QBE INSURANCE LTD v JANDE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and SHELLER JJA 12 July 1994, 6 September 1994 [1994] NSWCA 366 INSURANCE — accident and sickness policy — temporary total disablement — requirement that insured be prevented from carrying out all normal duties — proof that insured performed minor non-heavy duties in shop — held: not total disablement but partial disablement- appeal allowed. INSURANCE — policy of personal accident and sickness insurance — construction of — definition of "temporary total disablement" — alternative entitlements for "temporary partial disablement" — requirement for total disablement of prevention from carrying out "all the normal duties" of the occupation — insured engages in instruction of purchasers of his business — performs minor non-heavy duties in course of instruction — insurer denies benefits for total disablement — trial judge (Patten A-DCJ) awards benefits for temporary total disablement — on appeal by insurer to the Court of Appeal- held: The policy of insurance must be construed according to its language and purpose; (2) The construction of the provision in relation to total disablement obliged meaning to be given also to the definition of "partial disablement". Hooper v The Accidental Death Insurance Co (1860) 5 H and N 546; 157 ER 1297 distinguished; (3) Upon that basis and in the facts found, the insured was not suffering "temporary total disablement" but temporary partial disablement; (4) Appeal allowed. Insurance Contracts Act 1984. Insurance Contracts Regulation, Reg17, and Reg18. ORDERS 1) Appeal allowed; 2) Judgment and order, other than the order dismissing the cross claim and the order for costs, of Associate Judge Patten of 26 September 1991 set aside; 3) In lieu thereof, verdict for the plaintiff in the amount of $9,590 to take effect from 26 September 1991; and 4) The respondent to pay the costs of the appeal and, if qualified, to have a certificate under the Suitors' Fund Act 1951. Kirby P This appeal from a judgment of the District Court (Patten A-DCJ) concerns the meaning of definitions of "disablement" in the appellant insurer's accident and sickness insurance policy, as issued to the respondent. A SHOPKEEPER DISABLED: CLAIMS ON HIS INSURANCE The facts of the case, the provisions of the policy and the conclusions of the primary judge are set out in the reasons of Sheller JA. A stalwart defence of his Honour's judgment was advanced before this Court. As will appear, the critical question is whether the word "all" ("... prevents the Insured Person from carrying out all the normal duties of his or her usual occupation..."), repeated twice in CL3.7 of the policy, contradicts, in the facts, the conclusion which Patten A-DCJ reached and requires the contrary conclusion. Whilst the respondent was certainly severely injured in an event attracting the benefits of the policy and whilst a witness, whom Patten A-DCJ accepted, described his general condition as "helpless", the fact remains that he was 2 UNREPORTED JUDGMENTS indisputably able to perform certain of the normal duties of his or her usual occupation. He did so when instructing the purchasers of his business which, he claimed, he was forced to sell by reason of his disabilities. There seems to be no doubt that the respondent, during the period of instruction, served customers and carried small items. Certainly, he remained within the shop. He was not able to lift boxes or perform activities such as potato peeling. But neither the medical evidence nor the factual evidence, accepted by the primary judge, demonstrates that the respondent was immobilized for the entire period of the claim and, in this sense, prevented "from carrying out all the normal duties of his... occupation". Therefore, if that is what the policy meant, the provision for "temporary total disablement" did not respond to the facts proved. THE ARGUMENTS OF THE INSURED However, the arguments for the respondent, who succeeded at first instance, went thus: 1. Such a narrow construction of the policy would limit "total disablement" virtually to the very rarest of cases, such as quadriplegia, paraplegia or other similar profound disablement. This would confine the policy in a way of little help to the kinds of persons (including the respondent) to whom the policy was sold. The policy should not be so confined. It should be given, to the extent that its language permitted, a broader construction apt for the realities of the multitude of occupational circumstances to which it had to apply; 2. The word "all" in the definition of "temporary total disablement" was to be distinguished from the word "any". In effect, the insurer was seeking to equate these two words. If the insured was prevented from carrying out all of the normal duties of his or her occupation (although able to perform some of those duties), the policy responded to the facts in a claim for benefits for "temporary total disablement". In the present case, the insured was prevented from carrying out "all" of the normal duties because it was beyond contest that he could not carry out certain duties, such as heavy lifting and peeling. If the insurer had wished to exclude cover in circumstances such as the present and to confine it to the grossest cases of disablement only, it could, and should, have used the word "any". Then, "total disablement" would have been confined to the narrow class of case, where the insured is prevented from carrying out any of the normal duties of his or her usual occupation; 3. As the words in question appeared in a printed form, and a standard insurance contract, the language was (subject to any applicable legislation) entirely a matter for the insurer. Accordingly, the suggested ambiguity in the expression should be construed in favour of the insured in accordance with the contra proferentem doctrine which is still part of the Australian law for the construction of ambiguous insurance contracts. Cf Cameron v Commercial Union General Insurance Co Ltd (1983) 2 ANZ Ins Cas 60-542. The absurdity of the insurer's construction was illustrated by the fact that, on the insurer's approach to the word "all", if the insured had merely sat on a chair at the doorway of his shop, greeting customers as they entered, it could not have been said that he was prevented from "carrying out all the normal duties of his... occupation". If he had simply signalled the trainee purchasers of his business by eye movement or an occasional gasped phrase as to how they should serve a customer or perform a particular duty, he would not have been "prevented... from carrying out all the normal duties of his... occupation". As this could not be the construction of the policy, in the practical commercial situation for which it was URJ QBE INSURANCE LTD v JANDE (Kirby P) 3 intended to apply, some other construction must be adopted, such as that favoured by the primary judge. So went the case for the insured. TOTAL DISABLEMENT REQUIRES PREVENTION FROM CARRYING OUT ALL DUTIES These are good arguments. They must be given weight. But in the end, I have concluded, with the other members of this Court, that the better view of the meaning of the policy is that urged by the insurer. 1. Whilst, it is true, that this would confine coverage under the policy provisions in respect of "temporary total disablement" to a very limited class of case essentially people bedridden, in hospital or at home or confined to a chair, unable to fulfil the usual tasks of the occupation - the insurer's answer is that this is what the policy stated. The insurer also asserted that the premium was small. If an insured wished a more substantial coverage for partial disablement, he could look for another policy. The fact that the premium was small cannot, however, govern its meaning. Furthermore, the Court is unaware of the quantum of the premium and unable to judge whether, for a person such as the respondent, it was large or small. Cf Jason v Batten (1930) Ltd; Jason v British Traders' Insurance Co Ltd [1969] 1 L1 L Rep 281 (QBD), 290; 2. The word "all" in the definition of "total disablement" has to be given its ordinary meaning. That is, here, the whole of, or the whole number of, the normal duties of the occupation. These included duties of the kind which the insured had demonstrated he was able to carry out; and 3. The difficulty with the distributive interpretation urged for the respondent is that such an approach would leave virtually no work to be done by the alternative provision of benefits under the policy for "partial disablement'. By the juxtaposition of the two expressions (with their differential benefits), it must be inferred that the policy intended a real distinction to exist between "total" and "partial" disablement. The key to defining the distinction is found, and found only, in the use of the word "all" in the definition of "total disablement" and the provision, in the case of multiple occupations, for a disablement which prevents the insured from carrying on normal duties or "any" of them. CONCLUSION: A CASE OF "PARTIAL" NOT "TOTAL" DISABLEMENT If the facts found by the primary judge are accepted, there would seem to be no real dispute that the respondent, although prevented from carrying out many, perhaps most, of his normal duties, was not prevented from carrying out all of them. He was certainly temporarily disabled. His disability was established at a very high level. But it was not "total disablement", as that phrase would ordinarily be construed. More to the point, it was not "total disablement" in the special sense as defined by CL3.7 of the insurer's policy. It is unnecessary in this case to consider in this case whether a purely sedentary role as director of the shop, would have been inconsistent with the definition of "total disablement". Certainly, the "normal duties" would have to be approached in a practical and sensible fashion. Adopting that approach in the present case, I have concluded that the duties which the respondent actually carried out, contradict the finding that he was prevented from carrying out all the normal duties of his usual occupation. ORDERS I agree with the orders proposed by Sheller JA which permit the respondent to recover benefits on the basis of "total disablement" for part of the period claimed as seems appropriate in the evidence. The benefits for the balance of the period claimed must be calculated on the basis of partial disablement. 4 UNREPORTED JUDGMENTS Meagher JA I agree with Sheller JA. Sheller Jaintroduction The respondent, Albert Jande, was covered by a policy of personal accident and sickness insurance issued by the appellant, QBE Insurance Limited. The policy provided that, in consideration of the premium, the appellant would pay compensation to the respondent in accordance with the policy if any of the events referred to in the schedule should happen to the respondent. Included in the events in the schedule were permanent total disablement and temporary total disablement. For the latter the stipulated compensation was $400 per week (payable from the first day of treatment by a duly qualified medical practitioner for an aggregate period of 104 weeks) and the compensation stipulated for temporary partial disablement was $100 Per week (payable from the same commencing day and for the same period). In the printed terms of the policy "Temporary Total Disablement" was defined in CL3.7 as meaning: " Total Disablement which prevents the Insured Person from carrying out all the normal duties of his or her usual occupation, profession or business or where the Insured Person engages in more than one occupation profession or business all of them." "Temporary Partial Disablement" was defined in CL3.10 as meaning: " partial disablement which prevents the Insured Person from carrying out the normal duties of his or her usual occupation, profession or business or where the Insured Person engages in more than one occupation profession or business any of them." On 6 February 1986, during the period insured, the respondent fell from the roof of premises at 26 Parramatta Road, Lidcombe, where he and his wife carried on a take-away food business, and was injured. It is unnecessary to recount the details of the accident. The respondent was driven by a friend to Auburn Hospital where he remained for some hours and received treatment from a medical practitioner. He claimed to be totally disabled as a result of the accident and sought compensation under the policy. On the basis of temporary total disablement the appellant paid him an amount of $400 per week for the period from 7 February 1986 until 28 April 1986. Thereafter the appellant refused to make any further payment and the respondent sued it in the District Court. In his statement of claim of 6 August 1986 the respondent alleged that he had suffered injury to the head, neck, left arm and left hand resulting in his being totally disabled from attending to his usual business or occupation, as the proprietor of a take-away food bar, from 6 February 1986 "to date and continuing". In its grounds of defence the appellant denied this and by a cross claim sought to recover the amounts paid to the respondent under the policy together with interest. HEARING IN THE DISTRICT COURT The proceedings were heard by his Honour Associate Judge Patten who gave judgment on 26 September 1991. His Honour found that prior to the accident the respondent was actively engaged in running the take-away food business. Apart from cooking hot food, the respondent, in the course of carrying on the business, had to carry quantities of foodstuffs and to do such things as peel potatoes for the making of potato chips. The respondent gave evidence that after the accident, because of injury to his left hand and a head injury which caused him headaches and pain in his neck, he did not continue his normal duties in the shop. Instead he spent his days lying on a couch in the lounge room behind the shop while his wife and members of the staff carried on the business. This continued until about 25 as URJ QBE INSURANCE LTD v JANDE (Sheller Jaintroduction) 5 22 April 1986, when the respondent agreed to sell the business to Mr John Ashkar and his brother, Mr Leslie Ashkar. The respondent said he sold the business, something he would otherwise not have contemplated, because he could not actively participate in it. Under the contract of sale the period of vendor's tuition prior to completion was fourteen working days and the period of vendor's assistance after completion seven working days. Because the Messrs Ashkar had no prior experience in a business of this kind the respondent himself provided the vendor's tuition assisting the purchasers for about fourteen working days between 22 April 1986 and completion. After completion the respondent's wife provided assistance. While providing tuition to the purchasers the respondent was not able, in the business, to do all the things that he had been accustomed to do before 6 February 1986. In particular, he said he could not lift boxes and goods which required the use of two hands and he could not do such things as peel potatoes. He said that the carrying out of his normal duties was restricted not only by the injury to his hand but also by the fact that he was suffering from a feeling of dizziness, headaches and neck pain. He was, however, able to serve customers and carry small items such as soft drink cans and bags of chips. His Honour said that this evidence of the respondent as to his condition in the period prior to the completion of the contract of sale was corroborated by the evidence of the purchasers, particularly Mr Leslie Ashkar, who emphasised that during the period of tuition the respondent exercised a supervisory role only and left to others most of the physical tasks that needed to be done. Mr Ashkar described the respondent "apparently helpless". After completion of the sale the respondent went on a holiday for two or three months to Lebanon. He said that when he returned he still felt unwell and not in a position to return to work until the end of 1987, when he looked for and subsequently purchased another business. His Honour said: "In the meantime the plaintiff had consulted a number of medical practitioners including Dr Medhat Guirgis who took the view that as from the 25 May 1987 the plaintiff was fit for light work. Dr Guirgis' report of 27 February 1989 concluded that the plaintiff was then still unfit to be involved in duties that required applying stresses to his cervical spine." Only two medical reports from Dr Guirgis, one of the 15 December 1987 and the other of 27 February 1989, were tendered. The doctor did not give oral evidence. In the first of these reports Dr Guirgis said that the respondent remained unfit to be involved in any duties that required applying stresses to his cervical spine and in the second that he remained fit for light duties not stressing the cervical spine and left hand. Curiously the report of 15 December 1987 states: "T saw the above patient first on 28th October, 1986, 27th March, 1987, 26th May, 1987, 21 st August, 1987, 8th December, 1987 and LAST ON 27th FEBRUARY 1989." [my emphasis] The second report states: "Further to my previous Medical Report dated 15th December, 1987. I saw the above patient again on 27th February, 1989." In neither report nor in any other of the medical reports is comment made about the respondent's fitness as from 25 May 1987. His Honour pointed out that in the particulars furnished by the respondent's solicitors on 16 May 1989 the respondent limited his claim for total disablement to the period from 6 February 1986 to 25 May 1987. He claimed for partial disablement from 26 May 1987 until the expiry of the term of the policy. 6 UNREPORTED JUDGMENTS Associate Judge Patten said that the policy of insurance, being the respondent's policy, must be construed, in the event of any ambiguity, against it, but that "... although not particularly happily drafted it seems to me that CL3.7 when read with the definition of 'temporary total (sic) [partial] disablement' means that if the insured person is prevented from carrying out any of the normal duties of his usual occupation he becomes 'temporarily totally disabled' within the definition and entitled to benefits." His Honour continued: "Notwithstanding the evidence of Mr Miller as to the activities that the plaintiff was performing on 6 May 1986 when he interviewed him and notwithstanding the admission of the plaintiff that, at least during the period when he was assisting the Messrs Ashkar, he was capable of doing some work in the business I am of the opinion that as a result of the accident on 6 February 1986 the plaintiff was, in at least the two respects, which I have mentioned, prevented from carrying out all the normal duties of his usual occupation. He thereupon became entitled to the benefits provided for 'temporary total disablement' under the policy. On one view of the policy once the temporary total disablement provision is triggered the plaintiff becomes entitled to the full benefit, that is $400 per week for 104 weeks. However I accept the submission of Mr Gregg, counsel for the defendant, that that is not the way the policy should be interpreted and that it should be interpreted upon the basis that the benefit is only payable whilst the 'temporary total disablement' continues." The two respects referred to were, it seems, lifting boxes and goods and peeling potatoes. His Honour held that the respondent suffered temporary total disablement until 25 May 1987 and accordingly, applying the rate of $400 per week, and taking account of the amount of $4,628.56 already paid he entered a verdict for the amount of $22,400 and allowed interest totalling $15,960 making a total of $38,360. He dismissed the cross claim. The appellant appeals from this decision. It claims that his Honour misinterpreted the definition of "Temporary Total Disablement". THE MEANING OF THE POLICY On appeal the contest between the parties centred on the definition of Temporary Total Disablement and the words "prevents the Insured Person from carrying out all the normal duties of his or her usual occupation". His Honour construed this in a way which meant that if it is assumed the respondent had five such duties and was prevented by total disablement from carrying out two of them (like lifting goods and peeling potatoes), even though he remained able to carry out the other three, his temporary disablement was total. Whatever the attractions of this construction as a matter of language it runs into the difficulty that it leaves no field of operation, consistent with it, to that part of the definition concerned with the position where the insured person engages in more than one occupation or to the expression "temporary partial disablement". The appellant argues, by reference to the same example, that the event of temporary total disablement has not occurred unless the total disablement prevents the respondent from carrying out all five of his normal duties. Counsel were unable to inform us of the provenance of the form of words used. Clearly the insurer wished to provide cover for both total disablement and partial disablement resulting from injury affecting the insured's ability to follow his or her usual occupation but to compensate at different weekly rates. To distinguish total from partial disability the adverb "wholly" is sometimes used to modify URJ QBE INSURANCE LTD v JANDE (Sheller Jaintroduction) 7 verbs such as "disabled" or "prevented" and adjectives such as "any" or "all" are sometimes used to qualify the noun describing the insured's work activities. Traditionally insurance against accident covered "any bodily injury to the insured of so serious a nature as wholly to disable him from following his usual business, occupation or pursuits"; see for example Hooper v Accidental Death Insurance Co (1860) 5 H and N 546; 157 ER 1297. In that case the insured suffered a serious sprain of the ankle, in consequence of which he was unable to leave his room for some weeks, and was confined to the house for some time longer. It was clear he was disabled from following his usual business, occupation or pursuits. Was he "wholly" disabled? At 556-7 and 1302, Pollock CB in the Court of Exchequer said: ".... the plaintiff might and could have done something which he was in the habit of doing before, but he was wholly incapable of doing that which he usually did before. If a man is so incapacitated from following his usual business, occupation or pursuits as to be unable to do so, he is 'wholly disabled' from following them. His 'usual business and occupation' embrace the whole scope and compass of his mode of getting his livelihood...... It appears to us they intended that when the insured was wholly incapable of performing a considerable part of his usual business, he should receive a compensation in respect of that disablement........ I think, however, that putting a reasonable construction on the language used, the parties must have meant that if the insured was so disabled as to be incapable of following his usual business, occupation or pursuits, he would be 'wholly disabled from following his usual business, occupation or pursuits,' and entitled to the stipulated compensation. Our judgment must therefore be for the plaintiff." During the course of argument Wilde B said: "Surely 'wholly disabled' is equivalent to quite disabled, and a man is so unless he can do what he is called upon to do in the ordinary course of his business. It is not the same thing as 'unable to do any part of his business'." 554 and 1301. Like the judgment of Pollock CB, this suggests no clear distinction between total and partial disablement from carrying on an occupation. The judgment of the Court of Exchequer was affirmed by the Court of Exchequer Chamber at 559 and 1302-3. Whiteman J said: "We are all of opinion that the plaintiff, having received such an injury that he was obliged to lie on a sofa in his room, and being unable to put his foot to the ground or come down stairs, had received an injury which 'wholly disabled him from following his usual business or employment.' Great stress has been laid on the word 'wholly' as applicable to the word 'disabled.' In order to ascertain its meaning we must look at the other words in the sentence. From what is he to be wholly disabled? From following his usual occupation. When, as shewn in this case, he was confined to his room and unable to see his clients, surely it is a reasonable construction to say that he was 'wholly disabled' from following his usual occupation. Therefore the judgment of the Court below is right and must be affirmed." Other cases are discussed and referred to in MacGillivray and Parkington on Insurance Law, 8th ed, paral806 and following and Sutton, Insurance Law in Australia, 2nd ed, para9.51 and following. Compare also the form of policy complained of in Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR | at 8. The Australian Law Reform Commission Report No 20 on Insurance Contracts (1982) Chapter 3 at 30 and following referred to misunderstandings about insurance caused by the variety of policy terms and concluded at 44 that 8 UNREPORTED JUDGMENTS in personal accident insurance, as well as other classes of insurance, there was a clear need for the imposition of standard cover. In Appendix B to the Report, draft Insurance Contracts (Standard Cover) Regulations were set out. Draft Reg16 (1), in prescribing events for the payment of indemnity under sickness and accident insurance, used the words "that results in his death or in his total or partial disablement from carrying out his usual occupation" to qualify sickness and accidental bodily injury. The Insurance Contracts Act 1984 came into operation on | January 1986. Pt5 Division | applies to prescribed contracts being contracts of insurance included in a class of contracts of insurance so declared by the regulations. One such class consists of contracts that provide insurance cover (whether the cover is limited or restricted in any way) in respect of the insured person contracting a sickness or disease or a specified sickness or disease or sustaining an injury or a specified injury where the insured or one of the insureds is a natural person. There are certain exceptions; Reg17. The prescribed events for the payment of indemnity under the policy include the following (Reg18 (b) and Reg18(d)). "(b) where the contract (not being a contract referred to in para(a)) provides insurance cover (whether the cover is limited or restricted in any way) in respect of the insured person contracting a sickness or disease - the total disablement of the insured person from carrying out all the normal duties of his or her usual occupation, being disablement that results from the person contracting a sickness or disease, (d) the partial disablement of the insured person from carrying out the normal duties of his or her usual occupation as a result of the insured person sustaining an accidental injury, being disablement that occurs within 12 months after the insured person sustains the injury." No distinction is drawn between permanent and temporary disablement. But the distinction is made between total disablement from carrying out all THE NORMAL DUTIES of his or her usual occupation and partial disablement from carrying out THE NORMAL DUTIES of his or her usual occupation [my emphasis]. These composite phrases must, I think, be construed as meaning on the one hand that the insured person is unable to do any part of his or her business and on the other is unable to do some part of his or her business. Professor Sutton at para9.51 notes that there is no reference in Reg18 to total and permanent disablement and that total disablement is described in terms of preventing the insured person from carrying out all the normal duties of his usual occupation, while the description of partial disablement omits the "all" in its reference to the normal duties of the insured's usual occupation. "This must be contrasted with the usual practice in relation to personal accident or sickness policies where it is customary to refer to total and permanent disablement and to describe that phrase in terms of preventing the insured person from engaging in or attending to any profession, business or occupation whatsoever." According to the transcript in the District Court the policy schedule which represented the terms of the cover as at 6 February 1986 was tendered during the course of address. The exhibit reveals neither the date of the policy nor the period of insurance. The printed terms of the policy have a notation at the foot "PO06 (11-85)". It may be that the form was adopted in November 1985. The policy distinguishes between permanent and temporary total disablement and provides for temporary partial disablement. The definitions of temporary total disablement and temporary partial disablement use the same words as are found in Reg18(b) and Reg18(d) except that instead of speaking of disablement of the insured URJ QBE INSURANCE LTD v JANDE (Sheller Jaintroduction) 9 person from carrying out "all the normal duties" or "the normal duties" of his or her usual occupation, the policy speaks of disablement "which prevents the insured person" from carrying out "all the normal duties" or "the normal duties" of his or her usual occupation. Further after the words occupation" are added "profession business or where the insured person engages in more than one occupation profession or business" in the case of temporary total disablement "all of them" and in the case of temporary partial disablement "any of them". These additional words, to my mind, emphasise that, in the case of total disablement, the definition refers to an inability to do any of the normal duties of the insured's occupations and, in the case of partial disability, an inability to do some of such normal duties of one or more of the insured person's occupations. CONCLUSION In my opinion and with the greatest respect Associate Judge Patten misconstrued the definition of "Temporary Total Disablement" in the policy. The error infected the verdict. It remains to consider what should be done. This is complicated by his Honour's conclusion that the respondent "was totally disabled until 25 May 1987 that being the date from which Dr Guirgis said that the plaintiff was fit for light work". For the period from 7 February 1986 until 28 April 1986 the respondent paid the appellant compensation on the basis that he was temporarily totally disabled. The respondent's evidence was that until the sale of the business he did not continue his normal duties in the shop but spent his days lying on a couch behind the shop while the business was carried on by his wife and members of the staff. In cross examination the respondent was asked whether, apart from a short period of time immediately following the accident, he was thereafter able to perform light work in the shop. The respondent said: "Well, I try, yes." Reference was made to a report of Dr Basser dated 28 November 1986 in which the doctor records: "The accident occurred on 6 February 1986. He said that he had continued to supervise in the shop. He said that he was doing only light work. He was not doing his usual work." His Honour made no reference to this evidence in his judgment. He did refer to and appear to accept the respondent's evidence that because of his injuries he did not continue his normal duties in the shop until about 22 April 1986 when he resumed some of them. For this reason I have come to the conclusion that the payments made by the appellant were appropriate for the period they covered. I am also satisfied that for the period commencing on 29 April 1986 up to and including 25 May 1987 the respondent was partially disabled. This is consistent with his Honour's findings of fact which he erroneously treated as amounting to total disablement. His Honour rejected the claim that after 25 May 1987 there was temporary partial disablement. He did this because he was of opinion that upon the proper construction of the policy once a claim was made out for temporary total disablement a successive claim for temporary partial disablement was not available. However he went on to say that on the evidence he would not be willing to hold as a matter of fact that there was a temporary partial disablement past 25 May 1987. While I have some doubt about the significance of this date it is clear that his Honour understood it as the date particularised by the respondent after which he claimed for partial disablement. In my opinion no reason has been shown for disturbing his Honour's finding in respect of the claim beyond that date. For the purpose of determining what the appropriate verdict should be I ignore altogether the payment of $4,628.56. On figures presented in 10 UNREPORTED JUDGMENTS the appellant's submissions on a claim for temporary partial disablement from 29 April 1986 to 25 May 1987 at $100 per week the amount payable was $5,600. Interest on this from | January 1987 to 26 September 1991 at 15 per cent is $3,990. In my opinion the appeal should be allowed and a verdict of $9,590 substituted. COSTS This brings me to the question of costs. Since the respondent had retained a verdict in the District Court the costs order made by his Honour should not be disturbed. In this Court the appellant has succeeded on its appeal. Accordingly it is entitled to the costs of the appeal. The respondent should have a certificate under the Suitors' Fund Act 1951 so as to be able to take advantage of s6(2) (b) of that Act. ORDERS I propose the following orders: 1. Appeal allowed; 2. Judgment and order, other than the order dismissing the cross claim and the order for costs, of Associate Judge Patten of 26 September 1991 set aside; in lieu thereof verdict for the plaintiff in the amount of $9,590 to take effect from 26 September 1991. 3. The respondent to pay the costs of the appeal and, if qualified, to have a certificate under the Suitors' Fund Act 1951. 1) Appeal allowed; 2) Judgment and order, other than the order dismissing the cross claim and the order for costs, of Associate Judge Patten of 26 September 1991 set aside; 3) In lieu thereof, verdict for the plaintiff in the amount of $9,590 to take effect from 26 September 1991; and 4) The respondent to pay the costs of the appeal and, if qualified, to have a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: JE Maconachie QC/GM Gregg Instructed by: Abbott Tout Russell Kennedy Counsel for the Respondent: KP Rewell Instructed by: Keddie and Associates