the plaintiff such as to render it unlikely that he will ever again become a regular member of the workforce (i.e. available for work and able to work) in any suitableoccupation?” (emphasis added): at 74,063.

It also should be noted that the TPD definition in Rileydid contain the phrases “engage in” or “work for reward in” and did not contain the phrase “be able to”; but, for present purposes, its relevance is that even on its face it does not contradict the notion of capacity, referring to “availability” of the “member” for work.

  1. [25]
    As for the reference in Machinto Ivkovic v Australian Casualty & Life Limited,[17]although it was held there that it would be necessary to take into account not only the physical capacity of the member but also the prospects of “ever actually being able to obtain employment in any relevant occupation”,[18]it is inconsistent with both Wiley and Wells[even at first instance (which is reported as Wells v Australian Aviation Underwriting Pool Pty Ltd)[19]] if it were to be interpreted as being wider than relating to a capacity to “be able to” “follow” the identified occupations in a general employment sense. As noted, this conclusion flows from the decision in Wells at first instance. There, McMurdo J, as he then was, considered a definition of PTD that defined the term in a way whereby the particular disablement would prevent the insured person “engaging in” the identified occupation or employment. He held that the fact of disablement should not turn upon “whether there was at any relevant time that opportunity” (such opportunity referring to the possibility that an employment opportunity would be created for him).[20]On appeal, it was held that the definition relatively fastened “on the capacity of the insured person to engage in the occupation or employment not the place where such work would or could be carried out” (emphasis added).[21]That discussion can be seen to be relevant to the clarity that should attend the identification of applicable occupations.
  1. [26]
    It is important to observe that the TPD definition was slightly different in Ivkovicfrom the one considered in this proceeding since it referred to being “unlikely ever to be able to follow… any other occupation for which he could be reasonably considered qualified by education, training or experience…”.[22]When the District Court of Western Australia was considering relevant authority as of assistance in interpreting that definition, it referred to both Giles v National Mutual Life Association of Australasia Ltd[23] and Edwards v Hunter Valley Co-Op Dairy Co Ltd.[24]The former contained “a clause with slightly different wording” (in that the reference was to being “(w)holly prevented… from engaging in any other occupation”).[25]The latter (where the TPD definition was phrased in terms of being “to render… incapable of… engaging in any other occupation for which he or she is qualified by his or her knowledge or training...”) was only commented on in terms of a “broad interpretation of ability to follow an occupation”.[26]As can be seen, the TPD definitions in both Gilesand Edwardscontain the word “engaging” (or its derivatives). But then they did so in Wells.
  1. [27]
    When both Riley and Ivkovic were considered in Wiley, White J (as she then was) resolved the case before her on the basis of the previously referred to test of “capacity ever again to work in a job for which he is reasonably qualified by education, training or experience, not that there is a particular job available”.[27]There was, therefore, no requirement for obtaining, much less maintaining, any occupation, even if “engaging” could have implied those conditions into other definitions.
  1. [28]
    Finally, the plaintiff relies upon Chammas v Harwood Nominees Pty Ltd.[28]Hodgson J made reference to “actual” availability of employment and “the question of likelihood of obtaining employment”: at 78,000. No basis was stated for that particular conclusion and it was prefaced by the words, “I think”. The definition of TPD was in terms of “disablement in being incapacitated for further employment”. Besides the definition being materially different from that in the present proceeding, Chammashas been trenchantly criticised in the later Court of Appeal decision of Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd.[29]Giles JA, with whom Young and Whealy JJA agreed, held that the reasoning to the result – although admittedly a comment with respect to the qualification for the entitlement by an ability to engage in part-time employment - was “not clear”: at [72]. It needs also to be remarked that other passages in Chammasare inconsistent with a reference to “actual” availability: see, for instance, at 77,999, referring to “employment which the member is capable of undertaking, having regard to his education, experience and training”. In any event, given the persuasive assistance to be derived from Wiley (as well as the Queensland Court of Appeal in Wells), any contrary reasoning should not be preferred. See, also, a similar approach adopted in the Victorian County Court decision of Long v United Super Pty Ltd & Anor.[30]
  1. [29]
    Quite recently, support for the capacity argument was bolstered by the Court of Appeal of the Supreme Court of Victoria in Hannover Life RE of Australasia Ltd v Colella.[31]It considered a TPD definition which the Court held could be relevantly paraphrased as a satisfaction that the claimant “will be unable at any time in the future to perform any other occupation”: at [16]. It can be immediately noticed that, although there is different wording between that and the definition in the present proceeding, those words permitted the Court in Colellato hold that:

: at [30].

  • The expression “unable to do any work” in the first limb is concerned with the capacity of the person to perform remunerative work of a kind for which the person is otherwise suited.

  • It does not follow that because a person is capable of performing one or more work tasks that person has a capacity to perform remunerative work.

  • The capacity to do work is dependent, in part, on a person’s background, training and skills and a person is not able to perform work unless that person has the asserted qualification, skill and experience to perform the work.

  • To be “practical” and meaningful, the concept of “capacity” to perform work must be in the context of an occupation or employment recognised in the community, because there is no useful concept of work outside of remunerative activity within the framework of existing occupations or employment.

  • The person may have the capacity to perform work even though the occupation or employment is not available in the town or region where the person lives, because the test is not concerned with the availability of employment or work to the person – rather it is concerned with a person’s capacity to perform remunerative work for which the person is otherwise suited.

  1. [30]
    Also important was the conclusion in Colella that the decision in Wellswas to the effect that the correct test focuses upon the capacity to perform remunerative work of a kind for which the person is otherwise suited: at [34]-[36]. Thus, if Wellsmight otherwise have been considered to be limited in its scope before Colella(either because it was argued on appeal by a self-represented litigant or because it was confined in its ratioto denying a geographical limitation), this endorsement is significant.
  1. [31]
    While the forgoing survey might well be seen to be more productive of confusion rather than of clarity, it has been necessary in order to reject the plaintiff’s contention that entitlement is triggered by the assessment of no real chance of actually “obtaining” and “retaining” employment. Given the wording of the whole of the Part B definition in this case, its overall context and the need for a commercial structure for its application, it is consonant with those imperatives that the contractual choice here concerning the entitlement is directed by the terms of the Insurance Policy to incapacity rather than unemployment, or an unavailable labour market position.

Relevance of ongoing treatment

  1. [32]
    Under this heading in the plaintiff’s written Submissions, reliance was placed upon both Banovic v United Super Pty Ltd[32] and the earlier decision of Sayseng v Kellogg Superannuation Pty Ltd.[33]
  1. [33]
    In Banovic, Hall J referred to the question as involving the determination of “how likely” it is that the person “would be able to find work or an occupation” for which the person is suited by ETE “taking into account all the limitations and practical realities of (the person’s) post-accident situation”: at [133]. An authority relied on was Alcoa of Australia Retirement Plan Pty Ltd v Frost;[34]but it, unlike the later case of Colella, had a TPD requirement of “engaging” – and, further, the analysis was limited to a consideration of whether the “sort of work” was available, not whether it was “obtainable” for the member: at [66].  As for Sayseng, Nicolas J referred to the expectation that “a realistic and common sense approach” would be taken because the application of the definition “is not about theory”: at [64]. Even after Sheutrim(on appeal), Robb J in Wheeler v FSS Trustee Corporation as trustee for the First State Superannuation Scheme[35]continued the Saysengproposition (expressed there as the consideration of the “actual, or real possibility of employment, rather than a theoretical possibility”): at [76] and [79]. He stated that this “survive(d) the decision in Shuetrim”: at [74] and [80]-[81]. It is my view that, to the extent (if any) that the proposition as to a “real possibility” seeks to embrace more than a “real chance” as identified in Shuetrim, it seeks to exclude the kind of “created” opportunity discussed at first instance in Wellsor it seeks to have acknowledged the fact of “substantial uncertainty as to the level of incapacity” referred to in Wheeler at [93]-[96]. Lastly, its TPD definition, in any event, concerned “engaging”.
  1. [34]
    I accept as valid the academic criticism of cases such as Banovicand Saysengwhich characterises their approach as importing a “labour market test”.[36]As considered there, these cases exemplify the elision, resulting in a confusion, between two separate tests. As the text goes on to state, it is a question of realistic physical capacity, not labour market availability. To the doubtful extent that this is a different consideration from the capacity versus availability argument, it must also be held that the question of ongoing treatment, to the extent that it is taken to be a relevant feature as at the assessment date, can affect the question of capacity. To do so is not to partake in some determination of theoretical capacity but to determine the prognosticated need for ongoing treatment as at the assessment date as part of the medical condition of the member insofar as it concerns capacity.

Full-time v other employment

  1. [35]
    To begin at the other extreme to full-time employment, the plaintiff contends that casual employment has been rejected as being employment for the purposes of TPD definitions [referring to both Dargan and Sheutrim(at first instance)].
  1. [36]
    But Darganis not so clear cut. The reference by the plaintiff is to that part of the judgment of Bathurst CJ at [46]. A close analysis of that paragraph does not, to my mind, establish that proposition. The judgment in this passage first referred to “Regular Remuneration Work”, which was defined to mean a person engaged in such work “if they are doing work in any employment, business or occupation”. It was held that there was no limitation on work being full-time or part-time, with the limitation being that work must be remunerative (that is, done for reward or hope of reward) and “must be regular”. Then, the word “regular” was stated to mean “something occurring at fixed times or uniform intervals” (relying upon cited Dictionary definitions). It was in that context that it was then stated thus: “it would not in the present context include casual work or other work of an intermittent nature” (emphasis added). Immediately afterwards, the judgment stated that, however, the word “regular” would not on a literal construction exclude part-time work. While the plaintiff stressed that the phrase “of an intermittent nature” was simply used to qualify “other work”, the defendants asserted that it qualified “casual work” as well. Given the discussion undertaken, I am inclined to the conclusion that the defendants are correct and that what it excludes, in the context of the purposes examined in Dargan, is “casual work… of an intermittent nature”.
  1. [37]
    Sheutrimat first instance at paragraph [39] is not helpful, particularly when the first instance decision was overturned without any consideration of this particular question (which was not emphatically, or in any way, the express subject of detailed consideration in that paragraph by Stevenson J).
  1. [38]
    The plaintiff also relied upon Chammas. There, Hodgson J concluded that the reference to “work for reward in any occupation or work” was a reference to full-time work: at 78,000. Yet, in Sheutrim, on appeal, the Court not only referred to Darganas authority for it being “settled law” that the person who can undertake part-time work is not totally and permanently disabled, it also referred to Manglicmotas authority as well: at [67]. As observed earlier, in Manglicmotit was held that the reasoning used to reach the result of part-time employment still being sufficient to engage an entitlement to TPD benefits “is not clear”: at [72]. On this question at least the TPD definitions are somewhat similar between this case and Manglicmot. It further instructs that it is not inherently unfair or unreasonable to construe a TPD clause as requiring “unfitness to work, without distinction between full-time work and part-time work other than by regard to the work which the member is reasonably capable of performing by reason of” ETE, because the premium for the policy “will be struck according to the need to be met, and that is found in the terms of the policy of insurance”: at [88]-[89]. Thus, cases such as Baker v Local Government Superannuation Scheme Pty Ltd[37] which have applied Chammaswith respect to “employment” being full-time work must also now be doubted.
  1. [39]
    Despite Dargan, the plaintiff has argued that in Alcoa of Australia Retirement Plan Pty Ltd v Thompson[38] - in which Chammas was distinguished because of the use of different words - it was Nicholson J’s suggestion that it is necessary to apply the definition in the context of the factual circumstances relating to the member (by considering the occupation and working hours at the time of the injury): at [67]. But, even so, the plaintiff did further acknowledge that this approach was not accepted in Dargan: at [54]. That non-acceptance followed a careful consideration of a relevant passage from Thompsonand an observation that Nicholson J had both “described authority on this point as inconclusive and was not prepared to allow the appeal on the ground the trustee had misconstrued the trust deed”: at [53].
  1. [40]
    Hence, I reject the approach in Thompson, preferring the approach in Dargandespite there being a difference in the definition with respect to capacity and “engagement”. That conclusion, thus, brings all three categories of occupations into play, provided the condition of regularity is observed. Although the definition in Dargandid, at least in a significant way, depend upon the use of “regular”, the reference to being “able to be gainfully employed” in the present context in which it is placed would indicate a similar condition. “Permanent” adds nothing of moment to the requirement of regularity.

Relevance of unsuccessful applications

  1. [41]
    As Manglicmotrecognised, there are often different requirements between the first and second limbs. It was held, there, that the period of absence from work in the first limb “was a requirement distinct from the extent of the member’s unfitness for work”: at [139]. It then referred to Finch v Telstra Super Pty Ltd[39]where the High Court held that the continuous absence from work for the six months required by the first limb “was a key guide to whether the member had the requisite disablement”: at 266 [18]. Nevertheless, as the judgment goes on to note, while, by the terms of the clauses in its case the absence from work must be as a result of or through injury, illness or sickness, the injury, illness or sickness “need not be that ultimately bringing the unfitness for work to the requisite extent”: at [139]. It is difficult to see from that analysis that either Court had in mind the issue of unsuccessful applications for work. What Finch does reinforce is the conclusion that one particular context for interpreting the second limb is the wording used in the first limb, which here focuses on whether the member “is unable to perform… her occupational duties” (emphasis added).
  1. [42]
    In Banovic, it was held that unsuccessful applications were to be considered as a matter to be taken into account: at [266]. But it is difficult to rely upon that decision which itself placed considerable importance upon Halloran v Harwood Nominees Pty Ltd[40]  when it was itself strongly criticised in Manglicmoton the basis that it was not sound to uncritically translate what particular judges had said about limitations (there, to full-time employment) to wording in different contexts, particularly where there has not been a “consistent course of construction or application of the common form wording or variants of it”.[41]
  1. [43]
    In Panos v FSS Trustee Corporation,[42]it was held by Robb J that evidence about difficulties in the job market at a particular time and the absence of successful job hunting were relevant, although it had to be assessed on a long term basis: at [462]. Like in Finch- and the like cases upon which Banovicrelied - the policy definition was phrased, at least in part, about “engagement” which, as explored above, potentially contains the inherent need for obtaining and, perhaps, maintaining work. With respect to Sheutrim, on appeal, yet again the relevant wording picked up the requirement of “engagement”. There is a principled reason why a “labour market” approach is rejected (which otherwise takes significant heed of applications which are unsuccessful), particularly where the lack of success may simply reflect general unemployment trends or preferred alternative applicants for the job, which means that, even if acknowledged, they are, here, of very limited utility. The reality under such an entitlement as here simply reflects a commercial basis for declining cover where unemployment itself could otherwise be sufficient to qualify the member for a TPD entitlement.

Plaintiff’s credibility and reliability

  1. [44]
    The defendants’ Submissions assert that the plaintiff gave some differing accounts of her employment history and did not establish, on the balance of probabilities, clearly, what the treatment and recovery regime consisted of, with her evidence being a subjective consideration of her treatment and recovery which, thereby according to her, imposed a major impediment to obtaining gainful employment, as distinct from the capacity to perform such gainful employment. To the extent that she gave evidence of an impediment, it was not based on any expertise and could not simply be used either for a legal or medical conclusion. Her evidence, with its limitations, simply forms part of the factual background to this proceeding.
  1. [45]
    The plaintiff’s Submissions on this score contend that the plaintiff did her best to give truthful answers in circumstances where she has received, and continues to receive, regular treatment over many years “for what is an upsetting condition for her”.
  1. [46]
    One of the significant problems for the plaintiff with respect to her employment history is that the statutory declaration and the written application for TPD were documents which the plaintiff, at trial, acknowledged contained inaccuracies. I do not find that she was deliberately untruthful when making such declarations. But, unfortunately (particularly because it does not appear to have been carefully checked), it does give rise to substantial difficulty in accepting her as an accurate historian, difficulties which were compounded by the fact that, although she gave evidence of 96 job applications (Exhibit 8), the only type of jobs she could remember when giving evidence at trial were those that she had applied for in May 2015 (Exhibit 24). The jobs which she undertook were thoroughly examined in her oral evidence and therefore need no further elaboration here given the plaintiff’s concessions concerning them and the contribution that they made to an understanding of her ETE. As for her “past” education and training, it is not disputed that, though she completed part only of year 10 (High School), she has obtained a Certificate II in Retail Operations in 2008 and, earlier, a Certificate in Horticulture Practices in 1997 (approximately).
  1. [47]
    As for her ongoing treatment, the plaintiff primarily relied upon the notes made by her general practitioner, Dr Collins; but she was unable to indicate a reason for a significant period of non-treatment which appeared in those notes which she acknowledged was contrary to her own recollection. Furthermore, the evidence of Dr Andrews, the medico-legal dermatologist, differed as to the after effects of the treatment and what restrictions they involved. This occurred in the context where a schedule of treatment was tendered on the plaintiff’s behalf (Exhibit 5) but where the plaintiff, in cross-examination, admitted it contained many inaccuracies. Such included:
  • That she had not had cryotherapy on every attendance, or even on every quarterly attendance.

  • There was a gap of one year from 29 September 2014 in which there was no treatment at all.

  • Exhibit 5 did not “always” state that the plaintiff had treatment to her hands, though she said that she recalled that.

  • Since Dr Collins was not called as a witness, it could be inferred from all of the evidence that all of his records were not admitted into evidence, although it cannot be inferred what they, on balance, would have shown without at least some elaboration or explanation.

  1. [48]
    The conclusion from the above analysis is that evidence given by the plaintiff can only be accepted as a general indication of her recollection, rather than some accurate statement of historical fact. But I do not find that she was in any way deliberately deceptive and that, to the extent to which she did exaggerate the effects of the skin condition treatment, it was because of her own experiences as subjectively recalled in the context of an ongoing dispute with the defendants.
  1. [49]
    Nevertheless, the consequence must be that the Court should rely upon documentary evidence where possible, together with evidence about the plaintiff’s own concessions about what kind of work that she could undertake as at the assessment date, guided by, at least in part, the nature of the occupations for which she later made job applications and guided by the expert evidence of Dr Andrews about the effect (including its duration) of the treatment that she would, as at the assessment date, likely undergo during her prospective working future as judged at that time.

Time period for consideration

  1. [50]
    Since both the plaintiff and the defendants agree that the date of assessment (being 1 March 2012) is the date to which all evidence must be directed with respect to the then, and prognosticated future, capacity, it is necessary to determine what the “ever again” period will be and what Dr Andrews’ time frame for “future” treatment was as at early 2012.
  1. [51]
    The plaintiff has submitted that the relevant period under the Insurance Policy for the treatment is the “next 12 years”. That is based upon the “Cover Expiry Age” in the Insurance Policy for “TPD cover” which is stated to be 67.
  1. [52]
    In the defendants’ Submissions it was contended that, at the date of assessment, the plaintiff was 51 years old with some “16 years until retirement”. It was further contended that the relevant period is not the next 12 years but those 16 years referred to, which began as at the date of assessment.
  1. [53]
    Thus, I conclude that this aspect of the time for “future treatment” spans from 1 March 2012 until 10 September 2027. There are 15.5 years in this period.
  1. [54]
    The second aspect revolves around determining the effect of the evidence of Dr Andrews that the plaintiff’s “solar damage” began in 2005, that such damage is “maximal” in the first 10 to 15 years, and that the damage then reduces in the frequency required for treatment. In context, as expressed by Dr Andrews, if one looks at the last 10 years, you are “looking at a snapshot of her maximal frequency of treatment”. Dr Andrews then opined that she “suspected” that the quarterly freezing would reduce in frequency in the next two to five years to half-yearly, or even yearly, occasions. This evidence was given in the further context where Dr Andrews rejected the suggestion that the past was a good indicator of the future, in terms of indicating treatment. Her reasoning was that, “with sun protection”, “everything starts to slow down” and the development of lesions “becomes less frequent and the progression of solar keratoses to SCCs becomes less frequent”, stating that the plaintiff “hadn’t had surgery for 12 months when” she last saw her on 7 September 2015.
  1. [55]
    Accordingly, as already indicated, I will look at the assessment date and apply the expert opinion on the accepted facts, bearing the principles in mind that are applicable to making an assessment as at that date but bearing in mind events that have actually occurred with respect to the treatment prognosticated.

Plaintiff’s work history and consequential “capacity”

  1. [56]
    As I have already canvassed, this is deficient insofar as it relies upon Exhibit 3 alone.
  1. [57]
    In the end, it does not matter significantly because the cross-examination of the plaintiff revealed that she accepted that all occupations that she was capable of doing were those which were identified in the reports of the psychologist, Ms Jessica Cucchiaro, and the rehabilitation counsellor, Ms Aelan Bradley, with the important qualification with respect to a full-time basis being on the proviso that her treatment regime could be accommodated. Also, with respect to part-time work or regular casual work, the plaintiff attached the qualification of organising her availability to accommodate her treatment regime. The expert assessments complied with the accepted ETE application to the skill set she had developed up to the date of assessment. It is important that the plaintiff accepted that she was “good at learning on the job” and had the ability to improve her existing skill set as at the assessment time. As for obtaining a Certificate IV in Small Business Management in 2013, it is not in issue that such does not fall within the ETE ambit, apart from demonstrating that, given the nature of the qualification and her retaining with its assistance in order to start up and successfully run, although with limited economic reward, a long arm quilting business, the plaintiff has the capacity to utilise computer skills which would come within the meaning of ETE in this case, provided no expose to the sun’s rays were to be encountered.
  1. [58]
    Such initial identified occupations covered:
  • General sales assistant, provided retraining was offered to upgrade her skills.

  • Process worker, with retraining and upskilling of her skills as a former process worker.

  • Hospitality worker.

  • Bar attendant.

  1. [59]
    Added to those were the following, which flow from particular job applications that she had made, involving:
  • Casual stock replenisher (by stocking shelves, possibly with retraining).

  • Indoor work in gardening sections of retail outlets.

  • Customer service officer (for a general retailer such as Bunnings).

  • Laundry attendant.

  • “All rounder” at cafés such as Muffin Break, with the exception of barista duty.

  • Fashion consultant at an outlet such as Noni B(although she might need retraining).

  • Retail sales assistant at a supermarket (such as Aldior IGA).

  • Each of the other occupations in Exhibit 24 (the plaintiff’s Job Application Document).

  1. [60]
    When specifically cross-examined about her work as a kitchen hand, the plaintiff conceded that she would accept full-time work if her treatment regime could be accommodated and would accept part-time or regular casual work by organising her availability around her treatment regime.
  1. [61]
    In terms of the capacities which Dr Andrews assessed the plaintiff as having the capacity to perform were:
  • Night filler (in a “light” warehouse role or as a shelf filler).

  • Retail sales assistant, such as in a bakery.

  • Process worker.

  • Hand packer.

  • General retail sales position.

  • Kitchen hand.

  • Laundry work.

  1. [62]
    Dr Andrews’ opinion was that, in general terms, the plaintiff was not precluded from working full-time or part-time “in an indoor occupation”. I accept Dr Andrews’ opinions, as refined in her oral evidence, both because they were not really challenged and because they were logical and objective. I note, at this stage, that Dr Godfrey Wagner, also a dermatologist, was called to give evidence. At least partly because his report was prepared on 29 September 2011 for the purposes of WorkCover Queensland only and therefore was directed to a different determination from this one, even though he had been given the reports of Dr Andrews, Ms Cucchiaro and Ms Bradley before trial, he added very little to Dr Andrews’ testimony and merely confirmed the other experts’ conclusions (concerning capacity) with the qualification of the need for time to recover from the skin condition treatment.
  1. [63]
    While I will, next, consider the various experts reports (from an expertise perspective) which deal with capacity, it is to be noted that the plaintiff’s Submissions accepted that the plaintiff herself conceded that she had transferrable skills which were set out in the reports of both Ms Cucchiaro and Ms Bradley (which were collected in Appendixes 2 and 3 of the defendants’ initial Submissions). In addition, the plaintiff’s Submissions not only accepted the occupations of salesperson, process worker (or packer), and bar attendant (or hospitality worker) but also noted that Dr Wagner accepted that the plaintiff could carry out the occupations identified by Ms Cucchiaro and Ms Bradley, again with the proviso for time off for treatment.
  1. [64]
    Putting to one side, for the moment, opinion evidence given by Ms Cucciaro and Ms Bradley specifically addressing accommodating ongoing treatment in the circumstances of job capacity, there is every reason to accept their conclusions based upon the matters that I have just noted (about their evidence and upon the matters that I will move to next). It is not relevant for the purpose of their expert opinions for them to have interviewed the plaintiff. They were not occupational therapists and each undertook a logical analysis concerning the plaintiff being “reasonably suited”, an analysis which covered the following aspects:
  • A transferrable skills analysis.

  • A real and proper analysis of vocational suitability.

  • An acknowledgement of the application of the actual policy definition.

  • An assessment performed noting the relevant assessment date of 1 March 2012.

  1. [65]
    As for their consideration of the impact of ongoing treatment (viewed as at the assessment date), both considered that annual leave (and potentially sick leave) could be used to accommodate treatment if full-time and, if part-time, leave without pay could be open to be utilised (although it was conceded that one factor would be any individual employer’s attitude). Further, even if age and appearance could be an issue in some of these occupations and even if some of the job advertisements selected by each of those experts could be criticised in some respects, the end effect of their combined consideration was that there were many occupations which were within the plaintiff’s capacity and that they covered the range from full-time work down to regular casual work. They were identified as occupations available for an application by a potential in the market place, as were those for which the plaintiff applied. As such, they meet any clear test of being “real” occupations rather than, for instance, special opportunities created for that member.
  1. [66]
    An occupational therapist, Mr Gordon Siebel, who was called as an expert on behalf of the plaintiff, failed, in my opinion, to establish opinions that should be given any weight. I have reached this conclusion based upon the following matters in his reports (where, after objection, some comments were ruled inadmissible) and his oral evidence:
  • His qualifications were, as accepted by him, as an occupational therapist only.

  • He conceded that “a large part” of his training was to assess the functional capacity of a person.

  • He did not perform any functional capacity, or limitation, test which was exposed in his reports, or at all.

  • No transferrable skills analysis was, in reality, undertaken by him.

  • He undertook no real, or proper, analysis of vocational suitability.

  • As for his selective list of jobs in Table 1 of his report, his answers in cross-examination revealed significant deficiencies, impermissible geographical exclusions, limited examination of job availability for certain categories, and concessions relating to some jobs that he had stated required experience but which might not have had that particular requirement attached to them.

  • He excluded from his consideration occupations the plaintiff had conceded were within her ETE (other than service in a bakery).

  • He limited his consideration of occupations and skills to post-1996 occupations.

  • He reached impermissible conclusions about the absence of transferrable skills into retail sales, hospitality or similar fields [not only by the absence of any transferrable skills analysis but also because he purported to base it upon “a view an employer would take when interviewing someone like (‘the plaintiff’)”].

  • No assessment which he made had regard to the assessment date of 1 March 2012.

  • His “opinions” were expressed on the basis of whether employment could be secured and retained on a long term basis.

  • His “opinions” concerning prejudice or discrimination against the plaintiff in seeking or securing employment were expressed as based upon generalised hearsay knowledge outside the basis of his expertise.

  • A concession was made by him that unsuccessful job applications could result from applications by persons who were more suitable to the particular employer than the plaintiff.

  • His opinions were in significant conflict with the plaintiff in terms of capacity as expressed by her, undermining any reliance on much of Table 2 (together with his concessions about this Table made in cross-examination).

Extent and duration of treatment for medical condition

  1. [67]
    It is not in dispute that the plaintiff has undergone and continues to undergo three different kinds of treatment. They are:
  • The freezing of lesions (cryotherapy).

  • The removal of lesions by either excission (and stitching the wound) or by curetting which leaves, initially, an open wound.

  • The application of Efudix, a chemotherapy cream (discussed in Exhibit 6).

  1. [68]
    There are photographs which were tendered, showing stitches, infections, blisters and scabs: see Exhibits 4 and 23.
  1. [69]
    Considering the unreliability of the plaintiff as a historian and because of the inadequacy of the records of Dr Collins, I accept the following is the best history of treatment that can be properly determined from the evidence led and the best present prognostication of future treatment (as advised by Dr Andrews, particularly from her oral evidence at trial), with it being noted that from 1 March 2012 to date these are simply matters which go towards the inevitability of the prognostication that would have been made with respect to the plaintiff’s then future treatment on 1 March 2012:
  • Recognising that the evidence demonstrates a gap of one year from 29 September 2014, the plaintiff has had, for approximately ten lesions on average on each occasion, cryotherapy treatment performed, generally, on a quarterly basis; but, in the next two to five years, that should reduce to half yearly, or even yearly.

  • The plaintiff had five removals by surgery of SCCs in the period from 5 December 2011 to 12 March 2016; and the development of SCCs which should require surgery should become less frequent in the future - plus the plaintiff has had other surgery in that period on four occasions, in circumstances where Dr Andrews observed that the plaintiff had not had surgery in the preceding twelve months before she examined her (despite the general indicator for all surgery being one to three times a year).

  • The plaintiff has had Efudixtreatment on two occasions during that period and, additionally, overall, generally one or two treatments ever is adequate “when it’s appropriately used”, with a two to five year period between applications to particular sites (such as the back of both arms and hands, which is less effective than to the face and neck).

  • Some of the cryotherapy and surgical procedures have been, and could continue to be, done together.

  1. [70]
    Dealing with the after effects, because of hesitations I have about the accuracy of other evidence, I intend to rely primarily upon the evidence of Dr Andrews (as clarified in her oral trial evidence) as to these effects, including her comments on Exhibit 27. Such effects are:
  • Regarding cryotherapy, after it produces a blister if it is deep (which is “less common”), for some one to two days afterwards the blister becomes weepy until it develops a hard scab and falls off within ten days to two weeks; but if it is not deep, it produces an early crusty scab, with “most often” patients returning to employment within one or two days after treatment.

  • During blistering and scabbing loose clothing could be worn, since physical activity “is not limited” and it is not reasonable for someone to wait for scabs falling off before going back to work since people “do not need time off work”, though if blistering occurs to the hands, it is “nice” not to be in a wet workplace and if gloves are “required” for work and blistering to the hands occurs, the gloves should not be worn for a couple of days.

  • Regarding stitching and curetting wounds, they generally recover after seven days, though those involving the legs may take ten days (and sometimes two weeks in total), with time off being approximately one week.

  • Bandages and band aids should be worn over stitches and curette sites, though physical activity is limited after stitches are inserted for some four to six weeks and approximately one week off work is required.

  • Regarding Efudix, “if you were very cosmetically affected” or if it involved “important” sites, “generally a three week period off work” would be expected.

  1. [71]
    As for any concerns about appearance which might be argued to detract from being gainfully employed, Dr Andrews expressed opinions that the plaintiff did not have many facial scars and that she “looks like most Queenslanders with a degree of solar damage, with increased wrinkling of the skin and with irregular pigmentation”.
  1. [72]
    Although Dr Andrews had stated in her report that the plaintiff’s treatment “is likely to keep her off work for two to six weeks per year”, when pressed in cross-examination about her assumptions, she responded - before further questions took her off the topic – that the plaintiff’s most recent history supported the two weeks. Dr Andrews never conceded that, insofar as the past treatment produced incapacities, the plaintiff would have been required to take six weeks off on any identified occasion. My task is to apply the relevant principles to the whole of the evidence for the purpose of a predictive assessment as at 1 March 2012. After considering all the relevant evidence concerning treatment, my conclusion is that, as at 1 March 2012, the prognosis for treatment required for the skin condition would have been that the plaintiff would require, for at least the remaining three years of the first ten year period beginning in 2005 and into the next five year period after that though with diminishing need, to be off work for a total period (in any one year) in the order of three to four business weeks, especially considering the history of surgery as indicative of what would happen in that sphere from the assessment date and that Efudix was, essentially, to replace the “freezing”. It is, further, concluded that, even though if stitching were required it would mean that physical strength would not be back to normal for some four to six weeks and even though surgery might require that affected hands (and arms) would need to be kept dry for seven days and that heavy lifting should be avoided, given the occupations considered, most of which have no aspect of heavy lifting in them and only few of which require significant physical strength or a requirement to work in a wet workplace, while some such occupations may thereby be ruled out, the general conclusion reached is that most of the remaining occupations would not present a problem in terms of requiring any further time off work. Finally, even at six weeks, the use of sick leave and annual leave entitlements should be able to accommodate any particular year if that were to be accepted as the top of the range instead of four weeks for those several occupations accepted as full-time options.

Effect of treatment on capacity

  1. [73]
    It was not disputed by the defendants that if the plaintiff proved that she was medically required by her treatment for her skin condition to be off work she was “not capable” within the meaning of TPD for that particular period. But their further contention was that any such temporary loss of capacity must be looked at in terms of the occupation for which such capacity was established and which could be undertaken even with that restriction, whether the occupation be full-time, part-time or regular casual employment. The defendants relied on the plaintiff’s many answers in cross-examination where she admitted that she had applied for such jobs, that those jobs were genuine jobs, and that those jobs were within her capacity, in circumstances where it might be expected that she was the best person to assess what was the extent of the disruption which the treatment regime entailed.
  1. [74]
    No evidence was led from any employer – or through any admissible opinion evidence that was based upon expertise – that the employers of persons within the range of “capacity” occupations that would be affected by some three to four working weeks incapacity, or even an occasional six week incapacity, during a working year would not consider the plaintiff for gainful employment, with some diminishing of that incapacity over the later period of the time of 15.5 years being an aspect of that consideration. To interpose here: even if the rejected argument of no real chance of “obtaining” such employment were to have been accepted, this would have provided a very significant, if not insuperable, hurdle. From the plaintiff’s subjective viewpoint, she had the capacity to perform a number of the jobs identified by Ms Cucchiaro and Ms Bradley with the qualification for full-time work of her employer accommodating her treatment regime. And no evidence was led about whether there would be insuperable difficulties accommodating that regime in terms of these occupations. As Ms Cucchiaro and Ms Bradley summarised the question of the potential use of leave (both sick and annual), it was a management strategy to utilise such leave such that if an employee were to have that leave and there were to be a requirement to take it, then it would be appropriate to do so. Moreover, concerning part-time work, it is clear that any such treatment regime could be more easily accommodated than when doing full-time work (because the plaintiff could organise her availability and roster around treatment requirements). As for regular casual work, she would be best placed with that of all the options to organise her availability and roster. But, as already concluded, even if regular casual employment is excluded, part-time employment in many of the identified occupations has not proved to be something for which there is no real chance that the plaintiff will ever be “able to be gainfully employed” in one of those occupations. If it were to prove necessary, I would reach the same conclusion for full-time employment.

Entitlement?

  1. [75]
    As submitted by the defendants there are many possible ways that the conclusions about the existence of the required “state of affairs” can be expressed. The way that best expresses my determination is that, having considered all of the evidence, I am not satisfied on the balance of probabilities that the plaintiff was, as at 1 March 2012, a member who was within the ambit of the definition of TPD in the Insurance Policy; and, as such, she is not entitled to the benefit it provided.

Quantum

  1. [76]
    Both the plaintiff and the defendants accept that the amount of the benefit payable under the Insurance Policy for a TPD entitlement is $75,000.00.
  1. [77]
    But, because of the conclusions reached, it is unnecessary to calculate the amount of interest, although it is noted that the plaintiff accepts both the defendants’ method of calculation of it and the amount so calculated of $10,395.00.

Summary

  1. [78]
    Since I have concluded that the plaintiff has not established her entitlement for TPD benefits as at 1 March 2012, there will be judgment for the defendants against the plaintiff.
  1. [79]
    Because there may be some arguments with respects to costs, I will give leave to both sides to file, and serve, any submission on costs by 4 pm on 14 June 2016. If no submission is filed, I will order that the plaintiff pay the defendants’ costs of the proceeding.

Footnotes

[1][2002] 2 Qd R 197.

[2][2002] 2 Qd R 197.

[3]Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412 at 45 [59].

[4]McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197 at 219 at [74].

[5][2015] NSWSC 464 at [48]-[50].

[6][2016] NSWCA 68 at [37].

[7]TAL Life Ltd v Shuetrim; Metlife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [89].

[8](2013) 83 NSWLR 246 at 252 [35],

[9](2000) 203 CLR 579 at 589 [22], per Gleeson CJ.

[10](2013) 83 NSWLR 246 at 225 [49].

[11][1997] QSC 46.

[12][2010] FCA 969 at [89] – [90].

[13](2002) 118 FCR 170.

[14](1986) 4 ANZ Insurance Cases 60-484.

[15][2010] FCA 969 at [132].

[16][2004] QCA 43 at [16].

[17](1994) 10 SR (WA) 325.

[18][2010] FCA 969 at [90].

[19][2003] QSC 226.

[20][2003] QSC 226 at [26].

[21][2004] QCA 43 at [17].

[22](1994) 10 SR (WA) 325 at 327.

[23](1986) 4 ANZ Insurance Cases 60-751.

[24](1992) 7 ANZ Insurance Cases 61-113.

[25]Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Insurance Cases 60-751 at 329.

[26]Edwards v Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Insurance Cases 61-113 at 351.

[27][1997] QSC 46.

[28](1993) ANZ Insurance Cases 61–175.

[29][2011] NSWCA 204.

[30][2014] VCC (18/12/14) at [28].

[31][2014] VSCA 205.

[32][2014] NSWSC 1470.

[33][2007] NSWSC 583.

[34][2012] VSCA 238.

[35][2016] NSWSC 534.

[36]See Enright and Merkin, Sutton on Insurance Law, 4th ed, Thomson Reuters, 2014, Vol 2 at [21.360].

[37][2007] NSWSC 1173.

[38][2002] FCA 256.

[39](2010) 242 CLR 254.

[40][2007] NSWSC 913.

[41][2011] NSWCA 204 at [87].

[42][2015] NSWSC 1217.

Close

Editorial Notes

  • Published Case Name:

    Reynolds v Sunsuper Pty Ltd & Anor

  • Shortened Case Name:

    Reynolds v Sunsuper Pty Ltd

  • MNC:

    [2016] QDC 129

  • Court:

    QDC

  • Judge(s):

    Dorney DCJ

  • Date:

    07 Jun 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QDC 12907 Jun 2016Judgment for the defendants on the plaintiff's claim pursuant to a total and permanent disability benefit as a member of the superannuation trust Sunsuper (determination that the plaintiff was not totally and permanently disabled within the meaning of the Sunsuper insurance policy): Dorney QC DCJ.
QCA Interlocutory Judgment[2016] QCA 23314 Sep 2016Respondent's application for security for costs granted before Appellant's application for leave to appeal: Philip McMurdo JA.
Notice of Appeal FiledFile Number: Appeal 6764/1604 Jul 2016-
Appeal Discontinued (QCA)File Number: Appeal 6764/1602 Nov 2016Appeal dismissed by consent.

Appeal Status

Appeal Discontinued (QCA)

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