Supreme Court New South Wales Medium Neutral Citation: Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2014] NSWSC 632 Hearing dates: 5 - 6 May 2014 Decision date: 27 May 2014 Jurisdiction: Equity Division Before: Hallen J Decision: See Paragraphs 157 - 160 of these reasons for judgment. Stand over the proceedings for the making of final orders and orders as to costs. Catchwords: Superannuation - Insurance - Claim for benefits - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including Plaintiff - Whether Plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Duty on an insurer in determining a claim for a benefit - Duty on a trustee of a superannuation fund in determining a claim for a benefit - Whether Plaintiff unlikely ever to engage in or work for reward in any occupation or work which he is reasonably capable of performing by reason of education, training or experience - Review of decision made by each of Trustee and Insurer necessary - Same decision reached Legislation Cited: Insurance Contracts Regulations 1985 (Cth) Practice Note SC Gen 18 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Chammas v Harwood Nominees Pty Ltd (1993) ANZ Ins Cas 61-175 Chapman v United Super Pty Ltd [2013] NSWSC 592 Dargan v United Super Pty Ltd [2011] NSWSC 1316 Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCA 376; (2002) 118 FCR 170 Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 Folan v United Super Pty Ltd [2014] NSWSC 343 Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246 Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123 Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325 Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 Kenan Berk v Westpac Securities Administration Ltd [2010] NSWSC 28 Lazarevic v United Super Pty Ltd [2014] NSWSC 96 McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Munios v Johnson and Johnson Retirement Benefits Ltd (Supreme Court (NSW), McLelland J, 5 December 1996, unrep) Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55 Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906; (2008) 15 ANZ Ins Cas 90-134 Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 Vidovic v Email Superannuation Pty Ltd (Supreme Court (NSW), Bryson J, 3 March 1995, unrep) Weber v Tiss Pty Ltd [2005] NSWSC 67 Category: Principal judgment Parties: Robert Birdsall (Plaintiff) Motor Trades Association of Australia Superannuation Fund Pty Ltd (first Defendant) MetLife Insurance Ltd (second Defendant) Representation: Counsel: Mr J Anderson (Plaintiff) Mr S J Walsh (Defendants) Solicitors: Stacks/Goudkamp (Plaintiff) TurksLegal (Defendants) File Number(s): 2013/180765 Judgment Introduction 1HIS HONOUR: The Plaintiff, Robert Birdsall, was working as a qualified motor vehicle mechanic on 7 May 2009, when he was injured, in the course of his employment with OTO Gas Mechanical ("the Employer"). He had commenced working with the Employer in October 2007. 2The first Defendant, the Motor Trades Association of Australia Superannuation Fund Pty Ltd ("the Trustee"), is the Trustee of the MTAA Superannuation Fund ("the Fund"). The Fund was first established in May 1989. The Plaintiff became a member of the Fund on 8 January 2003 in relation to Death Cover. On 1 July 2008, his insurance cover was upgraded to include 3 units of death and total and permanent disability. 3By Consolidated Deed of Trust ("the Trust Deed"), the Trustee established, and administered, the Fund for the purpose of providing superannuation benefits for persons working in the motor trades industry and their beneficiaries in the circumstances set out in the Fund's Trust Deed, as amended from time to time. 4Under the Trust Deed, the Trustee agreed, relevantly, to pay a member a benefit if he, or she, became totally and permanently disabled whilst in employment. The Trustee had power to take out, and maintain, insurance in respect of its liability to make payments in accordance with the Trust Deed. In exercise of that power, in the instant case, the Trustee had insured its liability to pay Total and Permanent Disablement ("TPD") benefits with the second Defendant, MetLife Insurance Ltd ("the Insurer"), under a Group Life Insurance Policy ("the Policy") dated 1 July 2008. (It was not in issue that the Plaintiff had standing to sue the Insurer even though it was a Group Life Policy.) 5The Plaintiff, initially, in February 2009, suffered an injury to his right wrist when, with others, he was attempting to lift a heavy gearbox, in connection with his employment. He suffered a further injury (or an exacerbation of the initial injury) a few months later, in May. He notified the Employer of the latter incident, and, shortly thereafter, lodged a worker's compensation claim. He commenced receiving weekly worker's compensation payments, which continued until August 2012. 6On or about 14 April 2011, the Plaintiff made a claim for TPD benefits pursuant to the Trust Deed. At different times in 2012, to which I shall refer, the Insurer and the Trustee informed the Plaintiff that his claim was declined. (There was only one notification by each to the Plaintiff.) 7The parties, during the proceedings, focussed more on the determination by the Insurer than the Trustee, although, of course, it may be necessary, in these reasons, to consider the determination of each. The Proceedings 8The Plaintiff, in these proceedings, seeks, amongst other things, a declaration that he is totally and permanently disabled within the meaning of the relevant definition of that term in the Policy. He also seeks declaratory relief that he is entitled to TPD benefits, in the amount of $93,000, interest calculated since 4 October 2010 (the date which is agreed to be the Plaintiff's last day of work) until the date of payment, together with an order for the payment, and costs. In the alternative, he claims damages for breach of contract, interest and costs. 9There is no dispute that, if he did suffer TPD, the Plaintiff is entitled to $93,000, plus interest (although the date from which interest is to be calculated is in issue). There was a dispute about the amount of interest but, with encouragement, the parties were able to agree that the interest should be $15,000 (calculated until 6 May 2014). They should be able to agree on the quantum of interest thereafter, if necessary. 10The primary question for determination is whether the decision by the Insurer was invalid, in that it was unreasonable. In the event that the court concludes that the decision made by the Insurer was invalid, it should substitute its own decision for that of the Insurer: McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197, at [62], and, if appropriate, should order it to pay the amount of the claim, plus interest, to the Trustee, which would then pay it to the Plaintiff. (In the alternative, the Trustee could direct the Insurer to pay the amount to be paid directly to the Plaintiff.) 11Thus, a key issue will be whether, as a result of the injuries sustained by him in February, and then in May 2009, the Plaintiff suffered TPD within the meaning of the Policy as at 4 April 2011 (6 months from the day on which he last worked). 12The court was provided with a Statement of Agreed Facts that was tendered as Ex. A; an Agreed Medical and Vocational Summary, which was tendered as Ex. B; and the Court Book, which was tendered as Ex. C, and which contained the documents on which one party, or the other, intended to rely. I shall rely upon, and refer to, these documents where necessary. 13Only three witnesses were cross-examined, namely the Plaintiff, Dr Keller and Ms Lee (to the latter two of whom I shall refer later, in more detail, in these reasons). Counsel took me to relevant parts of documents in Ex. C and then each made oral submissions to supplement the written Outline of Submissions, a copy of which will be retained with the court file. 14The parties requested that, whatever the result of the case, I should not deal with the costs of the proceedings until after the reasons for judgment as there may be matters which will be relevant to the determination of how the costs of the proceedings should be borne. I shall abide this request and adjourn the matter to a convenient date to determine the issue of costs. However, I would encourage the parties to agree on the costs of the proceedings in order to avoid further costs being incurred. Salient Facts 15The following facts, too, were not the subject of real dispute between the parties. 16The Plaintiff was born in January 1986. 17In 2002, the Plaintiff left high school having obtained his School Certificate. He then attended Georges River College, where he undertook an elective speciality automotive course, completing Year 11. (He did not obtain his Higher School Certificate.) During this period, he did obtain some work experience. 18He then left the College and commenced a mechanic's course, as an apprentice, with Bonneville Automotive Pty Ltd, motor engineers and repairers, where he worked, without relevant incident, until October 2007. His apprenticeship took 4 years to complete. 19As part of his employment with Bonneville Automotive, the Plaintiff was required to do mechanical work. He had authority to order parts, although this entailed simply identifying the part required and contacting the supplier, who identified it by part number. He did not use a computer to identify the part number, or to otherwise identify the part required. On occasions, if the person described as his "boss" was not there, he would call up a customer and say, "Your car is finished. Come and pick it up". Otherwise, he was not required to have contact with a customer. 20As stated, the Plaintiff commenced work with the Employer in October 2007, having completed his apprenticeship and obtained his trade qualification. His work, then, involved some heavy physical activity and some heavy lifting, but mainly working and repairing motor vehicles and working in confined spaces. His usual hours of work were between 8:00 a.m. and 5:00 p.m. on Monday to Friday. There were three other persons working, namely, a person described as "the boss" and two other mechanics. 21The Plaintiff was not authorised, whilst working with the Employer, to order parts. He did not deal directly with customers, but would provide the information necessary to enable the Employer to do so. He did not prepare tax invoices for customers, or, apparently, perform any other administrative tasks associated with the business, other than keeping an initial record of the work that was thought required to be done, so that the customer's approval to perform the work could be obtained. In some instances, he performed the work and requested the parts and items used in carrying out the work to be ordered by "the boss". After the work was completed, the Plaintiff would pass the work sheet to "the boss", so that the tax invoice for the customer could be prepared by him. 22On occasions, the Plaintiff would be required to telephone a parts supplier with which the Employer dealt, to ascertain the availability, and cost, of a part that was required, but he simply passed on the information that he obtained to "the boss" who would order the relevant part. 23In February 2009, when he sustained the initial injury, the Plaintiff was working in the workshop of the Employer. His work, on this day, involved repairing a motor vehicle. During the course of his work, and as he was lifting a heavy gear box, with assistance, his right wrist was suddenly hyper-extended backwards and he became aware of pain involving the ulnar aspect of his right wrist. He continued working on his normal duties and hours, as, initially, he thought it was a simple strain. In the weeks following, "the acute pain somewhat settled, but it never went back to normal". 24On 7 May 2009, he was using a spanner to tighten a timing belt on a car when he felt a sudden increase of pain in the same area of his right wrist. 25Shortly thereafter, the Plaintiff saw his general practitioner, Dr Peng Ho, who referred him for a plain X-ray. The X-ray revealed that his right wrist was "essentially normal apart from some minimal ulnar negative variance of 1-2mm". He was then referred to see Dr Viglione, an Orthopaedic Surgeon, who organised a bone scan, which subsequently was reported as showing "small discrete injury to the distal ulnar". 26The Plaintiff was referred for an MRI Scan, on 11 June 2009, which was reported as normal. He was provided with a wrist support but not referred for any further treatment. 27A summary obtained from WorkCover NSW, which summary identified the Medical Certificates for the Plaintiff, reveal that he was unfit for work between 7 May 2009 and 16 June 2009; he performed light duties between 17 June 2009 and 17 July 2009; he was fit for "suitable duties (no twisting)" between 18 July 2009 and 11 August 2009; he was again unfit for any duties between 12 August 2009 and 11 September 2009; he was fit for "suitable duties (2kg lifting/ restrict use of hand)" between 14 September 2009 and 6 October 2009; he was unfit between 7 October 2009 and 28 October 2009; he was fit for "suitable duties (no lifting)" between 29 October 2009 and 27 November 2009; he was fit for "suitable duties (4 hrs per day/ no lifting)" between 28 November 2009 and 3 December 2009; he was unfit between 4 December 2009 and 9 April 2010; he was fit for "suitable duties (4 hrs per day/ 3 days/ no twisting)" between 12 April 2010 and 22 May 2010; he was fit for "suitable duties (4 hrs per day/ 5 days/ no twisting)" between 23 May 2010 and 17 June 2010; he was fit for "suitable duties (4 hrs per day/ 5 days/ less 5kg lifting/ no twisting)" between 18 June 2010 and 17 July 2010; he was fit for "suitable duties (less 5kg lifting/ no twisting)" between 18 July 2010 and 18 August 2010; he was fit for "suitable duties (less 5kg lifting/ no twisting)" between 19 August 2010 and 19 September 2010; he was fit for "suitable duties (less 5kg lifting/ no twisting)" between 20 September 2010 and 20 October 2010; and he was fit for "suitable duties (4 hrs per day/ 5 days/ less 2kg lifting)" between 29 October 2010 and 11 November 2010. 28In fact, the last day on which the Plaintiff worked with the Employer was 4 October 2010. Since then, he has not been employed as a car mechanic. 29Under cover of a letter dated 14 April 2011, from his solicitors to the Insurer, the Plaintiff sent a document headed "Statement of Claim - MetLife", claiming a disability benefit. In this document, he asserted that he was "unable to perform my usual regular duties and employer could not provide suitable duties". The Plaintiff set out his occupational history, as well as his education, training and experience. He also provided details of his disability, including the names of medical practitioners upon whom he had attended. 30In this document, the Plaintiff stated: "I commenced working as an apprentice as soon as I left school & have only carried out this line of work up until I had my injury. I have no other training skills and experience other than mechanical work. I am right handed and now have great difficulty with many activities such as writing, any forceful sustained activity or any repeative [sic] heavy work. I can no longer use my computer as typing on the keyboard makes it hurt & painful. I can no longer go back to my mechanical work as it was heavy and repeative [sic] & I was constantly required to reach into engine bases to change parts & undo nuts & bolts. A lot of these engine parts were in awkward confined spaces & I am unable to get into them." 31Also included with the claim form, was an "Employer's Statement Total and Permanent Disability Claim", which had been completed by the workshop manager of the Employer. Broadly speaking, it corroborated the information, available to the Employer, which had been stated by the Plaintiff. 32The Insurer received these documents on about 4 May 2011. 33Under cover of a letter dated 23 May 2011, the Plaintiff's solicitors forwarded to the Trustee a completed and executed Medical Statement and "Our client's Resume", which latter document provided more details of the Plaintiff's qualifications. The document commenced with the following statement: "Objective I am seeking a job role that is 'off the tools', as I have great communication skills, so customers enjoy dealing with me and I wish to further my career in the motor industry." 34The Plaintiff also referred to having commenced employment as an apprentice mechanic with Bonneville Automotive. He stated that he obtained a qualification in TVET automotive workshop procedure and maintenance of vehicles; that between 2003 and 2006, he had completed a Light Vehicle Mechanic Apprenticeship through Gymea TAFE whilst employed at Bonneville Automotive; that he had obtained a Certificate III Automotive Mechanical (Light Vehicle); and in 2005, he had completed a Post Trade Automatic Transmission Course. 35Additionally, the Plaintiff described himself as having "[a]bility to work unsupervised and as a team player"; being punctual and a great time manager; being a fast learner with strong attention to detail; and being "well travelled with excellent communication skills". 36The Trustee received these documents on about 26 May 2011. 37There is other evidence that the Plaintiff obtained his School Certificate and undertook an elective specialty automotive course. He had been employed as a kitchen hand, for three or four shifts usually on a Friday and Saturday night, for one or two months, at a café and had assisted a friend working in an organization known as "Skate Zone". (In his oral evidence, which I accept, the Plaintiff stated that the family of his best friend's mother owned Skate Zone and he would go there when his friend was working. He was not actually employed, but if it was busy, in order to assist his friend, he would hand out skates, sometimes work serving food and on occasions, if a customer fell over, assist to help him or her to get up. This would be for about 5 or 10 minutes. These details do not appear to have been provided to either of the Defendants.) 38The Plaintiff also held a driver's licence, a Motor Vehicle Repair Industry Authority Tradespersons Certificate and had also obtained certificates in the Responsible Service of Alcohol and Responsible Conduct of Gambling. 39By letter dated 30 August 2011, the Insurer sought, and obtained, a "Confidential Medical Report" dated 9 September 2011, from Dr Blair Christian, an Occupational Physician. By then, it had received a medical statement, dated 7 April 2011, from Dr Ho. It subsequently received a medical report dated 17 October 2011 from Dr Ho. 40By 23 February 2012, the Insurer had also obtained a copy of the Plaintiff's worker's compensation file from the worker's compensation insurer, Allianz. This file contained, amongst other documents, a copy of between 50 and 60 applications made by the Plaintiff, which had been provided to Allianz, under its letterhead, and which identified the party to whom the application for work had been made, the source of the job advertised, the date of the application and the contact name at the organisation to which the application was made. (A copy of each of these applications is to be found in Ex. C 375-413). 41The Plaintiff, in his oral evidence, said that every one of the appointments, or applications, referred to in those documents represented an actual application made by him personally and related to a job for which he had applied. He had said in his evidentiary statement which was read in the proceedings, that "[a]ll of my applications were not successful and I was often told that I had no experience for positions" for which I had applied. (Although this evidence was not cross-examined upon, there was no detail of specific rejection of an application upon the basis of lack of experience. In fact, counsel for the Plaintiff accepted that there was evidence of only one interview from a prospective employer at which the Plaintiff attended. I shall return to this aspect later in these reasons.) 42Advanced Personal Management ("APM"), an organisation to which the Plaintiff was referred, by Allianz, the worker's compensation insurer, conducted a vocational assessment and completed its report dated 24 January 2012. A Functional Capacity Assessment Report was made on the same date. A copy of each report was provided to the Insurer and the Trustee. 43An Earning Capacity Assessment, (being an assessment of an incapacitated worker's ability to earn) was completed on 6 February 2012. This report included a functional assessment, prepared by Dr Andrew Keller, an Occupational Physician, and a vocational assessment, prepared by Marcia Lee, a registered Psychologist. A copy of this report also was provided to the Insurer and to the Trustee. 44I shall return to the contents of each of these reports, in detail, later in these reasons. 45By letter incorrectly dated 23 February 2011, (it should be 2012), the Insurer informed the Plaintiff that it now held "sufficient medical information to make a determination with respect to your claim"; advised that the claim would be assessed under the definition of TPD in the Policy; and invited "submissions with respect to the material, as well as the provision of additional medical evidence", within 30 days from the date of the letter. 46The letter referred to "material we have obtained as provided in the below list of documents", which list included the various reports referred to and the "copy of [the] Allianz worker's compensation file". 47Under cover of a letter dated 23 February 2012, which the Insurer forwarded to the Trustee, the Insurer stated that it had provided the Plaintiff with an opportunity to provide more information and that it made "a similar submission to you to provide us, within 30 days from the date of this letter, [with] any response you care to make on the information on file as well as [the] submission of any additional evidence in support of the claim". 48By letter dated 26 March 2012, the Plaintiff's solicitors informed the Insurer that they did "not have any further medical reports at this point in time to submit in respect of our client's total and permanent disablement claim. We advise that we have read the report of APM and submit that Mr Birdsall does not have any transferable skills". 49By letter dated 19 April 2012, the Insurer wrote to the Trustee stating that it had reviewed the information and was able to make a determination, which was that: "... the Member has not met the definition of Total and Permanent Disablement, with respect to the Member being incapacitated to such an extent as to render the Insured Person unlikely ever to engage in or work for reward in any occupation or work which the Injured Person is reasonably capable of performing by reason of education, training or experience. MetLife is of the view that the Member is fit to return to any occupation within his education, training and experience. The evidence confirms that the Member will have capacity to perform the occupations of a Sales Assistant, Sales Representative and Customer Service Assistant on a full-time basis. As a result, we regret to advise that the Member's claim for a Total and Permanent Disablement benefit has been denied." 50There was no reference in this letter to the applications which were included in the Allianz file, or to the fact that the Plaintiff, by then, had been unable to obtain work for over 18 months from the date he last worked at the Employer. 51On 7 May 2012, the Trustee carried out an assessment of the Plaintiff's claim. The Trustee concluded, on the basis of the medical evidence provided, that the Plaintiff was "unlikely ever to return to his pre-injury occupation as a mechanic due to [the] ongoing pain in his right wrist and his ongoing inability to undertake any heavy, forceful, repetitive or restricted access duties required in such a role", but that the evidence, nevertheless, did not support a conclusion that he was unlikely ever to engage in work which he was reasonably capable of performing by reason of education, training or experience. The decision was made on the basis of the Return to Work Closure Report dated 3 December 2010, the reports of Dr Christian, including the report dated 9 September 2011, the APM report dated 24 January 2012, and comments of Dr Ho recorded by Dr Keller in his report dated 7 February 2012 and the other reports, a copy of which it had received. 52On 1 June 2012, the Claims Review Panel conducted a meeting, by teleconference, and having considered all of the evidence submitted, "resolved to agree with [the Insurer's] decision to decline the claim". 53By letter dated 6 June 2012, the Trustee informed the Plaintiff's solicitors of its decision. However, the letter went on to state: "The Panel noted that whilst the member was unlikely to ever be able to return to his full pre-injury occupation as a Light Vehicle Mechanic, there was no evidence to support that the member is considered Totally and Permanently Disabled within the Definition. The Panel also noted that the member does have capacity for suitable sedentary and/or light roles such as Customer Service Assistant, Sales Assistant and Spare Parts interpreter/Driver, which fit within his education, training and experience. The Panel, however, would reconsider the claim should Mr Bridsall [sic] be able to provide contemporaneous evidence to support his claim." 54There was no reference, in this letter, to the copy applications made by the Plaintiff, included in the Allianz worker's compensation file (although the file was referred to). There was, however, a reference to the Plaintiff's last day of work (said to be 1 October 2010) and his inability to return to his pre-injury duties. 55The Plaintiff did not provide any further contemporaneous, or other, evidence in response. Nor was there any application, subsequently made, to the Superannuation Complaints Tribunal. 56The Plaintiff commenced a University degree in 2013. To obtain his position in the University of Technology degree he sat for, and passed, a test called a "STAT Test" (a Special Tertiary Admissions Test), being a test for mature age students wishing to enrol in a tertiary university degree. The Oral Evidence of the Plaintiff at the Hearing 57The Plaintiff, when cross-examined, gave the following evidence which I accept: (a) He has excellent communication skills. (b) He went overseas in about 2012. On his journey, he was able to carry his luggage as required. (Part of his journey was by ship, which did not require him to carry his luggage once he had boarded.) (c) He enjoyed playing Play Station, which involved the use of controllers with a single plastic screen with curved wheels that sits in both hands with the thumbs and two fingers predominantly being used to press buttons. (Although he does not play as often now, he did not attribute this to any medical condition, but rather to his workload at University). (d) He was a keen inline skater. (e) He is able to ice-skate, about once a month, for one or two hours at a time. He has no difficulty putting on, or taking off, his skates or lacing and unlacing them. (f) He is not able to perform any mechanical repair work on his own car. He is able to do some maintenance, but this is very limited (e.g. changing the air filter). (g) He does not have any difficulty driving his car on the freeway for one or two hours at a time. (h) He is able to write more than an A4 page if he is required to; otherwise he uses a computer to type his assignments and other work. (i) He can use a computer for an extended period of time if he needs to, but on occasions, takes painkillers if necessary. He accepted that there is nothing preventing him from using a computer to input data or words, provided he can take a break when he needs to. (j) He applied for University when he felt that he did not have the experience to fulfil the roles that he had applied for, not having been offered a job and because the medical advice that he was receiving was to the effect that he should pursue retraining as an option. (k) In 2012, he believed he was physically capable of performing the tasks required of a customer service assistant, namely answering customer telephone enquiries through various channels, including telephone or email about products and services and could promote an organisation's goods and services. (l) In 2012, he believed he was physically capable of performing the tasks required of a sales representative, including advising customers on the location, selection, price, delivery, use and care of goods available from the store, with the aim of encouraging them to buy, and to return to buy in the future; he could, if taught, operate a cash register and accept payment, or prepare financial arrangements (e.g. invoices and contracts); take special orders for items not currently in stock, or not normally stocked, and notify customers when the items have arrived; package goods for customers and arrange delivery; price, stack and display items for sale and keep the store tidy and attractive; be aware of health, safety and welfare issues and practices; participate in stocktaking (counting and describing the goods in stock); arrange for the repair of damaged goods, or advise on needed repairs; and order items. If he were shown, he would not have had a difficulty learning the software required to be used for the input of data or a cash register. However, he said that he had no prior education, training or experience that enabled him to visit clients and demonstrate products, show samples and take orders; or to arrange client visits to major potential buyers by contacting buyers and making appointments; or to utilise methods for promoting products; or to make formal presentations of products using videos and training aids; or to organise product displays. (m) In 2012, provided he was shown how to use the relevant computer programme and otherwise had some training, he thought he could have physically performed the work of a motor vehicle parts interpreter, who takes queries, or orders, from customers and then uses his knowledge of the parts required to identify those parts. 58Having observed him in the witness box, I must say I found the Plaintiff to have good communication skills. He had no difficulty understanding the questions posed and answering them fully and in a detailed fashion as required. 59Furthermore, he had held down jobs successfully over a number of years prior to being injured, and he certainly did not lack motivation. Since the incident, he has successfully obtained a place at University without having completed his Higher School Certificate and has successfully completed the first year of a four year degree. (There was no suggestion that he would not successfully complete the current semester, or for that matter, be able to complete his degree.) The Policy of Insurance 60The Policy was a contract of insurance that commenced on 1 July 2008, as varied from time to time. 61In the Policy, relevantly, the following definitions appear: "Benefit means either a Death Benefit, TPD Benefit or Terminal Illness Benefit. Date of Disablement means the earlier of: ● the date of occurrence of the event or the manifestation of the condition which is the commencement of the six months consecutive inability to work that results in Total and Permanent Disablement; or ● the date the Insured Person suffers the loss of sight of an eye or the use of a limb, having already suffered the loss of sight of an eye or the use of a limb. Employer means an employer who makes contributions to MTAA Super on behalf of an Insured Person. Injury means bodily injury, which is caused solely and directly by external, violent and accidental means and is independent of any other cause. Insured Person means a person who has been nominated by you and accepted by us for insurance cover in accordance with the provisions of this Policy. Occupation means the employment or activity in which the person/member is principally Employed. Policy means this Group Life Insurance Policy, each application for cover and associated documents, the schedules to this policy (including the premium rate schedule), any Appendix to the schedule, any notices issued or received by us under the Policy and any variation of this Policy. TPD means "Total and Permanent Disablement" as defined in Clause 10 (where applicable). TPD Benefit means the benefit payable under clause 10. We/our/us means MetLife Life Insurance Limited ABN 75 004 274 882, AFSL No 238096 whose head office is at Level 9, 2 Park Street, Sydney in the State of New South Wales. You/your means Motor Trades Association of Australia Superannuation Fund Pty Limited ABN 14 008 650 628 AFSL 238718 as Trustee of the MTAA Superannuation Fund and the owner of this policy, and includes your properly appointed delegates." 62Clause 10.1 of the Policy relevantly provided that the Insurer would pay the TPD benefit to the Trustee in the event a member of the Fund suffered "Total and Permanent Disablement". 63"Total and Permanent Disablement" was relevantly defined in that Clause to mean: "Where the Insured Person has been employed at any time during the six months prior to the Date of Disablement: ... ● as a result of Injury or Illness, he/she has been unable to work for an initial period of six consecutive months and in our opinion is incapacitated to such an extent as to render the Insured Person unlikely ever to engage in or work for reward in any occupation or work which the Insured Person is reasonably capable of performing by reason of education, training or experience." 64I have referred to the definition of "occupation" above. There is no definition of "work" in the Policy. 65Clause 15 of the Policy required notification in writing "as soon as is reasonably practicable of an event entitling you to a Benefit" and indicated that it was a condition of payment of any Benefit that the insured person "provides us with such evidence to substantiate the claim as [the Insurer] may reasonably require". 66Clause 16.1 of the Policy stated that all Benefits would be paid in respect of an insured person to the Trustee (or a person nominated by the Trustee) who shall hold the monies in trust for the benefit of the insured person and, where applicable, in accordance with the terms of any Trust Deed. 67Clause 16.4(b) of the Policy provided that, when the Insurer's claim requirements had been satisfied in respect of the Insured Person, the TPD Benefit was to be paid as a lump sum payment of the TPD Benefit Sum Insured as defined in Clause 10. The Trust Deed 68In the Trust Deed, the following definitions relevantly appear: "Beneficiary means a Member, a Dependant of a Member or any other person who is entitled to be paid a Benefit from the Fund; Benefit means in relation to a Member the aggregate of the Member's Account; Insured Benefits means the amount, if any, payable under a Policy on death, illness, incapacity or total and Permanent Disablement and includes an Award Insured Benefit; Member means a person who has been admitted as a Member pursuant to a rule and who has not ceased to be a Member by reason of Clause 3.4; Policy includes the Group Life and Total Permanent Disablement Insurance Policy and the Group Income Protection Policy which the Trustee holds from time to time for the benefit of Members; Total and Permanent Disablement in relation to a Member, has the same meaning as Total and Permanent Disablement or an equivalent term as defined in the relevant Policy;" 69It can be seen, therefore, that the meaning of TPD in the Policy was incorporated into the Trust Deed, with the consequence that the question for the Insurer and the Trustee was the same. 70Clause 12.1 of the Trust Deed provided for the determination, by the Trustee, of the amount and nature of the Insured Benefits applying to a Member. 71Clause 12.2 of the Trust Deed enabled the Trustee, in order to "provide the Insured Benefits ... [to] enter into one or more group insurance policies with insurers for amounts and on terms and conditions agreed between the Trustee and the insurer ...". 72Clauses 12.5.2, 12.5.5 and 12.5.7 of the Trust Deed effectively provided that the Trustee was not liable to a Member for more than the amount of the Insured Benefit paid by the Insurer. 73Clause 21.1 of the Trust Deed directed that the form of payment could be by way of lump sum. Some Further Undisputed Facts 74The following facts are also uncontroversial: (a) The Trustee gave written notice of the claim to the Insurer "as soon as [was] reasonably practicable of an event entitling [the Plaintiff] to a Benefit" and that, in accordance with the condition of payment of any Benefit that the insured person "provides us with such evidence to substantiate the claim as [the Insurer] may reasonably require", the Trustee provided medical evidence in support of the Plaintiff's claim. (b) The Plaintiff was unable to follow his usual occupation by reason of accident for six consecutive months commencing from 4 October 2010. (c) His injury prevented the Plaintiff resuming his previous occupation, being that of a motor vehicle mechanic, at any time into the future. (d) The Plaintiff was an "Insured Person". (e) If it were established that the Plaintiff is totally and permanently disabled, he is entitled to $93,000, representing the TPD benefit pursuant to the Policy, and interest in the sum of $15,000 for the period 4 April 2011 to 6 May 2014. Thereafter, he would be entitled to interest calculated pursuant to Rule 32 of the Insurance Contracts Regulations 1985 (Cth). The Medical Evidence 75There were a number of reports relevantly before the Trustee and before the Insurer, a copy of which was included in the Court Book that was Ex. C. None of the doctors, with the exception of Dr Keller, was cross-examined. The parties provided me with a summary of the medical evidence in Ex. B. 76In broad terms, there is general agreement amongst the medical practitioners that the Plaintiff sustained an injury to the triangular fibrocartilaginous complex of his right wrist and developed symptoms in his right elbow and right shoulder. It appears that his main difficulty is with his right wrist. They also agree that the Plaintiff is not fit to return to his pre-injury duties as a motor mechanic. 77The following summary forms part of Ex. B: "Dr Viglione (treating Orthopaedic Surgeon) Dr Viglione provided reports to Dr Ho, the plaintiff's GP, dated 18 & 25 May 2009, 16 June 2009 and 6 July 2009. He arranged for a bone scan and MRI of the right wrist. He was unable to offer a clear diagnosis. His opinion on 6 July 2009 was that the plaintiff was not yet fit to return to heavy mechanical work but could do his current light work. Dr Perla (Occupational Physician) Dr Perla provided reports to the worker's compensation insurer dated 14 August 2009, 9 September 2009 and 30 September 2009. He noted that the bone scan showed a small discrete injury to the distal ulna. His opinion was that the plaintiff was fit for suitable duties with restrictions, namely no pulling or pushing of more than 2 to 3 kg, no forceful gripping with the right hand or repetitive flexion or extension of the right wrist (report dated 9 September 2009). Dr Nabarro (treating Hand Surgeon) Dr Nabarro provided reports to Dr Ho, the plaintiff's GP, between 22 September 2009 and 9 September 2010. He diagnosed a tear of the triangular fibrocartilaginous complex of the right wrist, which he repaired through arthroscopic surgery on 4 December 2009. He provided follow-up reports post-surgery dated 9 December 2009, 1 February 2010, 15 March 2010, 28 April 2010, 19 July 2010 and 9 September 2010. In his report dated 9 September 2010, he noted that the plaintiff continued to complain of some pain in the right wrist and ongoing pain in his right shoulder and elbow. He recommended vocational re-training. Dr Saunders (treating Sports & Exercise Physician) Dr Saunders provided reports to Dr Ho, the plaintiff's GP, dated 27 July 2010, 29 September 2010, 8 November 2010, 23 November 2010 and 19 January 2011. She concluded that the plaintiff had ongoing weakness and restriction of movement in the right wrist as a result of his injury and that there were associated issues with the right elbow and shoulder. She did not feel that the plaintiff would be able to return to his pre-injury duties as a mechanic. She was of the opinion that the plaintiff was fit for suitable duties, which she believed the plaintiff had undertaken (report dated 29 September 2010). Dr Ho (General Practitioner) Dr Ho provided numerous medical certificates and standard reports to the worker's compensation insurer. He provided a report to the plaintiff's solicitors dated 21 January 2013 summarising his consultations with the plaintiff. In his report dated 21 January 2013 he provided his opinion that the plaintiff's main disability was with his right wrist, that his right shoulder problem was probably an acute aggravation, that the plaintiff was unfit to return to his pre-injury duties as a motor mechanic or any job that required twisting actions with the right arm and that the best solution was for the plaintiff to re-train for another occupation. Dr Endrey-Walder (General Surgeon) Dr Endrey-Walder provided a report to the plaintiff's solicitors dated 14 January 2011. He concluded that the plaintiff sustained an injury to the triangular fibrocartilaginous complex in the lifting incident in February 2009 and developed mild recurrent epicondylitis of the right elbow and impingement in the right shoulder. He was of the opinion that the plaintiff was unfit to return to full duties as a motor mechanic. He considered any forceful, sustained, repetitive twisting and turning of the right arm would continue to produce symptoms. He considered the only reasonable long term option was some type of moderate duty work." 78It is obvious that these medical reports speak with one voice, and the Defendants accept, that the Plaintiff was not able to return to his pre-injury role as an automotive mechanic. But a number of them also confirm that the Plaintiff was fit for his pre-injury hours, and for suitable duties with restrictions, namely no pulling or pushing of more than 2 to 3 kilograms, no forceful gripping with the right hand or repetitive flexion or extension of the right wrist. Other Reports 79The following summary also forms part of Ex. B: "Dr (Blair) Christian (Occupational Physician) Dr Christian provided a report to MetLife dated 9 September 2011. He was of the opinion that the plaintiff's wrist symptoms were mechanical in nature. He considered the right shoulder symptoms were most likely related to a minor tendonitis or subacromial bursitis. He was of the opinion that the plaintiff was not able to return to his pre-injury role as an automotive mechanic as it involved regular and at times prolonged right hand gripping, repetitive forceful wrist movements, use of manual and power tools and heavy carrying and lifting. He was of the opinion that the plaintiff was fit for a sedentary or light role which did not require very prolonged repetitive activity. He considered the plaintiff would be able to work in roles such as a sales representative in the automotive industry, in a supervisory role as a mechanic or in a vehicle repairs assessment role. Ms Atteya (Rehabilitation Consultant) (a) Ms Atteya provided a report to MetLife dated 24 January 2012. (b) She was of the opinion that work as a Customer Service Assistant, Sales Assistant and Sales Representative was suitable in view of the plaintiff's education and employment history and transferable skills. Ms Brown (Occupational Therapist/ Rehabilitation Consultant) (a) Ms Brown provided a report to MetLife dated 24 January 2012. (b) She concluded that the plaintiff was not physically capable of returning to his pre-injury work as an automotive mechanic. She was of the opinion that the plaintiff was able to perform light or sedentary work such as that of a Sales Assistant, Sales Representative and Customer Service Assistant. Dr Keller (Occupational Physician) (a) Dr Keller provided reports to the worker's compensation insurer dated 16 January 2012 (a functional assessment, vocational assessment and labour market and work options analysis, with Marcia Lee, a Psychologist/ Rehabilitation Consultant) and 7 February 2012 (recording his review with the plaintiff's General Practitioner, Dr Ho). (b) Dr Keller was of the opinion that the plaintiff was fit for suitable work with restrictions, namely no lifting with the right hand of more than 5 kg. He was of the opinion that the plaintiff could undertake work as a Motor Vehicle Parts Interpreter, an Inquiry Clerk (Service Advisor) and Sales Assistant." The Defendants' Evidence 80I should note, because it was not in the summary, that Dr Christian did also state: "One obvious barrier for a return to alternate work is that upon ceasing school Mr Birdsall immediately started training and then working as an automotive mechanic. He has not worked in any other role. Thus, there may need to be consideration of vocational rehabilitation at this point." 81Dr Christian also noted that the Plaintiff did "not feel that he would be able to work as a sales rep[resentative], as he feels his temperament is not suited to that role". 82There was also no specific reference in the summary to a report dated 12 October 2010, from Elizabeth Cambourn, a senior Rehabilitation Consultant at APM. This report referred to the Plaintiff's "transferable skills" and the vocational options of "Customer Service Assistant and Spare Parts Interpreter" and "the additional vocational option of Service Advisor", each of which Dr Ho confirmed, on 12 October 2010, "were medically appropriate" for the Plaintiff to pursue. 83Because each was cross-examined, it is necessary to provide more detail of the reports from Dr Keller and Ms Lee referred to in the summary set out above. 84Their report is headed Earning Capacity Assessment and is dated 6 February 2012. The report was prepared, in part, by Dr Keller (Ex. C 309-316) and, in part, by Ms Lee (Ex. C 317-337). The part of the report prepared by Dr Keller was described as "the functional assessment". Allianz commissioned the preparation of the report. 85Both Dr Keller and Ms Lee received a copy of the same documents from Allianz (referred to at Ex. C 311) as well as some medical reports. 86Relevantly, Dr Keller wrote that: (a) The Plaintiff had sustained a right wrist cartilage tear. (b) The Plaintiff should not lift anything over 5 kilograms and should not engage in twisting or repetitive movements with his right hand. (c) He had reviewed the Work Options selected and the analysis of those Work Options by Ms Lee and confirmed that they are appropriate and consistent with his assessment of function and the recommended restrictions he had identified. 87Dr Keller was cross-examined, but very briefly. He gave evidence about his background and experience, which included having been a doctor since 1991, a specialist general practitioner since 1994 and an occupational physician since 2007. The part of the report he had prepared related to the Plaintiff's medical history and examination findings commencing at Ex. C 311, and concluded with the assessment of function, Ex. C 317. 88He had assessed the Plaintiff from a medical-physiological capacity point of view rather than a job suitability point of view. In fact, the report stated that "the physical functional and medical assessment contained in [the] report and relied upon by the Vocational Consultant [had] been prepared by the Medical Consultant who [had] examined the Worker" and that it "comprises an interpretation of the available documentary background information concerning the Worker's physical functional capacity and a functional and medical assessment of the Worker's current level of fitness". 89He accepted that the Plaintiff had a limitation in his right dominant hand and restriction of lifting up to 5 kilograms, but that he did not to have a restriction in his left hand. 90Having received Ms Lee's vocational assessment, he considered what she regarded as transferable skills and work options from the medical point of view and: "...so long as they appear to be within the medical capacities of the gentleman, I would then approve the roles, understanding that they are job roles rather than specific jobs, so for example, a customer service agent spans many different specific roles but in general, it would be safe that that would be an appropriate role within the medical restriction that I was proposing so there is a review process from her suggestion back to me for approval." 91Relevantly, Ms Lee wrote that: (a) She had been requested to perform an independent assessment of work options that may be suitable for the Plaintiff but could not provide any advice or treatment options. (b) She had identified the Plaintiff's employment history. (c) From her interview, she concluded that he had "solid communication skills". He did not appear to have any impairment in memory or concentration. (d) A return to meaningful employment could be a practical way for him to reintegrate into the workforce and prevent him from staying at home and drinking. (e) The "suitable work options" were: (i) Motor vehicle parts interpreter, which is described as selling motor vehicle accessories and parts in a retail or wholesale establishment. Although a vocational certificate is required to perform the associated duties, his trade qualifications and extensive experience as a qualified mechanic "should negate the need for a specific parts interpreter certificate". With his problem solving and computer skills, "he should effectively determine part sizes and details such as vehicle make, model, manufacturer and year" and be able to use databases to track stock orders or answer customer enquiries via email. He also had sufficient schooling (his School Certificate) (wrongly identified as his Higher School Certificate) to enable him to qualify. (ii) Customer service advisory role in the automotive industry. His solid communication skills taken with his automotive mechanic trade background would enable him to provide information and refer customers to other sources as required. (iii) Sales assistant in automotive industry. 92Ms Lee identified a number of available positions based upon actual job advertisements in each of these suitable work options. 93Ms Lee was cross-examined and gave the following evidence: (a) She was not provided with any documentation in terms of applications for alternative employment made by the Plaintiff, but was provided with some rehabilitation reports that indicated that he had applied for alternative employment. (b) She was not aware, at the time she prepared the report, that the Plaintiff had reported to Allianz that he had applied for in excess of 50 jobs but had been unsuccessful in obtaining any. (c) There were many factors relevant to submitting an application for employment and interviewing for a job. She would have to ascertain what the variable was in terms of him being unsuccessful in his applications before concluding that the lack of success impacted upon her assessment of his ability to enter into such work. Such things as the way his resume was written, as well as the cover letter, and the way he had presented at the interview was considered relevant. She also noticed that the applications the Plaintiff had made were "just faxed through. There was no follow up". She said that she did not know "if there was a follow up in relation to the service advisor roles". She said that this was relevant because, "often with employers, it's better to call directly" so that a candidate can liaise with the employer about the role for which he or she had applied, about any possible future vacancies and about whether he or she was successful or unsuccessful and the reasons why. (d) However, even though she had not taken his specific applications into account, she had taken into account his "transferable skills" as well as other documents that had indicated that he applied for other jobs. (e) She had based her conclusion regarding his "communication skills" on what appeared in documents she had read and also the way in which the Plaintiff presented on the day on which she saw him. Also, the light duties performed by the Plaintiff after the May incident, namely answering telephones, suggested that he had such skills. (f) Her conclusion about his ability to supervise staff was based upon his supervising an apprentice and upon what he had done whilst performing light duties after the May incident when he was injured, which included delegating tasks to an apprentice. (g) One of the transferable skills identified was dealing with customers, partly because of the work that he had told Ms Lee he had done at the café and at Skate Zone (to which she referred at Ex. C 318), but also because she understood that post injury he was answering the telephone which led her to "imagine" that he would have developed some customer service experience when he was doing that (Ex C. 319). This led her to conclude that he could obtain employment, "not as a customer service manager but as a service advisor or an enquiry clerk or sales assistant, or spare parts interpreter". (h) She assumed that his prior training and experience as a qualified mechanic would qualify him to act as a spare parts interpreter. (i) Despite having been informed that the Plaintiff "did not like people", that was described, by her, as "a preference", whereas she was "looking at his skills, education and training, and identifying suitable work options based on that". The Plaintiff's statement, the fact that he worked mainly by himself and the fact that, in relation to supervising others, he described himself as having low patience, were not matters that would impact adversely on his ability to obtain employment in the positions that she had identified. (j) In relation to the requirement for further training, she based her assessment upon her reading of the job advertisements identified, none of which indicated that, for example, an additional spare parts interpreter certificate was required. That did not mean, however, that no academic qualification was required. The Plaintiff's Submissions 94The Plaintiff's submissions may be summarised as follows: (a) Each of the Trustee's, and the Insurer's, decision to reject the Plaintiff's claim for the payment of the benefit is void because each breached its duties to the Plaintiff in considering his claim. (b) The Trustee had a duty to inform itself, properly, of the relevant facts prior to making each of its decisions, such that it would be a breach of that duty to fail to seek relevant information in order to resolve conflicting bodies of material: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254, at [66]. Any decision by the Trustee was required to be reasonable in all of the circumstances, or, in other words, was required not to be so unreasonable that a reasonable person in that situation could not have made it: Chapman v United Super Pty Ltd [2013] NSWSC 592, at [53]. Furthermore, the Trustee had an obligation to act in good faith in considering the Plaintiff's claim, as well as an obligation to act on a real and genuine consideration of the material before it and for sound reasons: Chapman v United Super Pty Ltd, at [64] and [68]. (c) In determining whether an insured person was totally and permanently disabled, the Trustee and the Insurer was each required to consider the Plaintiff's existing training, education and experience, and to take a realistic and common-sense approach to the question, including the question of whether he was realistically likely to obtain the work that he might be able to undertake: Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906; (2008) 15 ANZ Ins Cas 90-134, at [39], [40], [55], [64] (Hamilton J); Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913, at [76] (Brereton J) . (d) The Insurer owed the Plaintiff an obligation of good faith in considering his claim: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123, at [47], [56], [72] (Santow JA) with whom Spigelman CJ and Tobias JA agreed. This obligation required the Insurer to act reasonably in considering that claim and to consider and determine the correct question: Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115, at [53] (Ball J). (e) Each of the Trustee and the Insurer was not permitted to take into consideration the light duties suggested in determining whether the Plaintiff was totally and permanently disabled: Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173, at [58] (McDougall J); Halloran v Harwood Nominees Pty Ltd, at [84]. (f) If the Trustee failed to discharge its duties in considering the Plaintiff's claim, the ordinary course would be to refer the matter back to the Trustee. An exception to this approach applies where no reasonable person, applying the correct test to the material before the Trustee, could have reached the conclusion that the Trustee had reached: Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd, at [63] - [65] (McDougall J). (g) If the Insurer breached its obligation of good faith, the court itself could determine whether, on the material available to it, the claim fell within the policy: Erzurumlu v Kellogg Superannuation Pty Ltd, at [54]. (h) A consideration of the materials before the Trustee and the Insurer, demonstrated that each of the Trustee and the Insurer had failed to discharge its obligations to the Plaintiff when making their decisions. As a consequence, the court was entitled to, and should, determine, whether the Plaintiff's claim fell within the Policy. (i) The weight of the evidence supported the conclusion that the Plaintiff was permanently and totally disabled within the meaning of the Policy. He had not been able to work for six consecutive months following sustaining the injury and any work that he would be able to perform required him to be retrained. He had no experience in the field of customer service which was one of the occupations that it was suggested he could perform. (j) Each of the Defendants failed to consider that that the Plaintiff had unsuccessfully applied for many jobs between May and August 2011. On the basis of the evidence referred to, the Insurer ought to have concluded that the Plaintiff's disability and his vocational experience were such that it was unlikely that he would ever engage in any work or occupation without further education or training. (k) In the circumstances, the court should find that it was unlikely that the Plaintiff will ever be able to engage in or work for reward in any occupation or work which he is reasonably capable of performing by reason of his education, training or experience. He was, therefore, permanently and totally disabled within the meaning of the Policy. The Defendants' Submissions 95The Defendants' submissions may be summarised as follows: (a) In order to make out his claim, the Plaintiff must establish that the decision of each Defendant to decline his claim was a decision that no reasonable person could come to on the evidence then before it. The touchstone is unreasonableness - it is not the function of the court to decide whether it would have reached the same decision. (b) Each decision to decline the claim was not unreasonable. It was supported by the weight of the medical evidence. No less than three vocational assessments identified a number of occupations to which the Plaintiff could return. The overwhelming weight of the medical evidence is that the Plaintiff was, at the relevant date, and is, physically capable of performing these duties. (c) The fact that the Plaintiff had not, in fact, obtained such work, did not detract from the overall conclusion. The question was whether he was, at the relevant date, unlikely ever to engage in or work for reward in any occupation or work which he is reasonably capable of performing by reason of education, training or experience. (d) The Plaintiff was still a young man and has approximately 39 years of working life remaining. (e) It is only if the court determines that the decision is vitiated that the court will go on to consider independently whether the Plaintiff meets the requirements of the TPD definition. However, on the weight of the evidence, the court would not, in any event, reach a different conclusion to that of each of the Defendants. (f) In the circumstances, the Plaintiff's claim should be dismissed. Relevant Legal Principles 96Although I have set out most of what I state hereunder in Lazarevic v United Super Pty Ltd [2014] NSWSC 96, and even though there was no dispute about the applicable principles that were to be applied, in view of the importance of this case to the parties, I shall repeat some of the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application. 97The Policy should be given a businesslike interpretation, paying attention to the language used by the parties, the commercial circumstances which the document addressed and the object which it was intended to secure: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579, at [22]; Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246, at [35]. 98In order to obtain his entitlement, the Plaintiff was required to produce the information and evidence as required by the Trustee and the Insurer in order to satisfy it that the benefit was properly payable to the Plaintiff in accordance with the Trust Deed and the Policy. In this case, the benefit payable to the Plaintiff was to be funded out of the Policy, and was payable upon him, as a Member of the Fund, suffering TPD. This was determined according to the definition of that term incorporated by reference to the Policy. 99The Trustee was required to decide whether it was satisfied that the Plaintiff had suffered TPD, as defined in the Policy, on the ordinary meaning of those words in the Policy. It was required to independently consider whether it was so satisfied. It would not discharge its duty if it merely followed, or endorsed, the opinion of the Insurer. 100The definition of TPD required the Insurer to form an opinion on the question whether the Plaintiff, as a result of Injury or Illness, has been unable to work for an initial period of six consecutive months and whether he was incapacitated to such an extent as to render him unlikely ever to engage in any occupation or work which he was reasonably capable of performing by reason of education, training or experience. The task was to determine, on a balance of probabilities, whether an historical fact, namely the prognostic character of the Plaintiff's condition, at a time earlier than the court's consideration of the issue, had been established. That required the determination of the question whether, as a matter of fact, the Plaintiff was totally and permanently disabled within the meaning of that expression in the Policy. 101In Erzurumlu v Kellogg Superannuation Pty Ltd, Ball J set out the relevant legal principles, which he described as not being substantially in dispute, as follows (at [54] - [55]): "The Trustee has a duty to apply the trust assets in accordance with the Trust Deed. In performing that duty, it is required to inform itself properly of the relevant facts: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 at [30] ff. It is also required to act in good faith, on a real and genuine consideration of the material before it and for sound reasons, although it is not obliged to give reasons for its decision: see Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [32] ff per Santow JA (with whom Spigelman CJ and Tobias JA agreed). If, for any reason, the Trustee has failed to discharge its duties in considering the member's claim, the appropriate order is to refer the matter back to the Trustee. The court generally does not itself seek to execute the trust: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [33]. Although a member is not a party to the contract with the insurer who provides insurance cover to the trustee of a superannuation fund, the member has standing to enforce the contract as a beneficiary of the trust which holds the insurance policy as one of its assets. The member does not have a personal claim but is entitled to seek an order that the insurer pay to the trustee the amount due to the trustee under the contract: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [78] ff. An insurer, when considering a claim, must comply with its obligation of utmost good faith. That obligation requires the Insurer to act reasonably in considering the claim. The obligation to act reasonably includes an obligation to consider and to determine the correct question. It also includes an obligation to give the member an opportunity to answer any material on which the insurer intends to rely: Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-213 at [35] ff. Although the obligations of the trustee and the insurer are expressed in different terms, from a practical point of view, the grounds on which the decision of each may be challenged are similar: Sayseng (2003) at [77]. The duty of the court is to determine whether the insurer breached its duty of utmost good faith. It is not to substitute its own view for that of the insurer. However, if an insurer refuses a claim in breach of its obligation of good faith, the court itself can determine whether, on the material available to it, the claim fell within the policy: Sayseng (2005) at [36]. Although it is an issue that is ultimately to be determined by the terms of the trust deed and policy, generally the question whether a member suffers from total and permanent disablement is to be determined at the time and by reference to the facts that exist at the time the member first suffers from total and permanent disablement in accordance with the policy. It is at that time, and by reference to those facts, that the trustee and insurer are required to consider the question whether the member suffers from total and permanent disablement. There is a question whether that is when the member ceased work or when the qualifying period before any benefit is payable expires: compare Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 at [33] per Brereton J (who preferred the latter approach) and Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583 where Nicholas J appears to have preferred the former approach. The parties accept that nothing turns on which approach is adopted in this case. However, in my opinion, the preferable approach is the one adopted by Brereton J. On the wording of the Policy, Mr Erzurumlu could not have suffered from total and permanent disablement until the expiration of the six month period. It seems logical to assess whether Mr Erzurumlu could ever engage in work at that time." 102In that case, the definition of "Total and Permanent Disablement" in the Policy required that Mr Erzurumlu be unable ever to engage in any work for reward or occupation which he was reasonably capable of performing by reason of his education, training or experience. Ball J noted that: "The requirement of the clause is, to use the words of the Giles JA in Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204 at [88] when describing a clause in similar terms, 'quite emphatic'." 103In relation to the Trustee, in Finch v Telstra Super Pty Ltd, the High Court held that: "... There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of 'properly informed consideration'. If the consideration is not properly informed, it is not genuine. The duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid. Here, for example, the applicant was claiming a Total and Permanent Invalidity benefit to support himself for the rest of his life. His claim depended on the formation of an opinion by the Trustee about the likelihood that he would ever engage in 'gainful Work': that was not a mere discretionary decision. In the Deed there was a power to take into account 'information, evidence and advice the Trustee may consider relevant' and that power was coupled with a duty to do so. It would be bizarre if knowingly to exclude relevant information from consideration were not a breach of duty. And failure to seek relevant information in order to resolve conflicting bodies of material, as here, is also a breach of duty. The Scheme is a strict trust. A beneficiary is entitled as of right to a benefit provided the beneficiary satisfies any necessary condition of the benefit. Whether or not it will be decided hereafter that, consistently with s 14 of the Complaints Act, the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for 'information, evidence and advice' which the Trustee may consider relevant. ..." 104Bryson J explained, in Vidovic v Email Superannuation Pty Ltd (Supreme Court (NSW), Bryson J, 3 March 1995, unrep), at 13: "The formation by the trustee of an opinion is not analogous to judicial or arbitral decision of a disputed question ... There is no onus of proof on any person; there are no adversaries." 105In relation to the Insurer, the following principles, which have been taken from the authorities, particularly, Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, at 77,536-7, and Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, may be stated: (a) The insurer must consider, and determine, the correct question or questions. This essentially requires the correct interpretation of the policy of insurance. (b) If the insurer seeks an opinion from an expert, it must provide the expert with all of the information that is relevant to the expert's opinion. (c) Where an expert opinion is sought, the expert must also be asked the right questions. (d) Asking the right questions of the expert, however, does not require the insurer to ask the expert to address specific provisions in the policy. The insurer is itself making the ultimate decision, and not delegating the decision making to the expert. The critical enquiry for the court is whether the insurer, ultimately, has addressed the correct questions 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. (e) The insurer is under a duty to act in good faith and to observe fair dealing in respect of both the trustee and the insured. (f) As part of this duty, the insurer must have due regard for the interests of the insured. However, this duty is contractual, not fiduciary. This duty is analogous to the duty of a mortgagee exercising a power of sale of mortgage property. (g) Where a state of affairs governing entitlement of the insured to a benefit is to be determined after a consideration by the insurer, the insurer must act reasonably in considering the matter and in coming to its conclusion. (h) However, the insurer is not required to undertake the detailed consideration required of a court hearing (Chammas v Harwood Nominees Pty Ltd (1993) ANZ Ins Cas 61-175 at p 78,001); Weber v Tiss Pty Ltd [2005] NSWSC 67, per Nicholas J, at [8]. It must, however, take account of the relevant information available to it. (i) 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: Weber v Tiss Pty Ltd. (j) 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. (k) If the insurer's decision is successfully attacked, the matter upon which its opinion was required becomes one for determination by the court. 106Unless the view taken by the insurer could be shown to have been unreasonable on the material then before it, the decision of the insurer could not be successfully attacked on this ground. The question whether there was a reasonable basis for the decision turns on the evidence, taken as a whole, conveyed to the insurer at the time. 107In Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, at [63] - [64], Nicholas J noted, at [63], the precise matters for determination in the present case: "The definition of 'total and permanent disablement' has been considered in many cases. To meet the test in the definition the insured is required to prove that he is incapable of performing any occupation or work which he is reasonably capable of performing by reason of education, training, or experience. It is said to be a stringent test. It is one to be considered by reference to his existing education, training, and experience. The court is required to ascertain what the insured is actually capable of doing with regard to the qualification that the capacity for work under consideration is that for which the insured is reasonably capable of performing by reason of education, training, or experience. If he requires retraining in order to be employable, he is totally and permanently disabled within the definition. (Dumitrov v SC Johnson & Son Superannuation Pty Ltd [2006] NSWSC 1372, para 29; Ivkovic v Australian Casualty and Life Ltd (1994) 10 SR (WA) 325, p 351.) The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (i.e. paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory. (Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945, per Bryson, J para 54; Ivkovic p 351; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, paras 64, 65, 68.)" 108In Oberlechner v Watson Wyatt Superannuation Pty Ltd, Hamilton J, at [40], after referring to what Nicholas J had written, added: "Three propositions emerge from what was said by Nicholas J and from other judicial pronouncements as to the interpretation of the criterion. The terms of the criterion must be stringently observed. The test must be applied by reference to the insured's existing training, education and experience. And a realistic and common sense approach must be taken to the assessment of whether or not the insured meets the criterion. Whilst Nicholas J was speaking in a context where the Court was to make the assessment, naturally, the proper meaning of the criterion as it should be applied by the insurer is the same." 109In Halloran v Harwood Nominees Pty Ltd, the court considered the entitlement of a worker to benefits asserted to arise under a superannuation scheme as a result of a disability. The worker was required to prove to the satisfaction of the trustee that "the member has become incapacitated to such an extent as to render the member unlikely ever to engage in work for reward in any occupation or work for which he or she is reasonably qualified by education, training or experience ...". At [76], Brereton J analysed the relevant clause as follows: "That phrase can be distilled into the following components. (1) Unlikely (meaning a probability of less than 50%) [White v The Board of Trustees [1997] 2 Qd R 659, 673] (2) Ever to engage (meaning on a full-time regular basis) [Riley v National Mutual Life Association [1986] 4 ANZ Ins Cas 60-684, 74063; Chammas; Nile v Club Plus Superannuation Pty Limited [2005] NSWSC 55, cf Wyllie v National Mutual Life Association of Australasia [1997] 217 ALR 324; Sayseng v Kellogg Superannuation] (3) In any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers) [Cavill Power v Royale; Dolton v State Authority Superannuation Board [1995] NSWIRC at 159 [11.1]] and being work which he is likely to be able to obtain [Chammas, Nile v Club Superannuation, [64]]; (4) For which he is reasonably qualified by education, training or experience (as at the date of assessment) [Giles, Fernance]." 110In Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325, at 351, Commissioner Roberts-Smith QC, sitting as the District Court of Western Australia, wrote: "I should also say in passing that the word 'unlikely' in the definition is of some significance. It clearly sets a much lower test than would be posed if an insured had to establish that he was incapable of following his usual or any other occupation. Thus, even if the evidence were to leave open a possibility that in the future an insured might be able to do so, if it nonetheless established that he or she was unlikely to be so able, that would be sufficient to make out the claim." 111In Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCA 376; (2002) 118 FCR 170, Heerey J adopted the reasoning of Commissioner Roberts-Smith QC. 112In Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55, the relevant total and permanent disability clause provided: "Having been absent from employment with the Company for six consecutive months and having provided proof to our satisfaction that the member has become incapacitated to such an extent as to render the member unlikely ever to engage in or work for reward in any occupation or work for which the member is or may become reasonably qualified by education training or experience." 113Brownie AJ wrote, at [64] - [65]: "As Hodgson J pointed out in Chammas ... one must consider not just the theory that someone is physically fit to do particular work, but also the actual likelihood of that person obtaining employment, meaning full time employment (or, I take it, substantially full time employment, generally comparable with the plaintiff's employment before his 1996 injury) that was reasonably open to the plaintiff. Given the plaintiff's education, training and experience, the prospects of his actually obtaining employment in any of the jobs suggested by Dr Innes-Brown were remote, and perhaps non-existent. ... The notion that some employer might employ him to do 'clerical work' had to be reconsidered in the light of the plaintiff's affidavits, and one is left to wonder who might realistically be expected to employ him in that capacity, given his education, training and experience; and the proposition that he might be employed as a parking patrolman, standing and walking all day, is equally unpersuasive, given the plaintiff's statements in his affidavit, and the medical evidence." 114In Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd, McDougall J expressed a similar view, concluding, at [58], the court "is required to take a realistic and common-sense approach. There must be a real prospect, and not merely some theoretical possibility, that the work will be available. It should not be work in some special light duties job created for the injured worker." In this regard, any alternative occupation identified by the insurer must be an actual, not hypothetical, occupation. Such an occupation must be a real occupation, not one that is manufactured and it must exist in the real world, not some theoretical abstraction: Munios v Johnson and Johnson Retirement Benefits Ltd (Supreme Court (NSW), McLelland J, 5 December 1996, unrep). 115In Sayseng v Kellogg Superannuation Pty Ltd, Bryson J, wrote, at [64] and [73]: "The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually obtain work for reward (i.e. paid employment) for which he is qualified by education, training or experience, and whether his condition has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory ..." 116In Kenan Berk v Westpac Securities Administration Ltd [2010] NSWSC 28, Nicholas J incorporated a concept of remunerative work for which the insured was qualified by education, training or experience. His Honour, at [131], wrote: "The definition relates to the disability to obtain future employment in any occupation. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually again work in any occupation (i.e. remunerative work) for which he is qualified by education, training or experience, and whether it is likely his injury has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory (Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945, [54]; Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325, p 351; Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55, [64], [65], [68])." 117In Lazarevic v United Super Pty Ltd, I wrote, at [108]: "The definition relates to disability to obtain future employment. It requires consideration of whether or not, on the evidence, it is probable that the Plaintiff would actually obtain paid employment for which he was qualified, by education, training or experience, and whether his condition disabled him from doing what he was qualified, by education, training or experience, to do. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory: Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583, at [64]. Similarly, the concept must include that which is reasonably available and in an area in which it could be expected the insured, in the position of the Plaintiff, could reasonably apply." 118In Folan v United Super Pty Ltd [2014] NSWSC 343, at [68], Nicholas AJ opined that: "... the phrase '...is unlikely ever to be able to' in the TPD definition focuses on the question whether it is improbable that the insured will ever become engaged in regular paid work. It requires an insurer to take into account, not just the theory that a person is physically fit to do particular work, but also the actual likelihood of that person obtaining regular employment for reward other than casual work or other work of an intermittent nature. Inherent is the issue whether the work, for which the insured is reasonably fitted by education, training, or experience is, in the real world, work which as a matter of probability is available to him." 119Thus, some evidence should be given about the circumstances of the "work", including the nature and conditions under which it is to be performed and whether there are any specific qualifications, or requirements, associated with the particular work. It must also be remembered that the phrase "occupation or work" referred to, is limited by the words "is reasonably capable of performing by reason of education, training or experience". 120The words "education, training or experience" are used both disjunctively and conjunctively. A person can be reasonably capable of performing by reason of education or training or experience or a combination of each. The words describe a capacity to undertake a new job based on education, training or experience. They constitute a link between the job and previous education, training or experience: Dargan v United Super Pty Ltd [2011] NSWSC 1316, at [44] (Gzell J). 121It is relevant to take into account the fact that the Plaintiff has been unable to obtain employment. To that extent, the matter may be looked at in retrospect: Giles v National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-751. 122In Halloran v Harwood Nominees Pty Ltd, Brereton J, also considered the relevance of further training. His Honour wrote, at [34] - [36]: "In Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 (a decision which was reversed by the Full Court of the Industrial Court on appeal, on different grounds which do not affect its authority on this point) Hungerford J said (at 329): Inherent in those findings of unfairness is my conclusion that the definition of 'totally and permanently disabled', which refers to 'any occupation or work for which he is reasonably qualified by education, training or experience', makes the assessment of the relevant incapacity as at the time of the assessment and not after retraining. In other words, whether a member is unlikely ever to engage in work is to be determined according to his qualification, after the period of six consecutive months absence, at that time and not at some future time as a result of the retraining; that must be so, it seems to me, because the definition refers to any occupation or work 'for which he is reasonably qualified'. The definition does not admit, in my view of it, qualifications by education, training or experience which the member may or may not be able to obtain in the future. In Fernance, the Court was considering a definition of total and permanent disablement in an insurance policy issued by National Mutual in terms relevantly identical to that in the present case. In my view, it is clear that Hungerford J, when speaking of 'the future', was speaking of the future after expiry of the period of six consecutive months absence, not the future after the date of hearing. Read as a whole, I think it is clear that when his Honour referred to the 'time of assessment', his Honour was referring to the expiry of the six month period - that is, the date as at which the assessment of total and permanent disability was to be made - and not the date on which the assessment was in fact made in the sense of the date of the decision of the trustee or the hearing before any court. Mr Cavanagh submitted that subsequent events, including actual employment for which the employee became suited only by retraining after the relevant date, were relevant and could be taken into account. In many cases, as was indicated in Pigeon J's judgment in Giles, evidence of subsequent events may be relevant. In the present case, if Mr Halloran had returned to work as a greaser or had returned to heavy labour that would prove that he could not have been permanently disabled for work for which he was suited as at the relevant date for assessment. He was, undoubtedly, suited by education, training and experience for work as a greaser or a labourer and had he subsequently returned to such work it could not have been argued that he was shown to be permanently disabled from it after an absence of six months from CSR. But the definition in the policy is concerned with employment for which the employee was suited at the expiry of the six month period. As Fernance makes clear, employment for which an employee becomes suited only subsequently by reason of retraining is not the type of employment which is contemplated by that definition, because it is not employment for which the employee was at the relevant date of assessment suited by his or her then education, training and experience. In my view, to take into account work for which the employee became suited only by subsequent retraining would be contrary to the authority of Hungerford J's decision in Fernance, and would also be contrary to the definition. If an employee is not disabled as defined at the relevant date, a subsequent deterioration in his or her condition does not qualify him for a disablement benefit. Conversely, if he or she is disabled as defined at the relevant date, a subsequent improvement in his or her condition does not retrospectively disqualify the employee from the benefit. To adopt the construction for which the defendant contends would make the time at which the application for a benefit is made and the time at which it was considered by the trustee decisive rather than the time objectively fixed by the trust deed as at which that decision should be made. It might well result in different decisions properly being made by a trustee on an initial application and on an application for reconsideration, and then a different decision again by a Superannuation Complaints Tribunal conducting a review as at the date that the matter came before it. That result seems to me an undesirable one." 123In Chapman v United Super Pty Ltd, Young AJ, at [32] - [34], put the principle this way: "Putting aside situations of de minimus training one does not require a plaintiff to undergo a course of retraining in order to make him or her employable. Even if an injured ballet dancer has the intellectual capacity to go to university, get a law degree and become a barrister, that would not disqualify him or her from being totally and permanently disabled (assuming that they were not able to take any part-time job that was reasonably fitted to his or her then current education, training or experience). This construction was reached by Hungerford J in Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300 at 329 and affirmed by Brereton J in Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 at [36]. Dargan makes it clear at [37] that it is no bar to the finding that work is within the plaintiff's education, training or experience that a short qualifying course of training or retraining may be required." 124The use of the word "ever" in the definition should also not be forgotten. That word allows the insurer to look well into the future. The language ("unlikely ever") focuses on the duration of the occupational incapacity or inability to engage in or work for reward. In this respect, the age of the Plaintiff is a relevant consideration. 125The Policy does not state what degree of unlikelihood must be established. Determination 126As stated in the Defendants' submissions, the definition of TPD involves a two-step process, each of which must be satisfied. The first step is that it must be established that the Plaintiff was unable to work as a result of injury for an initial period of six consecutive months. There was no dispute that this had been established. 127I have earlier referred to the definition critical to the outcome of the proceedings, namely, the definition of TPD in Clause 10.1(a) of the Policy. The parties were content to proceed on the basis that second stage involved the question whether, as a matter of fact, the Plaintiff was totally and permanently disabled within the meaning of that expression in the Policy, which in turn required the Insurer to address the question whether the Plaintiff had the capacity ever to return to work which he was reasonably capable of performing by reason of education, training, or experience. 128It is noteworthy that, in none of the medical reports referred to, is there any suggestion that the Plaintiff's symptoms, complaints, or restrictions upon activities, were not genuine. Nor was there any suggestion that he was not motivated to find alternative work or that he had not made the applications for such work the subject of the evidence. 129The liability of the Insurer under the Policy depended upon the formation by it of an opinion as a condition of its liability. In those circumstances, the Insurer was bound by a duty of good faith and fair dealing to act reasonably and fairly in considering and determining the matter and, in particular, the Insurer was duty bound to have due regard to the interests of the Plaintiff in forming, or declining to form, the opinion upon which its liability was dependent: Edwards v Hunter Valley Co-op Dairy Co Ltd, at 77,536. 130As stated, the work the Plaintiff was said to be unable to perform for six months must in some way be confined to that which he was suited by physical ability, intellectual capacity and/or education or qualification and/or experience. The concept of work must include that which is reasonably available locally and which he was reasonably capable of performing. Were it otherwise, it could be argued that there could be positions, including interstate and overseas, which might theoretically be available to an insured. To import such a concept would be impractical. 131However, what must be established is that the decision of the Insurer, and of the Trustee, to decline his claim was a decision, in each case, to which no reasonable person could come on the evidence before it. The touchstone is "unreasonableness". 132There was no submission made that the Insurer or the Trustee acted unreasonably by considering material without giving the Plaintiff an adequate opportunity to respond to that material. Nor is there any submission that either acted unreasonably by failing to obtain additional material or by addressing the wrong question. What is submitted is that each acted unreasonably by failing to consider relevant material and in the way in which it analysed the material that it considered. 133I do not consider that either of the Defendants acted unreasonably in the way in which it analysed the material that it considered. In this regard, I consider that each correctly understood the effect of the evidence before it. 134In particular, each was entitled to take into consideration that a number of medical practitioners (Dr Ho, Dr Christian and Dr Keller) had concluded that the Plaintiff's medical condition did not prevent him in engaging in other work of the type that had been suggested by Ms Lee. In this regard, it is to be remembered that Dr Ho was the Plaintiff's treating medical practitioner and he had agreed with Dr Keller that the injuries and disabilities from which the Plaintiff suffered would not prevent alternative employment. 135In his report dated 9 September 2011, Dr Christian opined that the Plaintiff "would be able to work in roles such as a sales rep[resentative] within the automotive industry, in a supervisory mechanic role where he is not undertaking hands on mechanical work or in a vehicle/repairs assessment role". These roles were deemed to be "within [the Plaintiff's] physical capacity at a full-time work level". 136Similarly, Dr Keller's conclusion was that the work options identified by Ms Lee were "appropriate and consistent with [his own] assessment of function and ... recommended restrictions". 137Dr Keller conducted discussions with Dr Ho, as the Plaintiff's "Nominated Treating Doctor", and the two "agreed" that the Plaintiff was capable of undertaking work on a full-time basis, and "a reasonable amount of overtime" as a motor vehicle parts interpreter, an inquiry clerk or a sales assistant. 138This capacity for alternative employment was further supported by Mr M Pagdanganan, a Rehabilitation Consultant, who, on 19 November 2011, provided to Dr Ho "approval" for the Plaintiff to pursue an occupation as a spare parts interpreter as "a suitable vocational option". 139There was also evidence of the availability of jobs. In her vocational assessment, Ms Lee identified 22 positions advertised online for the role of spare parts interpreter (one of which was extracted in full), 18 positions advertised online for the role of service advisor (one of which was extracted in full) and 45 positions advertised online for the role of sales assistant in the automotive industry (one of which was extracted in full). 140There was also an Appendix annexed to the APM Report entitled "Labour Market Research Information". That Appendix outlined that: "From information sourced it appears that employment as a customer service assistant would be suitable for [the Plaintiff]. Based on the review of the labour market in [the Plaintiff's] area, there appears to be realistic employment opportunities at [the Plaintiff's] skill level." 141The same conclusion was reached in respect of a sales assistant position and a sales representative position. 142In each case, job competition for the respective positions was rated as either "easy" or "not too hard" and the Plaintiff's "skills were assessed as suited to compete for entry vacancies". 143I do not accept that the Insurer or the Trustee failed to consider the question of further vocational training. Ms Lee specifically referred to such training, but concluded, from information available to her, that the training would not be required because of the Plaintiff's prior training and experience. 144For example, in relation to the role of a sales assistant, it was found that the Plaintiff's "experience and skill set was regarded highly particularly for motor vehicle related roles". 145The Plaintiff also had prior experience using a computer and his training and experience as an automotive mechanic would have provided, no doubt, a familiarity with automotive parts and at least some capacity to deal with members of the public. 146However, it is tolerably plain that, in making its decision to decline the claim, the Insurer and the Trustee each failed to take into account that the Plaintiff had made an application for many different positions without success. Whilst there was a specific reference to the Allianz worker's compensation file, in which a copy of those applications was to be found, there was simply no reference, in either of the letters declining the claim, to those applications, or to the Plaintiff's many attempts to obtain alternative employment. 147I reject the Defendants' submission that a reference to the worker's compensation file, without more, leads to the inference that each did consider the applications that were included in that file. To the contrary, I consider that the evidence of Ms Lee, to which I have referred above, leads to the conclusion that neither gave consideration to them. 148Furthermore, by the date of each decision, the Plaintiff had been out of work for almost three years. In Finch v Telstra Super Pty Ltd, at [18], a "key guide" to whether the member had, in fact, suffered a "disablement" was the fact of his continuous absence from work for 6 months. The fact that the Plaintiff had continued to be unable to find any alternative employment as at April 2012 was a relevant consideration, particularly when it was not suggested that he had not made a genuine effort to obtain alternative employment. 149In my view, this was a relevant consideration that each ought to have considered and it was unreasonable for each not to do so. However, that is not the end of the matter. 150In the light of this finding, and as agreed by the parties, it is then appropriate for the court to determine the Plaintiff's claim and the question whether, as at April 2011, it was unlikely that the Plaintiff would ever engage in or work for reward in any occupation or work which he was reasonably capable of performing by reason of education, training, or experience. That requires the court to consider not just the theory that a person is physically fit to do the particular work that was regarded as suitable, but also the actual likelihood of him obtaining regular employment for reward other than casual work or other work of an intermittent nature. Inherent is the issue whether the work suggested was work which the Plaintiff was reasonably capable of performing by education, training, or experience and whether, in the real world, it was work which, as a matter of likelihood, was available to him. 151In my view, the words "reasonably capable of performing by reason of education, training or experience" are critical. The work that is referred to is not, necessarily, that in which the Plaintiff was engaged prior to having sustained the injury referred to. It is the work described, being work that the Plaintiff was reasonably capable of performing by reason of education, training or experience. The phrase is a composite phrase placing a limitation on the basis that a person might be reasonably capable of performing alternative work. It does not have to be established that the insured person had actually performed such alternative work prior to his disablement. 152Nor does the phrase, in my view, exclude further training reasonable for the insured to undertake. In the present case, there is nothing to suggest that, as at the date the Plaintiff's disability fell to be assessed, he was not capable of completing any necessary training course likely to be required to enable him to use his transferable skills. Such a training course did not place this work outside the scope of work he was already reasonably fitted for by his existing education, or training, or experience. 153In this regard, I note that in 2012, he was able to successfully pass the Special Tertiary Admissions Test enabling his entry into University. There is no evidence of any additional education, training or experience undertaken to enable that to be achieved. There is also no submission made that he did not have the capacity to complete what would have been required to perform the suitable work suggested by Ms Lee. 154It follows that, at the time his capacity for employment came to be assessed, the Plaintiff was reasonably capable, with some retraining if that were necessary (which it may not have been), to carry out the work suggested on a full-time basis. 155Alternatively, the evidence suggests that any retraining that would have been required would have been minimal and that he would have had the capacity to undertake it. Furthermore, it would have been further training that would be reasonable for him to undertake in all the circumstances. 156I have considered carefully, the applications made by the Plaintiff for work. However, I respectfully agree with Ms Lee that the mere failure to obtain a job that had been advertised, by reference only to having made an application, sent by email or facsimile transmission to a proposed employer, when one does not know what steps, if any, the Plaintiff took, apart from submitting the application, does not lead to the conclusion that he would not "ever" obtain work which he was reasonably capable of performing by reason of education, training or experience. 157My analysis of the whole of the evidence leads me to conclude that there were specific areas of work available that the Plaintiff was reasonably capable of performing by reason of education, training or experience. The Plaintiff, in my view, had the ability to engage in such work for reward, in an intellectual sense, as well as by reference to his education, training or experience, and also by reference to his medical condition. 158Having considered all of the evidence, I am not satisfied it has been established that the Plaintiff was within the definition of TPD in the Policy and the Trust Deed. In these circumstances, he was not entitled to be paid the relevant amount. It follows that the Plaintiff's claim must be dismissed. 159I shall hear the parties on costs at a mutually convenient time if they cannot reach agreement. I shall stand the matter over to a date suitable to the court and the parties unless the parties are able to agree. 160I order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (Rule 31.16A and Rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2014