Wilkin v TAL Life Ltd[2016] QDC 157

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff claims a “total and permanent disablement” (“TPD”) benefit under a group Policy of Insurance, bearing Policy Number GR 780-GL, entered into between TAL Life Limited (the first defendant), as insurer, and Australian Super Pty Ltd as Trustee of the Australian Super Fund (the second defendant), as trustee of that Fund.

2. [2]
   Since, on the first morning of the trial, a consent order was sought, and granted, that the plaintiff’s claim against the second defendant be dismissed subject to the further terms of that consent order, the issues for the Court are limited to the causes of action, if any, sustainable against TAL Life Limited (“TAL”).

Background

3. [3]
   There is no dispute that TAL has provided death and TPD cover for the benefit of certain members (which included the plaintiff) since 1 November 2009 under the Policy of Insurance. It is also not in dispute that the terms of the policy relevant for the present dispute are contained in the “second endorsement” to the policy, taking effect from “the commencement of 29 May 2010”.

4. [4]
   Clause 4.3 of the Policy of Insurance sets out the obligation to pay a TPD benefit. Specifically, by clause 4.3.1, if an insured member, such as this plaintiff, with TPD cover in force (as here) “suffers” TPD, TAL “will pay” the Trustee a TPD benefit.

5. [5]
   Clause 2 of the Policy of Insurance contains the general applicable definitions. TPD is defined as follows:

“… TPD… means:

1. Members engaged in employment…

in the case of an insured member who immediately prior to the date of disablement, was employed… , either:

Option 1

i)the insured member has, as a result of illness or injury:

1.been continuously absent from his or her employment…; or

2.…;

for a period of at least 3 consecutive months following the date of disablement where that period commenced before the insured member’s 65^th birthday; and

ii)we have determined after consideration of medical and other evidence that it is unlikely that he or she will ever be able to engage in any occupation,

where:

any occupation means:

1…; and

2.…an occupation based on the skills and knowledge the person has acquired through previous education, training and experience…”

General legal issues

6. [6]
   In McArthur v Mercantile Mutual Life Insurance Co Ltd,^[1]as stated by Muir J (as he then was), with whom McMurdo P agreed, where payment is dependent on the formation by a party to a contract of an opinion as to the existence of a state of affairs and the opinion is not duly formed through the fault of that party, the court may proceed to decide, as a question of fact, whether such a state of affairs exists; and, having made a determination in favour of the insured, the court may then order payment of the sum which would have been payable had the insurer’s opinion been duly formed in favour of the insured: at 218 [72].

7. [7]
   Since I consider that I am bound by McArthur, it is that two-stage process which is to be followed here. Although no legal onus applies until litigation starts, the plaintiff bears the onus in this two-stage process, while an evidentiary onus falls on the insurer: see Sheutrim v FSS Trustee Corporation.^[2]

Relevant dates

8. [8]
   The plaintiff applied for a TPD benefit under the Policy of Insurance on 21 March 2014. It has been, and still is, not in dispute that the plaintiff suffered from asthma and “was continually absent from his employment” for 3 consecutive months. This followed the cessation of his work with LiquipSales Qld Pty Ltd(“Liquip”) on 5 April 2013, although his employment was not terminated until about October 2013. This means that 5 April 2013 is the relevant “date of disablement”. Since the plaintiff was born on 29 January 1966, he is currently 50 years of age; and therefore his 65^thbirthday will be well after that relevant date.

9. [9]
   It is, further, not in dispute that when construing a TPD definition such as here the relevant time to assess the claim for the TPD benefit is at the end of the 3 month waiting period, namely, 5 July 2013.

10. [10]
    TAL’s final decision was made on or about 6 January 2015 and communicated by its letter of that date. An earlier decision had been made on or about 10 December 2014 and also communicated by a letter of that date. There had been many letters sent by the plaintiff’s solicitors to TAL before the final decision: see Exhibit 3.

11. [11]
    The claim in this proceeding was filed on 24 April 2015.

Statutory overlay

12. [12]
    Although it was common ground between the plaintiff and TAL that the obligations on TAL, whether imposed by statute or the common law, did not matter in this proceeding because both would trigger the same outcome, it is necessary, since it was put in issue in the pleadings to make some brief reference to it.

13. [13]
    The plaintiff pleaded that both s 48A(1)(a) of the Insurance and Contract Act1984 (Cmth) (“ICA”) and s 55 of the Property Law Act1974 (Q) (“PLA”) applied. There was also raised, coincidentally, the statutory implied term of utmost good faith imposed by s 13 of the ICA.

14. [14]
    In my view, the decision of the New South Wales Court of Appeal in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim^[3]is definitive on this issue, at least with respect to the ICA. There, Leeming JA, with whom Beasley P and Emmett AJA agreed, held that:

• Section 13 of the ICA, prior to relevant amendments introduced by the Insurance and Contracts Amendment Act2013, merely imposed obligations of utmost good faith upon the “parties to the contract, that is to say, upon each of the insurers and the Trustee”: at [48].

• Those amendments (which also included the “new” s 48A) were not applicable since “the transitional provisions make it clear that they do not apply to policies… entered into prior to 2013”: at [48] - here, it is noted that this Policy of Insurance was also prior to 2013.

• Where the insured under the relevant policy of insurance was the trustee, such that there was no dispute that could exist between the insurer and the insured and, further, where the trustee promised to remit payment of any TPD payment to the member if and only if the payment was made to the insurer, obligations owed by the trustee to the member in equity and under statute are not directly applicable: at [50].

• Relying upon Edwards v The Hunter Valley Co-op Diary Co Ltd,^[4]the general obligations owed by the insurer under the policy to a member claimant were: that there was an implied obligation on the insurer to consider and determine whether it should form the relevant opinion; that such involved a consideration and determination of the correct question; and, that, in the exercise of powers affecting the interest both of itself and the claimant, the insurer was under a duty of good faith and fair dealing which required it to have due regard to the interests of the claimant: at [51].

• The reasoning in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd^[5]was inapplicable since the insurance policy did not extend to the member personally: at [52].

• Since, apart from the referred to statutory provisions, no allegation of a duty of utmost good faith was made, it was arguably open to the plaintiff to sue for a breach of duty owed by the insurer TAL to the trustee in circumstances where the trustee was unwilling to do so: at [57].

15. [15]
    Section 55 of the PLA is a statutory provision which was enacted consequentially upon Trident. As already noted, it is unnecessary to decide this particular matter but, given the decision of the New South Wales Court of Appeal in TAL, it is open to argument whether, given the specific terms of the ICA (especially provisions such as s 48), there is relevant constitutional inconsistency between the State and Commonwealth legislation. Importantly for present purposes at least, the allegations made in paragraph 8(b) of the plaintiff’s reply were not examined in evidence at the trial of this proceeding and, therefore, it is impossible anyway to make any definitive ruling about the present applicability of s 55 of the PLA.

Duty of good faith and fair dealing

16. [16]
    As examined in the New South Wales Court of Appeal decision of TAL, the insurer’s duty involves the following propositions:

• The determination of TPD by an insurer, such as TAL, does not turn upon the “fact” that the member is unlikely ever to undertake employment but, instead, “is expressed to turn upon the state of mind of the insurer”: at [60].

• The insurer, in considering the matter and reaching a state of satisfaction, is required to act reasonably: [61].

• There are limits as to what flows from the obligation to act reasonably – in particular, since reasonable persons may reasonably take different views, unless the view taken by the insurer can be shown to have been unreasonable on the material then before the insurer, the decision of the insurer cannot be successfully attacked on this ground: at [62].

• There is an obligation on the part of the member to provide evidence in support of his or her claim: at [63].

• The clause does not turn on the insurer being satisfied that the member will “never” be able to resume employment, but the lesser threshold that he or she is “unlikely… ever” to do so: at [64].

• The above determinations are subject to the obligations of good faith on the part of the insurer as well as the (overlapping) implied obligations to act reasonably and to do all that is necessary to enable the other party to have the benefit of the agreement: at [65].

• The words “any occupation or work for which he or she is reasonably qualified by education, training or experience” – words which are a little different from but very similar to those in this Policy of Insurance - known as the “ETE” clause, materially narrow the scope of the coverage given by the TPD definition from the perspective of the member: at [66].

• It is “settled law” that a person who can undertake part-time work is not totally and permanently disabled: at [67].

• There is a real difficulty in accepting the unqualified applicability of Weber v Tiss Pty Ltd^[6](to the effect that “the insurer’s statement of reasons for declining a claim should be understood as a practical document intended to inform the claimant of the basis of the decision rather than detailed reasons with reference to the evidence relied upon comparable to a judgment of a court or tribunal”) because the letter in question was “no ordinary letter declining cover”, in circumstances where it was “near inconceivable” that the author of the letter was unaware that it would be scrutinised at the final hearing which was shortly to take place, nor that it had been reviewed by lawyers: at [120] and [152].

• Accordingly, if there was a failure by the insurer to consider a body of material, it was a breach of duty by the insurer, whether that duty be formulated as a duty of utmost good faith or of good faith and fair dealing: at [154].

“Unlikely… ever”

17. [17]
    Although I have, earlier, briefly referred to this phrase, it is important to expand on that brief reference.

18. [18]
    In TAL, the New South Wales Court of Appeal spent some considerable time analysing, in particular, White v Board of Trustees, State Public Sector Superannuation Scheme.^[7]

19. [19]
    Furthermore, in TAL, the clause in question which contained that phrase, insofar as it affected TAL, was in terms as follows:

“… to the satisfaction of us that the Insured Person has become incapacitated to such an extent as to render them 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…” (emphasis added): at [10].

20. [20]
    After undertaking that analysis, the Court of Appeal in TAL determined that the meaning of “unlikely ever” was “that where there is a real chance that a person may return to relevant work, even though it could not be said that a return to relevant work was more probable than not, the insurer would not be satisfied that the definition applies” and, thus, “unlikely ever” is, in this context, much stronger than “less than 50%.”: at [88].

21. [21]
    The Court of Appeal then stated the following further conclusions:

• To make an assessment of TPD, it is not sufficient for the insurer to be satisfied that it is more likely than not that the person will never return to relevant work.

• On the other hand, if there is merely a remote or speculative possibility that the person will at some time in the future return to relevant work, an insurer will not, acting reasonably and in compliance with its duties, be able to be satisfied that the person is not TPD.

• The critical distinction is between possibilities that are readily contemplatable even though they may not be more probable than not, and possibilities which are remote or speculative.

• A real chance that a person will return to relevant work, even if it is less than 50%, will preclude a member being unlikely ever to return to relevant work.

• : at [89].

22. [22]
    In applying that test of “unlikely ever” in TAL, the Court of Appeal stated the following propositions:

• A mere expression of hope that a person will return to a relevant form of work is insufficient to sustain an opinion that the clause is not satisfied.

• Conversely, clinical evidence that there is a real chance of returning to work will sustain an opinion that the clause is not satisfied.

• However, it is not the case that an opinion in terms that “in the ordinary course with appropriate treatment the person would return to a relevant form of work” would necessarily be insufficient to sustain an opinion that the clause is not satisfied and, to the contrary, it might (though it would depend on the particular facts and the degree of uncertainty) – but, additionally, it might, also, warrant deferring the assessment date.

• : at [111].

When is an insurer’s determination “unreasonable”?

23. [23]
    The aspect of this issue which arises for consideration in this proceeding is the extent to which, if any, a reference by an insurer such as TAL to wording that was not exactly the same as in the Policy of Insurance could, nevertheless, be seen to be reasonable even though the reference was “incorrect”.

24. [24]
    In Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd,^[8]Hallen J (after referring to relevant authorities) stated a number of relevant principles involving the insurer’s obligations (at [105]) as follows:

• The insurer must consider, and determine, the “correct question or questions” and this, essentially, requires the correct interpretation of the Policy of Insurance.

• If the insurer seeks an opinion from an expert, it must provide the expert with all the information that is relevant to the expert’s opinion.

• When an expert opinion is sought, the expert must also be asked the right questions.

• Asking the right questions of an expert, however, does not require the insurer to ask the expert to address specific provisions in the policy, because the insurer is itself making the ultimate decision; and the critical inquiry for the court is whether the insurer, ultimately, has “addressed the correct question either directly, or indirectly with the aid of the expert’s opinion” and has taken account of the relevant information either directly or indirectly, in respect of relevant information assessed by the expert.

• The insurer is under a duty to act in good faith and observe fair dealing in respect of both the trustee and the insured.

• As part of this duty, the insurer must have due regard for the interests of the insured.

• Where a state of affairs governing entitlement of the insured to a benefit is to be determined after consideration by the insurer, the insurer must act reasonably in considering the matter and coming to its conclusion.

• However, the insurer is not required to undertake the detailed consideration required of a court hearing, but it must take account of the relevant information available to it.

• (Relying upon Weber, the statement of reasons for declining a claim should be understood as a practical document intended to inform the claimant of the basis of the decision rather than detailed reasons with reference to the evidence relied upon comparable to a judgment of a court or tribunal.)

• If the view taken by the insurer “can be shown to have been unreasonable on the material before it”, the insurer’s decision can be successfully attacked.

• If the insurer’s decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the court.

25. [25]
    It was, thus, argued on behalf of the plaintiff that the “correct” question was simply part of the determination of unreasonableness.

26. [26]
    On appeal, in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd,^[9]Basten JA stated the following proposition in reference to what was described as “a relevant consideration that each (of the insurer and trustee) ought to have considered and it was unreasonable for each not to do so”:

• While the adoption of such a dual test, applicable to both the insurer and the trustee, reflected the inadequacies of the pleading, if either, or both, failed to take into account material they ought to have considered, any opinions so formed was “invalid and ineffective” – and it is not clear that unreasonableness was a condition of a failure to consider.
• If the opinions were unreasonable, they may have been invalid “on that separate basis”.

: at [7].

27. [27]
    That decision appears to indirectly provide support for the proposition that while unreasonableness can lead to an invalid decision, it may not be the only basis for invalidity. Here, the term relied upon by TAL, incorrectly used the expression “ever able to engage in regular remunerative work for which he or she is reasonable (sic!) suited by” ETE (emphasis added). While there may not be much difficulty with “regular remunerative work”, the term “reasonab(ly) suited” is different from an occupation “based on the skills and knowledge the person has acquired through previous” ETE. The difference is important because the use of “reasonable” has been used by the courts to extend the ETE to cover “reasonable…further training”: see, for example, Dargan at 429 [80]-[81]. It may be doubted whether the basis of skills and knowledge alone embraces other than introductory training courses.

28. [28]
    The plaintiff relied, further, upon Rusterholz v Board of Trustees of the State Public Sector Superannuation Scheme.^[10]There, Byrne SJA addressed a ground of objection to the decision whereby “the Board is said to have dealt with the appeal inappropriately (in) that it failed to consider the correct question”: at [35]. As analysed, at the outset of its reasons, the Board had stated the “Issue to be Resolved” in a way which was “not the right question”: at [36]. Nevertheless, as noted by Byrne SJA, “as it happens”, the Board “answered the right question rather than the one posed initially”: at [37]. It was thus, unsurprisingly, held that, in the circumstances, the Board’s decision “did not miscarry merely because it had initially expressed the issue infelicitously” (emphasis added): at [40].

“Capacity”?

29. [29]
    The plaintiff’s written submissions accept that it is a capacity for employment and not the availability of a particular job that is the relevant issue, relying upon Wiley v Board of Trustees, State Public Sector Superannuation Scheme.^[11]The actual words in the judgment were:

“… it was submitted that there was no evidence that the applicant had available to him a job which could utilise his limited capacities. The test is that 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.” (additional emphasis added)

30. [30]
    The plaintiff, again in those written submissions, accepted that the Policy of Insurance here is not directed geographically to a place where such capacity would or could be carried out, accepting the authority of Wells v Australian Aviation Underwriting Pool.^[12]It is to be noted that the TPD definition in Wells referred to “… disablement… which would prevent the Insured Person engaging in each and every occupation or employment for wage or profit for which he or she is reasonably qualified by training, education or experience…” (emphasis added): at [4]. It has not been submitted here that “engag(ing) in” adds any additional factor to the concept of capacity.

31. [31]
    Yet, despite those concessions, the plaintiff contends that “actual availability of employment and the question of likelihood of obtaining employment” are relevant questions to be addressed, specifically referring to Chammas v Harwood Nominees Pty Ltd.^[13]The definition of TPD in that case depended upon the employee “being incapacitated for further employment”.

32. [32]
    It is to be noted at this point that:

• Such a policy as this “should be given a businesslike interpretation giving attention to the language used by the parties, commercial circumstances which the document addressed and the object which it was intended to secure”: see Hannover Life RE of Australasia Ltd & Anor v Dargan.^[14]

• “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”: see, also, Dargan at 225 [49].

33. [33]
    Chammas - although with respect to the reasoning that only full-time employment was covered - was held to have reached a conclusion that was “not clear”: see Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd.^[15]There are other passages in Chammas which might be seen to be inconsistent with that reference to actual availability: see, for instance, the reference to “employment which the member is capable of undertaking, having regard to his education, experience and training”: at 77,999.

34. [34]
    In the resolution of this concept, it does not add much to rely upon statements such as that by Hall J in Banovic v United Super Pty Ltd^[16]that the question involves 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], when “finding”, or “obtaining”, such work is contrary to the concessions referred to above and where “limitations” and “practical realities” appear to add little to the true notion of what “capacity” means (because they would be aspects of that particular determination anyway, at least to the extent to which they are directed to capacity).

35. [35]
    The conclusion which I reach is that an attempt to rely upon actual availability impermissibly strays into what has been called “a labour market test”. The application of such a test in these circumstances has been the subject of academic criticism.^[17]As considered in that criticism, the real question is one of realistic physical capacity and not one of labour market availability.

“Full-time” or “part-time” or “permanent casual” engagement? 

36. [36]
    This issue was, briefly, referred to above at paragraph [16] of these Reasons. The reference there to “settled law” referred to both Manglicmot and Dargan.

37. [37]
    Although Dargan did depend upon the consideration of the word “regular” as it appeared in the term “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”), and although the principle about the use of different words is undoubtedly of utility here, the word “regular” was held to mean “something occurring at fixed times or uniform intervals”, with the reliance for that conclusion being based upon certain cited Dictionary definitions. Despite TAL’s submissions to the contrary, given the remarks by the High Court in Finch v Telstra Super Pty Ltd^[18]about the “public significance of superannuation” (at 271-272), it is inherently unlikely that the testing of the “ability” to “engage in any occupation” is to be interpreted as falling outside something occurring at fixed times or uniform intervals, because that would entail rejection of any TPD claim where there was a real chance of returning to work in an occupation even though that claimant had only a capacity for irregular engagement. Hence, the different wording here does not effect, necessarily, a different result.

38. [38]
    It is also significant that in Dargan a five person Court of Appeal sat. Among the cases it considered was Manglicmot. The matter was important because Mr Dargan was unable to work full-time but (subject to the training issue) was capable of working part-time as a taxi driver for 20 hours per week: at 252 [33]. Dargan specifically referred to Manglicmot in circumstances where it was stated, by Bathurst CJ on behalf of the Court, that it “can be seen” that the relevant clause in the policy considered in that earlier case “effectively incorporates the definition of Regular Remuneration Work in the present policy”. In that particular paragraph [25] in Dargan, the definition of TPD relevantly contained the words, “in our opinion being incapacitated to such an extent as to render the Insured Person unable ever to engage in or work for reward in any occupation or work which he or she is reasonably capable of performing by reason of education, training or experience”. When that particular TPD definition is set side by side with the one in the present proceeding, it is difficult to escape the conclusion that Dargan, and in particular Manglicmot, are both highly persuasive, if not determinative. In particular, Dargan rejected the approach in Alcoa of Australia Retirement Plan Pty Ltd v Thompson,^[19]with respect to which Dargan stated that it “involved the construction of a provision substantially similar to that construed in Manglicmot”: at [53].

39. [39]
    It is no doubt true that cases can be martialled on both sides of this particular argument. Nevertheless, when Dargan is closely analysed, it is possible to determine that even casual work which was not“ of an intermittent nature” would fit within the “purpose” of a policy which provided benefits for TPD but “not partial disablement”: at 254-255 [46]-[47].

40. [40]
    In consequence, I accept in this proceeding that not only part-time work but also regular remunerative casual work would fall within the purview of the TPD definition here. For reasons later to be considered, even if this TPD definition did not have that width, there may well be seen to be “occupations” satisfying the ETE criteria which are part-time or regular or permanent casual, if not full-time.

Plaintiff’s background

41. [41]
    The plaintiff completed Grade 10 in 1979.

42. [42]
    Between 1980 and 1984 he completed a sheet metal work apprenticeship at Regent Sheet Metal. Until 1987 he continued working at Regent Sheet Metal doing general fabrication as a tradesperson.

43. [43]
    Then, between 1987 and 1989 he worked at building bus bodies at Dennings, Acacia Ridge.

44. [44]
    Subsequently, between 1989 and 1995 he worked as a labourer doing general fabrication at Multi-Craft Engineering. After that, he did some further work at a number of different places as a fitter/welder until 1997 when he started working with Liquip. His actual employment was terminated in about October 2013 after the earlier cessation of his duties in April 2013 (discussed earlier).

45. [45]
    He has obtained a number of different vehicle licences. Besides his car licence, he obtained a Heavy Rigid (“HR”) truck licence in or about 2008 and in 2010 he obtained both a high risk work licence (from the Queensland Building Centre) and a trailer (multi-combination) (“MC”) licence. Although he never worked as truck driver as an occupation in itself, he did drive trucks while working for Liquip, where he was required to pick up and drop off trucks; and a second occasion was when he drove for the Moreton Bay Regional Council with whom he obtained casual employment in 2014.

46. [46]
    Although the plaintiff also obtained a forklift license, he did not work in any occupation as a forklift driver.

47. [47]
    As for the licenses he obtained, he was qualified to carry passengers, although he never transported passengers, even though he drove a bus while working at Liquip.

48. [48]
    The plaintiff has never worked as a courier or taxi driver and has never had a taxi license.

49. [49]
    Because significant emphasis was placed by TAL on the plaintiff’s work with the Moreton Bay Regional Council, it is necessary to examine it even though it was after the assessment date, since it was before the final decision by TAL (which considered it to be important).

50. [50]
    The job came about because one of the placement firms to which the plaintiff had applied for work, after his asthma induced cessation, was with Alpha Workforce. Although he advised that he had asthma and that fumes could be “an issue”, he did obtain a “casual labouring job” with truck driving duties. This was between 10 April 2014 and 13 June 2014. Exhibit 4, which is a Maintenance Diary Index of the Moreton Bay Regional Council, contains details of the general work assigned to the plaintiff and the hours that he worked at this job. The plaintiff’s general account of the time was that he did “very limited” strenuous labouring and that he would be breathless when doing it.

51. [51]
    When cross-examined, the plaintiff, in answer to a suggestion that he was capable of lifting loads that were expected of a general labourer, responded that the Council put him on as a truck driver and “didn’t specify about the lifting or anything like that”. When again it was put to him that he satisfied himself that he was capable of performing all the tasks it required, he answered that he “didn’t know what was going to be involved on the job” and that it was “just signs and stuff, as far as I was concerned”. When, yet again, it was put to him that he was satisfied that he was capable of performing the lifting work undertaken by a general labourer, his answer was that he “wasn’t too sure until (he) got in there and (saw) what was involved”.

52. [52]
    When further cross-examined about his entry on the “Fitness for Work Health Declaration” in the application form that he had “occasional” asthma, he stated that it was “on exertion” and that it was “occasional in April 2014” because “it was well controlled” and because then it was “stable”.

53. [53]
    After acknowledging that he “almost worked the equivalent of full-time hours” during his time at the Moreton Bay Regional Council, he accepted that he finished in mid-June 2014 because his casual contract term expired. Although he applied for an interview for further jobs after that with the Council, even though he acknowledged that he made applications because he was interested in continuing to work with the Council, he stated that he “wouldn’t have been able to do the… heavy labouring part of that job, with the concreting”.

54. [54]
    When the cross-examination then turned back to the actual work that he had done with Moreton Bay Regional Council, the plaintiff asserted that:

• Though initially he stated that he never dug a hole, he did admit that he was “pretty sure” he “might have done one”.

• He drove a dual-cab truck.

• Although he “didn’t drive every time”, he drove that truck from the depot to various job sites during the course of a day.

• He spent about two to two and a half hours a day driving to jobs.

• When driving that truck he had one passenger.

• With respect to the concrete bags which weighed about 20kg (although he was “not sure”), he “probably” lifted one or two the whole time he was there.

• He did not use a concrete cutter at all although he used a generator, on occasion, but he did not lift it.

• He “probably” carried posts that weighed between 10kg and 20kg, which was work that he “shared”.

• With respect to concrete work, he would do the easy part of the job, though he did remember that he did a concrete kerb.

• He did lift tiles off the footpath and replaced them with a temporary tarmac, though the work “wasn’t hard and heavy pushing or anything like that” and it involved “only a small tile”.

• He did “a bit of top dressing”.

• With respect to removing graffiti, all he did was “spray paint over it”.

• Concerning picking up rubbish, it was “just getting a stick and picking it up off the ground”.

• He did a bit of concrete grinding (which was “dusty” work).

• He did help in concreting in posts.

55. [55]
    TAL, at trial, called a person who did some work with the plaintiff while he was undertaking this job with the Moreton Bay Regional Council. Mr Glen Mayhew only recalled working with the plaintiff some four or five times. His evidence was to the effect that his “impression” of the plaintiff was that he performed as a regular labourer, that he was not treated any differently and that he did not recall him coughing or experiencing any breathing difficulties. When taken to Exhibit 4, he was unable to identify any document which showed that, according to the Maintenance Daily Diary, he worked with the plaintiff at all. His explanation was that he was “probably there on occasions when someone else was the leading hand, perhaps”. When cross-examined about specific occasions, with respect to the replacing of broken tiles and putting some temporary tarmac down, he answered that it “took us probably longer to get there than actually do the job”. In particular, he could not remember who carried the two or three buckets of tarmac. When asked about his memory of concreting or jackhammering, he could not remember the former, adding that a separate crew did that sort of thing and, with respect to the latter, he “couldn’t specifically say” that the plaintiff was doing those sort of activities. In summary, he agreed that he barely remembered him, in the sense that he spent four or five days with him over two years ago.

Effect of later obtained medical evidence

56. [56]
    In TAL, quoting McArthur, it was held that there was no doubt that medical opinions expressed prior to the insurer’s final letter were “relevant to the consideration by TAL of the probability” of that member being able to return to work after the earlier relevant assessment date, holding that medical reports coming into existence after the relevant time will be admissible provided that they are “pertinent to the determination of the (claimant’s) condition at the relevant time”: at [150]. The Court remarked that McMurdo P had agreed with Muir J on that respect and that McPherson JA had also agreed with this aspect of Muir J’s reasons, adding that it accorded with “the principle that the court does not speculate when it may know”: also at [150].

57. [57]
    In TAL the Court of Appeal then went on to hold that - with the same principle applying to an insurer as to a trustee - to knowingly exclude relevant information from a consideration would be a breach of duty: at [154].

First stage of inquiry

58. [58]
    Exhibit 3 contains the documents that were available to TAL at the time of its decision on 6 January 2015 – although it also includes the letter of that date and the second defendant’s letters of 4 February 2015 and 16 February 2015.

59. [59]
    Among the documents available to TAL was the Alpha Workforce application of 7 April 2014. In addition, there were several reports from the Prince Charles Hospital under the hands of Drs Fong and Marshall, some joint and some sole. There was also a report from the plaintiff’s then GP, Dr Sawhney, as well as the expert report from Dr Heiner, a consultant thoracic physician, dated 24 May 2013.

60. [60]
    Two particular aspects of the medical reports are important. The first, as noted in the decision of 6 January 2015 of TAL, is that Dr Sawhney, in his report dated 20 August 2014, had stated that the plaintiff’s chronic obstructive lung disease “can get exacerbated by pollution and dusty environments” and that if the plaintiff did work as a bus or truck driver it would “render him liable to coughing fits that can prove dangerous to him and other drivers on the road”. With respect to that, the decision of TAL in that letter completely ignores anything that a reasonable person might have thought arose from it, including either distinguishing or rejecting it on the basis of other identified medical evidence or seeking a further opinion (perhaps to be obtained by the complainant/plaintiff) from either the Prince Charles Hospital or from Dr Heiner.

61. [61]
    Secondly, the joint report of Drs Fong and Marshall from the Prince Charles Hospital dated 1 October 2014, under the heading entitled “Return to work?”, noted that “with optimal treatment and demonstrable stability, we are reasonably confident that Mr Wilkin could return to work in some capacity” (emphasis added). They then stated that “this will be dependent on the natural history of his lung disease and required ongoing medical evaluation” (emphases added). That specific report was not referred to at all in that letter of 6 January 2015. It must also be remarked that the letter from Dr Marshall to Dr Mishra, after a clinic review of 15 October 2014, noted that the plaintiff’s “lung function is not as good as it has been, although he feels generally well controlled”, with the report then remarking that it “may be that he is too tolerant of his symptoms” and adding a further comment about whether he may benefit from switching medication.

62. [62]
    Even if it were not possible to determine that TAL, though quoting the wrong terminology with respect to the eligibility for a TPD benefit, did not reach an invalid decision – though that is doubted [for the reasons concerning reasonable training (or retraining) examined earlier] - it is the clear view of this Court that, whether the relevant duty be formulated as a duty of utmost good faith or of good faith and fair dealing, on a proper reading the letter of 6 January 2015 as a whole, TAL either knowingly excluded or failed to consider relevant information concerning medical matters from or in its consideration, particularly in circumstances where (to use the wording adopted in TAL, on appeal) this was “no ordinary letter declining cover”. That conclusion does not ignore the principle that TAL was the one making the determination and that different persons might reasonably hold different views about the relevant documents in question. But this discloses a breach of duty, or a failure, or manifest unreasonableness, leading to invalidity.

63. [63]
    Thus, it is necessary to move to the second stage of inquiry.

Effect of unstable medical condition

64. [64]
    Principles governing how an insurer is to determine whether or not the relevant TPD definition has been satisfied were examined by Robb J in Wheeler v FSS Trustee Corporation (as Trustee for the First State Superannuation Scheme).^[20]Referring to the discussion in TAL (on appeal) about the possibility of “deferring the assessment date”, he stated that this “peripheral observation” in that decision may support the proposition that in some cases the assessment should be deferred to give at least a reasonable time in the circumstances for the level of incapacity suffered by the fund member “to become as clear as possible before the assessment is made”: at [95]. He then turned to a consideration of the prospect that many illnesses and injuries “will lead to a substantial long-term uncertainty of outcome”: at [96]. He noted that the question will be whether the insurer’s duty of good faith and fairness to the fund member will require, in an appropriate case, that the insurer defer the assessment of the fund member’s complaint until there has been at least a reasonable opportunity for the condition of the fund member caused by the illness or injury to stabilise, at least to the greatest extent reasonably possible, to give a sound basis for the application of the TPD definition: also at [96]. He then held that that would involve an attempt to remove, as far as is reasonably possible, the degree of uncertainty of outcome caused by uncertainty about the level of incapacity suffered by the fund member and that it would lead to a conscious attempt to minimise the possibility that claims by fund members with genuine TPD were wrongly rejected because of an “irrelevant uncertainty” as to the true level of incapacity as at the assessment date: also at [96].

65. [65]
    Since I have concluded that TAL did not properly consider the medical evidence from both the Prince Charles Hospital and from Dr Sawhney, the issue of a justifiable uncertainty of outcome potentially arises again in this second stage if this Court, in applying the principles applicable to its consideration, also reaches the conclusion that there still exists that relevant uncertainty as to the true level of incapacity.

66. [66]
    Although I will, later, analyse the evidence led at trial for the application of the correct principles to the evidence which is probative of the question of whether this plaintiff is in fact incapacitated in the relevant way - even where that evidence has been brought into existence after the date of the assessment and before the date of determination - it is clear that the evidence led at this trial concerning what “occupations” were open to the plaintiff on the application of the relevant tests at the relevant date were those which required driving of a motor vehicle of one kind or another. If it be the case that the medical evidence that I do accept shows that there is continuing uncertainty, at least for some continuing period of time - even if it be a short period - into the present future, about the outcome of the application of the relevant test here for TPD, it seems to me that the deferring of the actual assessment may well be justified. It may well be that such a justified deferral takes the consideration beyond what this Court can now decide and back to a future decision by TAL itself, as the appropriate decision maker under the Policy of Insurance, to be made in accordance with law. In Finch it was held that it would only be appropriate not to remit the matter (there to the trustee) if it were to be concluded that it “was incapable of approaching the task of forming its opinion satisfactorily”: at 281 [67].

67. [67]
    While it will be necessary to consider these matters in more considerable detail later, I raise them now so that they provide a context for the continuing consideration of what should be the outcome of this second stage of inquiry.

Plaintiff’s credibility and reliability

68. [68]
    In the written submissions of TAL it contended that the plaintiff was an “unreliable historian, with a tendency to exaggerate and limit, or omit, matters which were adverse to him”. In seeking support for that contention, six specific matters, among undisclosed others, were relied upon.

69. [69]
    Turning, first, to the claims of severe coughing. There is medical evidence that if the plaintiff’s asthmatic condition is not stable he can be subject to severe coughing. Dr Edwards, a thoracic physician, even though he was somewhat sceptical about the extent of the plaintiff’s complaints, acknowledged that the records of the Prince Charles Hospital showed that the plaintiff – if he were to be accepted in his recorded history on clinical examination - did not have “severe coughing” when he was on adequate treatment. Dr Edwards stated that the coughing is “related to airway inflammation”, noting that airway inflammation “can be treated very effectively with enough inhaled steroid treatment”. It also should be noted at this point that Dr Edwards stated that it was “correct” that if the plaintiff was having coughing fits, then he should not be driving a car. Later, in subsequent cross-examination, Dr Edwards stated that coughing fits were consistent with the plaintiff’s asthmatic condition and that “some people get very severe coughing fits with airway constriction. They do”.

70. [70]
    The plaintiff was extensively cross-examined about the times when he stated that he suffered the particular coughing fits which led to make him “keel over” (otherwise described by Dr Edwards as “fainting”). TAL’s written submissions postulated two possible explanations for the onset of symptoms such as the “coughing fits”. While, obviously, this partly depends upon issues of credibility and reliability, it is also open, as is acknowledged in those submissions, that his reduced compliance with his medication explains both the medically observed worsening in his asthmatic condition and the improvement, close at times to a position of stability, when examined with concurrent lung function testing. For example, on 20 November 2013, the plaintiff achieved his highest FEV1 result of 2.91 (which Dr Edwards acknowledged was “significantly better than it is now” in his report dated 29 April 2016, at page 6).

71. [71]
    When cross-examined about his coughing fits which led to fainting, the plaintiff repeated statements in his examination-in-chief that he could identify four such occasions. When asked when each occurred, he stated that:

• He had one in 2014, “maybe say towards Christmas”.

• He had “a couple last year”, but that he could not remember what time it was during 2015.

• He was “sure” that there was one “a couple of months ago”, “say February”.

72. [72]
    It is noted that Dr Edwards’ “report” of 7 June 2016 stated that the pre-August 2014 medical reports do not mention a “persistent or severe cough”. As he then observed, a persistent cough, whether random or not, is “a sign of unstable asthma”. As he further opined, any persistence “is probably the result of his non-compliance with medication and onset of uncontrolled asthma”. This is not inconsistent with the plaintiff’s evidence as to those times. While the plaintiff accepted, under cross-examination, that such extreme coughing presented a risk to other road users, including to any passenger that he carried, he did state that he minimised driving to address that risk. Nevertheless, he readily accepted that he carried his pre-teenage son, particularly to soccer on weekends, as a passenger, although he also took him in his car when towing a boat for fishing and, until April 2015, when carrying “dirt bikes” where he would engage in riding with his son.

73. [73]
    While I accept that on its face there is a disharmony in that approach, given the difficulties of public transport in the area in which he lives, particularly on weekends, and given the fact that he had contact with his son only on weekends, some understanding of what he does is accepted, particularly when the concern that he expressed about serious injury or death was primarily with respect to being required to undertake driving as the essential obligation in any occupation that was suggested to be available to him.

74. [74]
    Perhaps more concerning is that, despite the medically accepted need to avoid dusty environments as well as his own evidence about his wish to do so, he did until mid-2015 ride his dirt bike, monthly, in places where he accepted that it was “dusty”, sometimes for about two hours. Despite those concerns, the medical evidence was unanimous that he did have an asthmatic condition that, when analysed by all relevant thoracic specialists, was still not stable even at this time, despite there being a strong contest between the parties to this case about the reasons for that.

75. [75]
    With respect to the work that he undertook for the Moreton Bay Regional Council, from the analysis that I have done earlier I do accept, generally, his account of what he actually did. I do not accept that the “contrary” account of what occurred (or the purported qualification of what he did) was as given in the unconvincing evidence of Mr Mayhew. In particular, I conclude that the evidence of the plaintiff as to this short-term contract work does not have any significant adverse effect on my assessment of his credibility and reliability.

76. [76]
    The challenge by TAL about his recollection of the number of job positions for which he had applied, being primarily a discrepancy between the one job application set out in Exhibit 5 to the Moreton Bay Regional Council and the greater number shown in Exhibit 6, is rejected. The inconsistency is readily explicable on the grounds that the latter applications were all made in the aftermath of the cessation of his short-term contract with the Moreton Bay Regional Council (as were those in Exhibit 11), whereas the job applications set out in Exhibit 5 detail the applications on and from early December 2014 to 18 May 2015 (which is the last of the applications set out in Exhibit 5).

77. [77]
    Lastly, I reject TAL’s submission that the plaintiff stopped using his medication around August 2014 “to advance his prospects of recovering under his TPD claim”. While I detected, as noted, inconsistencies in his evidence, I do not accept that his credibility was in any way successfully challenged, although his reliability, particularly as an historian, contains many features that might cause doubt as to the accuracy of “when” things occurred – though not to descriptive accuracy, at least in a general sense, of the nature of his restrictions and labouring limitations. I accept that the recorded history, particularly in the numerous letters and documents of the Prince Charles Hospital (which were not the subject of any objection), is an accurate record of what the plaintiff both suffered and actually told the examining specialists, being consistent with the conclusions that I have reached about his credibility.

78. [78]
    It is instructive with respect to his labouring limitations that, when assessed by the occupational therapist, Ms Nancy Stephenson, she had observed that he had “fatigued easily during the functional capacity assessment”.

79. [79]
    Hence, the conclusion that I reach is that, while the reliability of his present recollection of past events is fuzzy as to its accuracy insofar as it concerns either timing or good compliance with his medication regimes, what is of utility, particularly on the medical front, is that the many objectively recorded test results made by the medical staff at the Prince Charles Hospital demonstrate the restricted breathing capacity that he did have which has been a matter which was objectively tested and recorded.

“Any occupation” and a qualifying ETE

80. [80]
    As explained by the NSW Court of Appeal in Birdsall, the ETE clause contains words that are used “both disjunctively and conjunctively” and refers to that particular “education, training and experience” which is to be assessed as at the time the question of capacity is to be addressed: at [67].

81. [81]
    The first matter that needs consideration is the effect on determining whether such an occupation as that engaged in for the work undertaken with the Moreton Bay Regional Council is within the TPD definition.

82. [82]
    Although one of the reports considered by TAL when it made its decision on 6 January 2005 was a Vocational Assessment Report from Ms Lisa Rea – which was a report that was dated 23 August 2013 and contained, in its Summary, a conclusion that the plaintiff was “currently unfit for work” and that there was “available medical evidence that suggests that (the plaintiff’s) injury is unstable” - the only suggested “options” that were considered were: courier; truck driver; and taxi/bus driver.

83. [83]
    The obvious conclusion from that Report should have been that it never has been open to TAL to take the work undertaken with the Moreton Bay Regional Council as relevant to anything apart from the truck driving aspect of that work, even though the Moreton Bay Regional Council work was later in time. This is because a Claims Assessor for the second defendant had, on 10 December 2014, in a document held by TAL at 6 January 2015, pointed out that “we do not believe the member’s restricted lung function would enable him to work as a Labourer”. Yet despite that, cross-examination of the plaintiff and the calling of Mr Mayhew were directed towards performance of a labourer probably because TAL’s rejection letter of 6 January 2015 did rely on his capacity to be a labourer, despite the Trustee’s view.

84. [84]
    More importantly, there was no expert evidence of a vocational functional nature which was led at trial to even suggest that labouring fell within one of the relevant “occupations” that might engage the TPD definition here.

85. [85]
    Given all those just discussed matters, the labouring work that the plaintiff did in mid-2014 adds little to determining that the identified driving positions are, or are not, relevant “occupations”.

86. [86]
    It seems an inevitable part of these cases that claimants lead extensive evidence of applications, invariably unsuccessful, for various types of positions and are then subjected to minute criticism concerning the kinds of positions applied for and the “less than forthcoming” information provided. While it is completely understandable that part of the any claimant’s case is that the claimant did seek out work and thereby has demonstrated the claimant’s sincerity in making the claim, it is difficult to find their place in the pyramid of relevance, although, as Hallen J in Birdsall (at first instance) remarked, mere failure, in the usual circumstances which simply explore only to the application (and the nature of it), does not lead to the conclusion that the claimant satisfies the TPD definition: at [156].

87. [87]
    In the end, the authorities which I do accept concentrate both on the question of whether there is the capacity to undertake the particular occupation about which a proper vocational assessment has been made of such capacity and on the further question of whether there are jobs which actually do exist.

88. [88]
    Accordingly, it is necessary then to look at the occupational and the vocational assessment experts and, then, to assess whether the expert thoracic medical opinions permit conclusions that those occupations that are identified are within the correct determination for the purposes of the “unlikely ever” test.

89. [89]
    The only Occupational Therapist called as a witness at the trial was Ms Nancy Stephenson. She was called by the plaintiff. Her qualifications as an occupational therapist were not challenged. She produced two Reports, one dated 20 July 2015 and one dated 16 May 2016.

90. [90]
    In the physical assessment of the plaintiff, Ms Stephenson observed, relevantly for present purposes:

• He was observed ascending and descending 13 stairs, and mild breathlessness was observed and reported.
• He was able to manage climbing three rungs of a ladder.
• He has a poor tolerance for repetitive lifting.
• He does not have the physical capacity to load heavier luggage into the boot of a car or in the undercarriage of a bus.
• His capacity to repetitively lift and carry loads is poor.

91. [91]
    When Ms Stephenson’s attention was directed to making an assessment as at 5 July 2013, she expressed the opinion that she had not believed that her assessment of the plaintiff differed between that date and the date of her actual assessment on 14 July 2015, though it should be noted that the plaintiff had then sustained an elbow injury which later healed (but she was not cross-examined on its effect on the actual observed and measured results). Her conclusions were that the occupations of truck driver, courier, forklift operator or taxi/bus driver were occupations which were not suitable to the plaintiff. This was based on her opinion that the plaintiff was no longer suited to driving jobs “because of the fact that he has had coughing fits and dizziness which could endanger himself or others”. She also stated that, in addition, many driving jobs require manual handling “which exceeds his assessed safe lifting capacity of sedentary demand”. One important aspect that emerges from Ms Stephenson’s report of 16 May 2016 is a reiteration of the fact that the plaintiff “fatigued easily during the functional capacity assessment”.

92. [92]
    Ms Stephenson’s evidence at trial contained acknowledgments that one of her assumptions was that the plaintiff’s asthma condition was “unstable” and “uncontrolled”, acknowledging that she would be defer to thoracic specialists on whether the plaintiff was “actually fit to drive in the roles” that she had identified.

93. [93]
    With respect to one further possible occupation, namely, that of working part-time in a bait and tackle shop, even though she acknowledged that she had not performed any transferable skills analysis when she assessed the plaintiff, she stated that if an employer was willing to take the plaintiff on even though he was a person who has not had a lot of sales experience (and none specific to the industry), had certain medical conditions, and may not be able to do lifting of heavier things such as cartons and boxes on a repetitive basis, he might be able to do that occupation “on a very part-time” basis. I reject this as an “occupation” as its inclusion was not assessed correctly and no real investigation was done concerning the skills and knowledge required.

94. [94]
    The only evidence which was called which addressed a transferable skills analysis approach was that given by Dr Karole Atkinson, registered psychologist. She was called by TAL. Again, her expertise was not challenged about her capacity to undertake a vocational skills analysis relevant to this ETE. Her conclusion was that the plaintiff “was reported to possess reasonable transferable skills that could be utilised in alternate occupations”. There were three vocational options which were stated to be appropriate “in accordance with” the plaintiff’s ETE. They were: taxi driver; bus driver; and light delivery driver/courier. According to the evidence of Dr Atkinson, as at July 2013 all such roles could have been available to persons seeking them. Apart from introductory training courses, little beyond the plaintiff’s driving skills and knowledge were required for these occupations.

95. [95]
    When Dr Atkinson was called to give evidence at the trial, she openly acknowledged that, since Dr Edwards’ latest report was the last report prepared, she based her own assumptions about medical capacity to engage in relevant occupations on that report of Dr Edwards dated 20 April 2016. For reasons that are later expressed, that is an assumption that I am prepared to accept, subject to those further significant qualifications made in the evidence given by Dr Edwards at trial.

96. [96]
    When cross-examined about the occupation of a bus driver, Dr Atkinson readily conceded that such an occupation required a commercial driver’s license, also noting that there was a pre-medical assessment required by the employers of “urban” bus drivers. She was of the view that the occupation of a “coach driver” was not suitable. In response to questions about the effect of changes in humidity and temperature, Dr Atkinson stated that the shifts for, for instance, the Brisbane City Council required the driver to be seated in an air conditioned bus for up to five hours, adding that the same applied to other urban bus lines and Kangaroo Bus Lines. It was also elicited from Dr Atkinson that bus drivers were on casual contracts, although they could work for twenty hours or more a week if they wished. She described such a job as a “permanent casual” job, with the ability to work up to forty hours per week, although in her written report she referred to it as part-time work, as well.

97. [97]
    As for taxi driving, she stated that a taxi license was required, as was a medical. With respect to luggage, Dr Atkinson asserted that “taxi drivers are under no obligation to assist passengers, unfortunately, these days”, also noting that they “don’t even have to get out of the car”.

98. [98]
    As for courier driving, she stated that some organisations such as QML requested a pre-employment medical, while others did not and that a job as a medical or parcel courier would be full-time. Dr Atkinson agreed that the job of courier was such that it “can be” a fast paced job and that it was “right” that the driver could be “getting in and out of the vehicle…..constantly”.

99. [99]
    Dr Atkinson added that a pizza delivery driver or food delivery driver came under the general occupation of “delivery driver”. At least for a pizza delivery driver, it was “permanent casual position”.

100. [100]
     Lastly, Dr Atkinson conceded that these occupations had as one of their premises the need for the plaintiff’s symptoms to be “improved”, conditionally conceding that, if the symptoms were to remain as they then were, it would be “correct” that the plaintiff was “not capable of these jobs”.

101. [101]
     Regarding the occupation of a courier, Mr Christopher Humphrey was called to give evidence by TAL. He was the Workplace Health and Safety Manager for Sullivan Nicolaides Pathology based at Taringa in Brisbane. He indicated that there were a variety of positions covering full-time, part-time and casual work. His description of the usual kind of role that couriers undertook and their characteristics were:

• Driving around, usually in a small car (such as a Yaris).
• Driving to a variety of collection centres, picking up the specimen samples and delivering them back to the laboratory.
• Dealing with a work load which is “reasonably light to moderate”, with a maximum lifting capacity set at around 15kg, although “it usually based on what the individual can manage” (such that the courier can break up the samples and divide them “within what they are comfortable to carry”).
• Usually transporting the samples in “over the shoulder” eskies.
• A majority of the couriers belong to the “older demographic” (explained as the 50 plus age group).
• There is an 80/20 split, female to male.
• Although the couriers are not required to pass a medical examination, if it is “documented” that a person as a reduced lung capacity, “that would go down to the individual manager to determine” and “obviously that’s a risk factor we have to address”.
• There is not usually a great deal of repetitive lifting and the distance is approximately 20m in bring the samples in from the courier carpark to the department.
• It is generally “a pretty fast pace, reasonable pace job”.
• Although the full-time shifts are generally eight hours shifts, there are shorter shifts as well.
• As for an eight hour shift, it is broken down into specific runs with the majority of the time being spent in the car on the run and with delivery of samples back to the laboratory through that period.

102. [102]
     Dr Edwards, for this occupation, though cross-examined closely, expressed a final view that, “on enough medication consistently”, there is a reasonable chance that the plaintiff could do it. Dr Heiner, as examined later, expressed a contrary view. Given that occupational and vocational evidence, subject to any conclusion to be derived from the expert thoracic opinions expressed that those identified jobs involving driving ought not to be undertaken on the basis of prospective loss of control of driving (on some other cogent ground), the evidence just canvassed establishes to the requisite degree of satisfaction that such full-time, part-time and permanent casual occupations are within the plaintiff’s capacity, since the basis of his skills and knowledge is the driving of these different kinds of vehicles.

103. [103]
     The next consideration, then, must be what the expert medical evidence reveals.

Medical opinions

104. [104]
     Understanding that the medical opinions, to the extent to which they were obtained after the assessment date, are relevant to the extent that they are pertinentto the determination of the plaintiff’s condition at the relevant assessment date, as at 6 January 2015 the FEV1 “post” readings had shown to that time that the lung condition had been unstable. This is starkly demonstrated by the figures contained in the joint letter of Drs Fong and Marshall relating to their thoracic clinical examination on 1 October 2014 and the letter of Dr Marshall relating to the thoracic clinical examination on 15 October 2014. That showed that:

• On 10 April 2013, it was at 2.62.
• On 16 July 2013, it was at 2.43.
• On 20 November 2013, it was at 2.91.
• On 15 October 2014, it was at “2.06”.

105. [105]
     These figures are to be contrasted with the “predicted” figure of 3.64. This is also in the context (noted in that former letter) that the plaintiff was “reasonably adherent”. It was in that former letter that reference was made to, “with optimal treatment” and “demonstrable stability”, those experts being “reasonably confident” that the plaintiff “could return to work in some capacity” though this would “be dependent on the natural history of his lung disease and require ongoing medical evaluation”.

106. [106]
     Other documents from the Prince Charles Hospital (contained in Ex 10) not only indicate that the “post” FEV1 as at 15 October 2014 was 2.06 – the lowest reading to that time – but also noted that, as at 20 November 2013, the plaintiff struggled to maintain his FVC “pre” test “due to coughing”.

107. [107]
     The latest of the letters from the Prince Charles Hospital, under the hand of Dr Marshall and referable to a clinical examination date of 31 May 2016, shows a FEV1 “post” reading of 2.76. It was also noted in that letter that the plaintiff had been “meticulous” in his “concordance” with the prescribed drug, Symbicort, at the higher dose which had been recommended at the earlier clinic visit of 14 April 2016. In that earlier letter it was noted that he had “a persistent cough”.

108. [108]
     What the very latest letter from the Prince Charles Hospital showed was that the plaintiff had made “excellent progress in the last month” and had “really made a great effort to use the Symbicort twice a day as prescribed and concentrating on his inhaler technique”. The opinion was then expressed that, consequently, “he has a good improvement in his symptoms and an excellent response in his spirometry”. Nevertheless the letter goes on to state that he is still “not” in the normal range and suggests that maybe the plaintiff would benefit from additional medication, although it further notes the plaintiff did not seem “too keen give the cost of this”. Neither Dr Fong nor Dr Marshall was called at trial, although all the documents in Ex 10 were admitted without objection.

109. [109]
     When Dr Sawhney was called as a witness at trial, he did not give evidence which was particularly useful in light of the conclusions of the many other experts who were called, apart from his evidence that the plaintiff used to report to him as his GP about “having coughing fits” and that his “asthma flares up”.

110. [110]
     The two most important (for present purposes) medical experts who were called were the thoracic physicians, Dr Heiner and Dr Edwards, by the plaintiff and TAL, respectively.

111. [111]
     Dr Heiner’s reports are contained in Ex 7. His first report of 24 May 2013 was one of the documents in Exhibit 3 (that is, those documents available to TAL as at the date of its decision). The important point for present purposes is his conclusion that the plaintiff’s asthma was “unstable”. In Dr Heiner’s latest report of 13 May 2016, after noting that he had seen the plaintiff on two occasions only (being on 24 May 2013 and 11 March 2016), his opinion was that the plaintiff “should be admitted to hospital and treated aggressively”. To this extent at least, he stated that he agreed with Dr Edwards, although he noted that, while ongoing treatment is important because it reduces inflammation and therefore the number of exacerbations and ongoing symptoms, it “usually does not improve a patient’s ability to work”. With respect to the effect of intensive treatment on working capacity in specific occupations, he opined that taxi driving, courier delivery, bus driving and truck driving were all not able to be performed, because those occupations do not entail a person “sitting as a robot would, stopping and starting the vehicle and driving”.

112. [112]
     When called as a witness at trial, he expressed the view that he thought it was not important that he should take steps to discover, or obtain, any of the test results from treatment the plaintiff had been on between his first examination in May 2013 and his last in March 2016, although he did, as he noted, a pulmonary flow test himself which revealed a “post” FEV1 of 2.3 and a small airway function of “28% of predicted”. When commenting again upon not seeking results of previous tests of that kind, he stated that he did not think “it really matters about what’s happened in the past”. With respect to the future, Dr Heiner stated that from his “vast” experience he “would think (that it was a) miracle of biblical proportions” for the plaintiff’s small airways to suddenly improve to enable him to overcome all the difficulties that he had mentioned and for him to return to competitive work. He expressed the view that even if the FEV1 did improve, it was still the small airways function that was important, adding that this was the reason why the plaintiff was “not going to be able to work completely again, because I don’t think that there is anything at present that is going to improve his small airways”.

113. [113]
     When in further cross-examination Dr Heiner was asked about reasons for patients’ non-compliance with medication, he noted that it was “very common” that, when people find themselves being well again, they just think they do not need the medication anymore, making the comment that only 13% of asthmatics in Australia are considered to be well controlled. His general view was that, although it was possible to improve the plaintiff’s FEV1 and FEC, his suggested “really aggressive treatment regime” was one which “certainly wouldn’t improve his small airways”, especially “when he has a residual volume of 174%”.

114. [114]
     When Dr Heiner was then asked about his “prediction” that the plaintiff could not preform the occupational tasks that involved driving, he stated that he thought he had made “a very accurate prediction” and “irrespective of what the decision is in this court case, I think I’ll be right”.

115. [115]
     In re-examination, Dr Heiner reiterated his opinion that the plaintiff “has got severe unstable fixed airway obstruction asthma”.

116. [116]
     The other expert thoracic physician, Dr Edwards, produced a number of reports (including a file note of a telephone conference) which are collected in Exhibit 13. In the file note of 7 June 2016, Dr Edwards noted that with “continued treatment” he would “expect (the plaintiff’s) symptoms”, including any cough, to “almost go away” and for the plaintiff “to return to work within his capacities”. But Dr Edwards also stated that the plaintiff’s capacity to work “should be assessed when the asthma is controlled” (emphasis added).

117. [117]
     In his evidence at trial, Dr Edwards, while stating that he did not have any figures on the small airways function that the Prince Charles Hospital had recorded recently, opined that the plaintiff’s “small airways obstruction may improve with treatment”. When cross-examined about the potential for that, upon it being suggested that even with the further treatment indicated there would be no improvement in the plaintiff’s small airways function, Dr Edwards responded that “we don’t know that, because we haven’t had confirmed treatment on a regular basis to document that”, later adding that there “will be improvement in the small airways with regular medication”. With respect to the recent doubling of the dosage by Dr Marshall at the Prince Charles Hospital, Dr Edwards stated that there has been a quite a bit of improvement because at the time that he recorded the plaintiff’s FEV1 it was 2.29 “post” and “now it’s 2.76”. That earlier reading was made on 21 April 2015.

118. [118]
     After stating that his treatment for the plaintiff would have been different, Dr Edwards opined that the way that he has been treated at the Prince Charles Hospital was “acceptable”. When it was put to him that only 30% of asthmatics in Australia are stable, his response was that the 80% who take regular treatment are stable because “asthma management has been revolutionised over the years with adequate inhaled steroid dose”. When the “residual volume” figure of 175% was put to him, he noted that on Dr Marshall’s latest letter, it was 122%, stating that “with enough treatment and longer treatment, that residual volume will reduce”.

119. [119]
     When Dr Edwards was then taken to the “coughing fits”, he opined that “if he was adequately treated… he won’t have the coughing fits and he’ll be able to attend to driving and doing other… points of activity”, although he further conceded that he could not guarantee that the plaintiff would not have another coughing fit in the future. With respect to the issue of fumes potentially aggravating the plaintiff’s airways obstruction (whether from diesel, petrol or smoke), Dr Edwards was of a view that with enough regular medication “there’s a good chance that these airways will be protected, even against those factors”. He, additionally, stated that changes in temperature or changes in humidity would have less effect with “enough treatment – enough medication”.

120. [120]
     When Dr Edwards (who did commercial licence testing) was then taken to the prospect of the issuing to the plaintiff of a commercial driver’s licence, he responded that “if he’s well treated I think he could have a commercial driver’s licence”, later adding that he still thought the plaintiff “hasn’t been treated intensely enough to settle the inflammation down and then (he needs to) maintain… enough treatment to keep it suppressed”. This appears to qualify his earlier affirmative comment to the question that, for the plaintiff to be “stable”, in terms of treatment, “all he has to do is keep using the current levels of medication”. With respect to a driver’s licence, Dr Edwards conceded that if the plaintiff was correct in his coughing to the extent that he was “fainting”, “then clearly he shouldn’t have a driver’s licence”, noting that when he saw the plaintiff last, over a year ago, he “wasn’t on enough treatment”. When asked about the present position concerning a commercial driver’s licence, Dr Edwards stated that he would be happy to give his approval “if” he was sure the plaintiff was taking his treatment regularly and “his symptoms were controlled”. When asked about when that would happen, Dr Edwards indicated that he would need to undertake the more aggressive treatment, “review the situation” and, then, “if” he had improved “I’d gradually reduce the steroids over the period of another month… and if it was under control then I’d be happy to give him a licence” adding that “if he wasn’t controlled then obviously he couldn’t have a licence” (emphases added). Dr Edwards conceded that his own suggested treatment was not going to be implemented by the treating specialists at the Prince Charles Hospital. When I asked for a clarification, Dr Edwards indicated that the first projected review that he would do would be after a month but, then, he would need a further review after another month before he would make a final decision.

121. [121]
     In the resolution of the different opinions expressed by Dr Heiner and Dr Edwards, I prefer the opinions expressed by Dr Edwards. Those opinions are not only more consistent with the improved performance noted in the records of the Prince Charles Hospital but they also demonstrated to me a better appreciation of what current treatments can achieve. There is also the fact that he was able to identify a demonstrable improvement in the small airways functioning.

122. [122]
     On the other hand, Dr Heiner was unnecessarily rigid in his views and, although commendably referring to his “vast” experience, he was at times given to expressing his opinions through his personal experiences which were proffered as relevant in evaluating differences between the patients that he examined and his own responses. Besides, though he eschewed inquiring about the plaintiff’s clinical course for the purpose of this evidence, he conceded that he had refused initially to offer an opinion in March 2014 because he was not aware of the plaintiff’s then “clinical course”.

123. [123]
     But even given that preference, it is clear from both Dr Edwards, in particular, and the reports of the Prince Charles Hospital, more generally, that the plaintiff’s lung condition is still not yet stable and that such instability means that even Dr Edwards is not, at present, in any way able to justify that the plaintiff ought to have a commercial driver’s licence, although he believed that is possible. The trouble with that possibility is that both he and Dr Heiner would prescribe more aggressive treatment, whereas the responsible treating doctors at the Prince Charles Hospital (who were not called to give evidence) have not indicated that they are considering any of the suggested changes, though there is a chance of other additional treatment. And, to the extent to which the latest letter of that Hospital contains any indication, it is that further time is needed in order to determine any progress beyond the improvement already achieved. Although this evidence of Dr Edwards was directed to a commercial licence, it must apply equally to an ordinary licence, since both depend on the ability to drive safely on public roads.

124. [124]
     The conclusion that I am driven to reach, therefore, is that, in a similar position to that which applied at the time of TAL’s decision made on 6 January 2015, without optimal treatment and demonstrable stability, it cannot be medically judged yet that the plaintiff could return to work in some capacity involving commercial driving. It must be remembered that this decision, although dealing with the factor of “unlikely ever”, is still dependent upon, at this stage, the court’s conclusion about the proper “state of affairs”, paying due recognition to where the onus lies. In terms of the analysis undertaken in TAL (on appeal, at [111]), without such a necessary qualification as a properly held commercial or ordinary driver’s licence and without a complementary opinion about the stability of the asthmatic condition (even though that may, in hope at least, yet be achieved, although that is uncertain because of the canvassed qualifications to Dr Edward’s prognosis), it is impossible to make a decision that there is no “real chance” that the plaintiff “will return to relevant work, even if it is less than 50%”. Likewise, it is impossible to make a decision that there is a real chance – though that just reveals the uncertainty rather than reflecting the plaintiff’s onus. Until the evidence rises to be of the requisite character, it is impossible, even for this Court (with all the evidence led) to reach a conclusion about the true “state of affairs”.

Outcome

125. [125]
     In summary:

• TAL’s determination of 6 January 2015 is invalid.

• Subject to the question of uncertainty about the plaintiff’s capacity to be licenced to drive, the plaintiff is able to engage in:

• oseveral full-time occupations (including medical courier, parcel courier, taxi driver);

• oseveral part-time occupations (including medical courier, taxi driver, urban bus driver); and

• oseveral regular or permanent casual occupations (including medical courier, pizza delivery driver, urban bus driver, taxi driver).

• There is such a degree of uncertainty on the present medical evidence that I have preferred (being that of Dr Edwards, thoracic physician) about the plaintiff’s capacity to qualify for either, or both, a commercial driver’s licence and an ordinary driver’s licence which is directly relevant to the determination of the true “state of affairs” regarding the engagement of the TPD definition in this Policy of Insurance, that the decision must be deferred until a further report is, or further reports are, obtained which resolves this uncertainty.

• Since there is nothing more this Court can do, the matter of that determination is remitted to TAL to be decided according to law.

• Because of the imminent Court vacation, I intend to permit a structured approach to the filing of submissions on costs.