FEDERAL COURT OF AUSTRALIA

Felix v NULIS Nominees (Australia) Ltd [2020] FCA 591

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The parties have leave to file written submissions of no more than five pages within 14 days of these orders in support of any costs order which they may seek, failing which there shall be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The underlying claim which the applicant seeks to vindicate in this proceeding is a claim for total and permanent disablement (TPD) benefit under an insurance policy provided by the second respondent, AMP Life Ltd. The applicant obtained cover under the policy by virtue of her membership of the Plum Super Fund, which is now represented by its successor fund, the MLC Super Fund. The first respondent, NULIS Nominees (Australia) Ltd, is the trustee of the MLC Super Fund.

2    Although the first respondent filed written submissions, it subsequently filed a submitting notice and has taken no further part in the proceeding.

3    The applicant’s claim was initially declined by AMP in January 2015 which decision was affirmed by the trustee of the Fund in May 2015. The claim was again denied after a review by AMP in November 2015 which was affirmed by the trustee of the Fund in December 2015. The applicant then registered a complaint with the Superannuation Complaints Tribunal in January 2016 pursuant to s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

4    By a written “determination and reasons” dated 6 January 2019, the Tribunal affirmed the decision of AMP and the trustee’s affirmation of that decision on the basis of being satisfied that in its operation in relation to the applicant, it was fair and reasonable in the circumstances.

5    By notice of appeal filed on 5 February 2019, the applicant appeals against the determination of the Tribunal pursuant to s 46(1) of the Act.

Background

6    After having worked in a number of different roles for different employers over many years, the applicant commenced employment as a call centre operator on 31 January 2008. On that day, she joined the Fund whereby she became a beneficiary of a Group Life Superannuation Policy held by the Fund. She was 41 years of age.

7    On the 28 March 2008, the applicant injured her right ankle and knee when she tripped at a railway station on her way to work.

8    Between that date and 15 January 2010, the applicant attended work sporadically. For much of this period she was provided with WorkCover medical certificates indicating that she was unfit for work or for her normal duties. During the calendar year 2009, the applicant attended work for only 22 days.

9    On 15 January 2010, the applicant ceased reporting for work at the call centre. On 4 February 2010, her employer terminated her employment on the basis that she was unable to fulfil the inherent requirements of her appointment.

10    In February 2011, the applicant initiated her TPD claim. Due to non-response from the applicant, the claim was closed on four different occasions. It was re-opened in March 2014 and submitted to AMP for assessment. As indicated, it was declined in January 2015 and then again on review by AMP in November 2015, and on each occasion AMP’s decision was affirmed by the trustee of the Fund. For simplicity, in referring to AMP’s decision I will not refer also to the former trustee’s affirmation decision which was also the subject of the complaint to the Tribunal.

The policy terms

11    There was no disagreement about the applicable policy terms.

12    Clause 1.9 identifies three categories of cover, namely death, terminal illness and TPD. In respect of TPD, it refers to clause 3.5.

13    Clause 3.5 provides for a TPD benefit, and states that the meaning of “total and permanent disablement depends on which definition of total and permanent disablement the person insured has under this policy, as detailed in the schedule”. Needless to say, the italicised terms are defined terms in the policy.

14    Relevantly, the defined terms set out in clause 8 include the following:

Own occupation means the occupation or regular duties in which the person insured has spent most amount of time engaged in with the employer during the 12 months prior to the last day at work.

…

Total and permanent disablement means:

A person insured is totally and permanently disabled if he or she is:

Part (a) Unlikely to work

Where in the schedule the total and permanent disablement definition for the person insured is defined as ‘any occupation’:

When all of the following apply to the person insured:

•    an injury or sickness stops the person insured working in any business, occupation or regular duties continuously for 6 months, and

•    after considering all evidence which we believe is necessary to reach our view, in our opinion that the person insured is unlikely ever to be able to work in any business, occupation or regular duties, whether paid or unpaid, for which he or she is reasonably qualified by education, training or experience. It is immaterial whether the business, occupation or regular duties are full-time, part-time or on any other basis.

Where in the schedule the total and permanent disablement definition for the person insured is defined as ‘own occupation’:

When all of the following apply to the person insured:

•    an injury or sickness stops the person insured working in their own occupation continuously for 6 months, and

•    after considering all evidence which we believe is necessary to reach our view, in our opinion the person insured is unlikely ever to be able to work in their own occupation.

…

15    The relevant schedule indicates in respect of the TPD cover that the relevant choice was “any occupation” rather than “own occupation”. It was common ground that the result is that it is only the “any occupation” part of the TPD definition in Part (a) of the overall TPD definition which is applicable.

The Tribunal’s determination and reasons

16    The Tribunal recorded that it had been provided with a number of medical and paramedical reports concerning the applicant’s medical conditions of injured right ankle and inflammatory arthritis affecting both ankles and feet. It recorded that the injury to the right ankle occurred on 28 March 2008 and was slow to settle which adversely affected the applicant’s medical fitness for some considerable period. The inflammatory arthritis was diagnosed initially as rheumatoid arthritis in late 2010 after the left ankle also became inflamed.

17    The Tribunal concurred with AMP that the TPD definition (as set out above) stipulates that a member must satisfy two limbs. The first limb being that, due to an injury or sickness, the member must stop working in any business, occupation or regular duties consistently for six months. It is at the end of this six-month waiting period that the date of assessment for the second limb of the TPD definition is set (i.e. whether the member is unlikely ever to work within their education training and experience etc.).

18    Since the applicant ceased working for her employer on 15 January 2010, the relevant six-month period was from then until 15 July 2010. The date for the assessment for the second limb of the TPD definition was thus taken to be 15 July 2010.

19    The Tribunal reasoned that the first limb of the test contains an objective test and the use of the word “any” is given its ordinary meaning; therefore it is not confined to the applicant’s own occupation and usual hours. The Tribunal found that at the time the applicant stopped working for her employer, she was certified fit to perform part-time work albeit with restrictions, however her employment was terminated as she could not fulfil the inherent requirements of her job on a full-time basis.

20    The Tribunal agreed with AMP that there was no evidence to suggest that the applicant suffered from a functionally impairing condition that would have precluded her from being able to perform her usual occupation or a suitable alternative employment option. On that basis, the Tribunal found that the applicant did not satisfy the first limb of the TPD definition.

21    In respect of the second limb of the TPD definition, the Tribunal identified the relevant question to be whether it was fair and reasonable for AMP not to form the opinion, with reference to the definition, that the applicant:

is unlikely ever to be able to work in any business, occupation or regular duties, whether paid or unpaid, for which he or she is reasonably qualified by education, training or experience. It is immaterial whether any business, occupation or regular duties, are full-time, part-time or any other duties.

22    The Tribunal concluded that the medical evidence suggests that although the applicant suffered a significant injury to the right ankle which was subsequently slow to settle and caused some degree of disability regarding pre-injury duties up to and throughout 2010, the medical certificates suggest that she was judged by her treating practitioners to be fit for alternative duties of 15 hours per week up to at least 30 December 2012. That was well after the assessment date of 15 July 2010.

23    The Tribunal found that at the assessment date the applicant retained a part-time capacity for work, for which she was reasonably qualified by education, training or experience. Therefore, the applicant did not meet the second limb of the TPD definition.

24    As a consequence, the Tribunal determined that it was fair and reasonable for AMP to deny the applicant’s TPD claim.

The grounds of appeal

25    Although the notice of appeal sets out five grounds of appeal, the second ground was not pressed leaving only grounds 1, 3, 4 and 5 to consider.

26    As identified above, the Tribunal affirmed AMP’s rejection of the claim on both the first and second limbs of the TPD definition. Therefore, to succeed in the appeal the applicant has to succeed on both limbs. That is to say, it will not avail the applicant to show legal error by the Tribunal on only one of the limbs as they are cumulative requirements – the applicant has to satisfy both limbs.

27    The applicant submits that she need only succeed on one ground of appeal in order for the appeal to succeed because the decision of the Tribunal was one holistic decision such that if error was found in respect of one limb of the TPD definition then that would infect the decision as a whole. I do not accept that submission. The reasons of the Tribunal are very clear in treating each limb independently and cumulatively.

28    As will be seen, ground 1 is addressed at the first limb and each of the other grounds is addressed at the second limb. Therefore, to succeed in the appeal the applicant must succeed on ground 1 and on at least one of the other grounds.

29    Before turning to each ground individually, it is convenient to identify relevant principles governing the approach of the Court in an appeal such as this.

The nature of the appeal

30    As indicated, this appeal is brought under s 46(1) of the Act. That provision enables a party to appeal to this Court, “on a question of law”, from a determination of the Tribunal.

31    In terms of s 46(3) of the Act, the court is to hear and determine the appeal and “may make such order as it thinks appropriate”. In terms of s 46(4), such orders include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the court.

32    The limitation of the appeal to questions of law directs attention to the role of the Tribunal and what it was required to do under the Act.

33    In terms of s 37(3) of the Act, on reviewing the decision of the insurer the Tribunal had to make a determination in writing affirming the decision, remitting the matter, varying the decision or setting aside the decision and substituting its own decision for the decision so set aside. In terms of s 37(6), the Tribunal was obliged to affirm the decision if it was satisfied that the decision, in its operation in relation to the applicant, was “fair and reasonable in the circumstances.”

34    The Tribunal’s task was to put itself “in the shoes” of the insurer and review the decision of the insurer as to whether it was unfair or unreasonable and to make a determination under s 37(3) of the Act in the light of that consideration: Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [21] and [24] per Allsop J; AIA Australia Ltd v Lancaster [2017] FCA 962 at [32]-[33] per Allsop CJ.

35    The Tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the insurer. Rather, it is to form a view, from the perspective of the insurer, as to whether the decision of the insurer was unfair or unreasonable (recognising the overriding framework given by the governing policy terms). See Crocker at [31]; Lancaster at [32]-[33].

36    In Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472 is was observed (at [67]) that in an appeal such as this the court is guided by the well-accepted proposition that administrative decisions should be read as a whole and “without an eye keenly attuned to the perception of error”. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 and Samaras v Australian Retirement Fund Pty Ltd [2007] FCA 1323 at [21] per Gordon J.

37    It was further observed in Edington (also at [67]) that that proposition is particularly apposite in such an appeal because the Tribunal’s determination as to the fairness and reasonableness of the decision under review by it inevitably involves a strong evaluative component that is essentially a matter for the Tribunal. The determination is a value judgement of the insurer’s decision which itself involves elements of fact, degree and opinion on which different minds can legitimately differ: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852; 99 FCR 562 at [33] per Black CJ, Emmett and Hely JJ; Crocker at [29].

Ground 1: construction of the first limb of the TPD definition

38    Ground 1 is put as follows in the notice of appeal:

The Tribunal erred in law in interpreting the definition of “Total and permanent disablement’ in the relevant insurance policy and, in particular, that the first limb could not be satisfied by the Complainant demonstrating that she had suffered an injury or sickness that stopped her working in her then present occupation continuously for a period of 6 months (paragraph 43 of the Reasons for Determination).

39    Putting the matter slightly differently in written submissions, the applicant submits that the word “any” in this context means “one or some but no matter which” with the effect that the first limb is satisfied if the applicant demonstrates that she is stopped from working in a particular business, occupation or regular duties. The error of the Tribunal is said to be to have in effect replaced the word “any” with “all”. The applicant contends that in this context “any” means “a”.

40    The applicant submits that for her to comply with the Tribunal’s definition would require her to demonstrate that she was rendered completely unemployable for a period of six months before facing the second limb of the definition, which limits such incapacity to engage in business, occupation or regular duties as only to that which the applicant is qualified for by education, training and experience. She submits that such a definition would be absurd in the context of the cover provided by the policy.

41    The applicant places particular emphasis on the use of the words “stops … working” in the first limb of the definition. She submits that the use of the present tense indicates that what is being referred to as having been stopped is what she was doing immediately prior to the intervening injury, i.e. the work or job that she was then engaged in. She submits that the proper interpretation is not that that injury was then erected as a barrier preventing her from engaging in something different, alternative or new.

42    The questions concerning whether the Tribunal misconstrued the terms of the policy and made a determination contrary to those terms amount to questions of law in the sense referred to in s 46(1) of the Act: Lancaster at [31].

43    There was no dispute that the policy should be given a businesslike interpretation, paying attention to the language used by the parties, the commercial circumstances which the document addresses and the objects which it was intended to secure: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579 at [22] per Gleeson CJ; Australian Casualty Co Limited v Federico [1986] HCA 32; 160 CLR 513 at 520-521 per Gibbs CJ.

44    As is apparent from the terms of the policy quoted at [14] above, the policy provides for “any occupation” and “own occupation” cover. The schedule to the policy determines which is to apply in any particular case. In this case, the schedule determines that the “any occupation” cover applies. The description of the relevant TPD cover being in respect of “any occupation” serves to support an interpretation that benefits will be paid if, relevantly, the insured is prevented from working in “any” occupation rather than in “an” or her own occupation.

45    In Hannover Life Re of Australasia Ltd v Colella [2014] VSCA 205 the relevant TPD definition (at [14]) was that the person suffers total and permanent disablement if they:

are unable to do any work as a result of injury or illness for 6 consecutive months and at the end of the 6 months they continue to be so disabled that he or she is in our opinion unable to resume their previous occupation at any time in the future and will be unable at any time in the future to perform any Other Occupation, or

…

[emphasis added]

46    It will be seen that the italicised wording is very close to the wording in the present policy, and in particular the use of the word “any” is the same. The trial judge in Colella held that the word “any” should be given its usual meaning and that the phrase “unable to do any work as a result of injury” means being unable to do “a job reasonably available, either on a full-time or part-time basis, for which the insured has a realistic capacity by reason of physical ability, intellectual capacity or education and training”: [20]-[21]. Save in respect of the requirement that the job be reasonably available, the Court of Appeal upheld this interpretation: [1] per Ashley JA, [2] and [5] per Beach JA and [30]-[31], [34] per Garde AJA.

47    It was held that the word “any” should be given its usual meaning and that the expression “unable to do any work” is concerned with the capacity of the person to perform remunerative work of the kind for which the person is otherwise suited: [30]. The TPD definition is concerned with the capacity of an insured person to perform work in an occupation or remunerative employment: [34].

48    The applicant submits that the use of the word “unable” in the policy in Colella in contrast to the use of the word “stops” in the present case is a critical distinction, and that the interpretation placed on the policy by the Victorian Court of Appeal in that case should therefore not be adopted in this case.

49    I am not convinced that the distinction is material. It seems to me that a businesslike approach to interpretation of the policy requires that “stops” is given a meaning synonymous with “prevents”, i.e. by reason of the injury she is prevented from working in any business etc. That is the same as being unable to work in any business etc.

50    The point of the waiting period is not that the insured should have been prevented from doing the very job that she was doing immediately before the injury, but that she was prevented from doing any job, either on a full-time or part-time basis, for which the insured had a realistic capacity by reason of physical ability, intellectual capacity or education and training. That qualification, which is consistent with innumerable authorities as cited in Colella, means that the absurdity that the applicant identifies does not arise; she does not need to be unable to do any work whatsoever in order to satisfy the first limb.

51    The structure of the cover is quite straightforward. Because of the injury, she must not have been able to do the relevant work during the six-month qualifying or waiting period, and then the insurer must reasonably form the opinion that she is unlikely to be able to do the relevant work for ever into the future. There can be a debate about what the relevant work is, and various formulations are used in different policies, but clearly it is not limited to the actual job that she was employed in at the time of the injury. That is the function of the “own occupation” TPD cover.

52    To adopt the applicant’s interpretation would mean that the difference between “any occupation” cover and “own occupation” cover would be substantially narrowed – the only material difference with respect to the first limb would be that under “own occupation” cover there would be a qualifying requirement of 12 months employment by the particular employer that arises from the definition of “own occupation”.

53    But be that all as it may, there is no need for me to reach a concluded view on the interpretation question. That is because even on the applicant’s interpretation of the policy she must fail on the facts. That arises from the findings of the Tribunal, at paragraph [44] of its reasons, as follows:

The Tribunal agrees with the Insurer that there was ‘no evidence to suggest [the Complainant] suffered from a functionally impairing condition that would have precluded her from being able to perform her usual occupation or a suitable alternative employment option.’ Therefore, the Tribunal finds that the Complainant did not satisfy the first limb of the TPD definition.

54    On those factual findings, the applicant was not “precluded” (i.e. stopped) from being able to perform “her usual occupation” continuously for the six-month waiting period. Thus, on her interpretation she must in any event fail to satisfy the requirement of the first limb.

55    The applicant seeks to avoid this outcome by submitting that it was an error of law for the Tribunal to conclude that there was “no evidence” to suggest that her disability precluded her from being able to perform her usual occupation. The principal evidence that she points to in that regard is the fact that her employer “terminated her employment on the grounds that [she] was unable to fulfil the inherent requirements of the job on a full-time basis”, as cited by the Tribunal at paragraph [12] of its reasons.

56    That submission suffers from two difficulties. First, the Tribunal recorded the applicant’s employer’s stated reason for terminating her employment. It did not itself make a finding that at that time she was unable to fulfil the inherent requirements of the job on a full-time basis. Secondly, even if there was some evidence to support such a finding, there was certainly ample evidence to support the Tribunal’s effective finding she did not suffer from a functionally impairing condition that would have precluded her from being able to perform her usual occupation or a suitable alternative employment option. The statement that there was “no evidence” to suggest the opposite finding is rather to be understood as saying that “on the evidence” the opposite finding is not supported.

57    Insofar as the Tribunal’s finding that the applicant was able to work during the six-month waiting period is concerned, and only by way of example, a WorkCover medical certificate signed by the applicant’s nominated treating doctor and by the applicant on 7 June 2010 recorded her as being “fit for suitable duties from 07/06/10-07/07/10” for eight hours a day, five days a week. The recorded restrictions on her capabilities were limited to “no prolonged walking, not over ½ an hour” and “no prolonged standing over ½ an hour”. That was during the relevant six-month period, and it is not suggested that those restrictions would have prevented her fulfilling her duties as a call centre operator.

58    A complaint of an error of law on the basis that there was no evidence to support the Tribunal’s finding would accordingly fail.

59    In the circumstances, ground 1 of the appeal fails.

60    Therefore, and for the reasons identified at [26]-[28] above, the appeal must fail. I will nevertheless briefly consider the remaining grounds in case they should become relevant.

Ground 3: “alternative duties” not duties for which the applicant was reasonably qualified

61    Ground 3 is put as follows in the notice of appeal:

The Tribunal erred in law determining that the “alternative duties” for which it was judged fit by her treating practitioners were duties for which the complainant was “reasonably qualified by education training or experience” as defined in the relevant insurance policy (paragraph 51 of the Reasons for Determination).

62    Paragraph [51] of the Tribunal’s reasons, which is referred to in this ground, dealing with whether the applicant satisfies the second limb of the definition of TPD, is as follows:

In any event, the medical evidence suggests that although the Complainant suffered a significant injury to the right ankle which subsequently was slow to settle and caused some degree of disability regarding pre-injury duties up to and throughout 2010, the medical certificate suggest that she was judged by her treating practitioners to be fit for alternative duties of 15 hours per week up to at least 30 December 2012.

63    The applicant’s contention appears to be that the Tribunal’s finding that the applicant was able to perform “alternative duties of 15 hours per week up to at least 30 December 2012”, which was for a period of more than two years after the assessment date, and on that basis to find that the applicant had not satisfied the second limb of the TPD definition, was to misconstrue or misapply the second limb of the definition. That is on the basis that such “alternative duties” are not in a job for which she is “reasonably qualified by education, training or experience”.

64    That is to say, the contention appears to be that an error was made by the Tribunal in applying the facts as found to the second limb of the definition.

65    The applicant’s contention appears to overlook paragraph [52] of the Tribunal’s reasons which specifically found that “the three identified employment options in the ECA [i.e. Earning Capacity Assessment] report fall within the Complainant’s education, training or experience.”

66    So long as that factual finding remains, there can be no complaint with the conclusion that the applicant’s fitness for “alternative duties”, which included the three identified employment options, meant that it was fair and reasonable for the insurer to conclude that she was not prevented from being able to do work for which she is “reasonably qualified by education, training or experience”. That is to say, the applicant failed to satisfy the second limb.

67    As will be seen, the applicant’s appeal ground 4 seeks to challenge the relevant finding with regard to “the three identified employment options.”

68    The applicant’s remaining submissions in relation to ground 3 seek in effect to challenge the Tribunal’s factual findings. Such challenges are not within the scope of the appeal under s 46(1) of the Act and no error of law is articulated.

69    Appeal ground 3 accordingly fails.

Ground 4: “three identified employment options” not work for which the applicant was reasonably qualified

70    Ground 4 is put as follows in the notice of appeal:

The Tribunal erred in law determining that the “three identified employment options” (paragraph 52 of the reasons for determination) were ones for which the Complainant was “reasonably qualified by education training or experience” as defined by the relevant insurance policy as the experts applied a “transferable skills” test rather than that required by law of identifying from the Complaint’s vocational history, the occupation or occupation for which the complainant has been prepared by virtue of her vocational history. (sic)

71    As indicated, in paragraph [52] of its reasons the Tribunal concluded on the basis of an Earning Capacity Assessment (ECA) report that there are three identified suitable employment options which fall within the applicant’s education, training or experience. In paragraph [53] of its reasons, the Tribunal concluded that at the assessment date the applicant “retained a part-time capacity for work, for which she was reasonably qualified by education, training or experience.”

72    The applicant submits that the authors of the ECA report, and then the Tribunal in turn by relying on that report, applied the incorrect test by referring to “appropriate transferable skills”. The applicant refers to the ECA report where it is stated that “the jobs considered to be suitable duties for the Worker to perform” were identified with reference to s 43A (since repealed) of the Workers Compensation Act 1987 (NSW) and not with reference to the requirements of the policy, namely “work in any business, occupation or regular duties … for which … she is reasonably qualified by education, training or experience.”

73    In that regard, the applicant relies on Bonovice v United Super Pty Ltd [2014] NSWSC 1470 at [81] and Jones v United Super Pty Ltd [2016] NSWSC 1551 at [77] (upheld in Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233). Both those references deal with policy wording with regard to whether the insured is “reasonably fitted by education, training or experience…”. In the present case a different word is used, namely “qualified”. In the circumstances, the particular linguistic treatment of “fitted” on which the applicant particularly relies, including with reference to dictionary meanings of that word, is inapposite.

74    The ECA report deals explicitly with the applicant’s skills acquired through education and training as well as skills acquired on the job. It was on the basis of the identification of those skills that the authors of the report identified three suitable employment options for the applicant, which the Tribunal in turn concluded were options for which the applicant was “reasonably qualified by education, training or experience”. The three options, namely call or contact centre operator, clerical and administrative worker and customer service manager, are wholly congruent with the applicant’s own vocational history which is set out in detail in the ECA report.

75    There is nothing in the approach taken by the Tribunal in accepting the findings in the ECA report with regard to suitable employment which is contrary to what was required by the policy wording.

76    It is pertinent that the ECA report was based on an assessment conducted in March 2011, which is to say some 13 months after the applicant ceased employment and some seven months after the assessment date. The report records, amongst other things, the following:

(1)    The applicant reported, and the specialist assessing medical consultant agreed, that the applicant was able to sit for up to 60 minutes before it became difficult for her, that she was able to stand for “30 minutes reasonably” and could stand for longer if she had to, and that if she was able to either sit or stand as she needed, she could continue all day without needing any form of rest.

(2)    Her then current medical certificate was valid until 30 April 2011 and was for “normal hours, lifting not heavy, walking not prolonged, travelling as before, keying not repetitive.”

(3)    The applicant stated that she had the skills and fitness to be able to undertake her previous duties.

(4)    The applicant reported that if she was uninjured she “would be able to undertake any job.”

77    There were also WorkCover medical certificates before the Tribunal indicating that the applicant’s fitness for suitable duties on an eight hours a day, five days a week basis continued until at least 3 December 2010.

78    In the circumstances, it was well open to the Tribunal to find, as it did, that AMP’s determination that the applicant had not fulfilled the second limb of the TPD definition was fair and reasonable. No error of law in the approach of the Tribunal is established.

79    Appeal ground 4 therefore fails.

Ground 5: failing to consider actual likelihood of being able to find work

80    Ground 5 is put as follows in the notice of appeal:

The Tribunal erred in law in failing when interpreting the second limb of definition of Total and Permanent Disablement in the definition of the relevant policy and, in particular, the words “unlikely ever to be able to work” to take into account the actual likelihood of a person with the injuries and sickness of the applicant obtaining such work. (sic)

81    The applicant submits that the Tribunal failed to consider that as at the date of assessment the restrictions on the capacity of the applicant to work would have impeded the likelihood of her ever working again in a job for which she was qualified by her education, training and experience.

82    No error of law is established by this ground. The Tribunal made findings of fact with regard to the applicant’s capacity for work for which she is reasonably qualified by reason of her education, training or experience after having identified relevant restrictions on her ability to work. The Tribunal noted, correctly, that the second limb of the TPD definition expressly states that it is immaterial whether the work in the business, occupation or regular duties is full-time, part-time or on any other basis.

83    It is not suggested that there was no evidence to support the Tribunal’s findings. To the contrary, the authors of the ECA report undertook a labour market analysis that included considering work opportunities within geographic range of the applicant’s capabilities for driving and using public transport and concluded that “the reasonably accessible labour market area described and profiled above is likely to include the Work Options … identified for the Worker”. The fact that the applicant has in fact subsequently found it difficult to find work is not to the point. The relevant cover is insurance against total and permanent disablement, not against the unavailability of work for the insured. See Colella at [34].

84    Ground 5 must also fail.

Conclusion

85    For the reasons given above, the applicant’s appeal against the determination of the Tribunal falls to be dismissed.

86    The submitting notice of the first respondent states that it wishes to be heard on any question of costs, although its written submissions do not ask for costs. AMP’s written submissions also do not ask for costs, and no oral submissions were addressed to me about costs.

87    It may be that the respondents do not intend to seek costs. However, since costs have not been addressed I give the parties leave to make any application for costs by way of filing short submissions within 14 days of my orders.

Associate:

Dated:    4 May 2020