JUHASZ v MEDICAL LIFE ASSURANCE SOCIETY LTD [2017] NZHC 2866

JUHASZ v MEDICAL LIFE ASSURANCE SOCIETY LTD [2017] NZHC 2866 [23 November 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2016-485-000760[2017] NZHC 2866BETWEEN EVA SUSAN JUHASZPlaintiffAND EVA JUHASZ LIMITEDSecond PlaintiffAND MEDICAL LIFE ASSURANCESOCIETY LIMITEDDefendantHearing: 16, 17, 18, 19, 20 October 2017Appearances: C Meechan QC and W D Buckham for PlaintiffsE Horner and L Tidey for DefendantJudgment: 23 November 2017Reissued: 14 February 2018Effective dateof Judgment:23 November 2017JUDGMENT OF CHURCHMAN JPursuant to r 11.5 of the High Court Rules I directthe delivery time of this judgment is3:30 pm on 23 November 2017Introduction [1]Preliminary issue [7]Facts [8]Return to work [22]On-call work [37]ESC contracting earnings [45]The July 2015 report [59]The evidence at hearing [109]Dr Juhasz's evidence [110]Relationship with Dr Kenny [113]Amount of hours communicated to Dr Kenny [124]Dr Juhasz's perceived hours [132]Evidence for MAS [157]Dr Kenny's evidence [167]Medical and hospital witnesses [180]The financial evidence [197]The submissions [218]Counterclaim [242]Analysis [251](a) The correct questions under the policy [257]Incapable of working for more than 40 hours per week [264]"Actual work" [266]Dr Juhasz's estimated work hours incomplete [279]Claimed underperformance [282]Capacity [287]Weekly income calculations [299](b) Did the expert have all the relevant information? [310]Challenges to relevant information [327](c) Did MAS act in good faith in having due regard for the interests ofDr Juhasz? [336](d) A decision reasonably open to it [350]The counterclaim [353]Costs [374]Introduction[1] The first plaintiff, Dr Eva Juhasz, is a general surgeon with sub-specialties inbreast and colorectal surgery.[2] At the times relevant to this dispute, she was an employee of and (through thesecond plaintiff Eva Juhasz Limited) a contractor to the Waitemata District HealthBoard (WDHB).[3] The second plaintiff held a policy of income security insurance (the policy)with the defendant, Medical Life Assurance Society Limited (MAS). The firstplaintiff was the Insured Person under the policy.[4] The policy provided loss of income insurance to cover circumstances whenthe Insured Person suffers either Total or Partial Disablement.[5] The principal issue in this case is for what period, including up to the presentday, Dr Juhasz fell within the definition of "Partially Disabled" and whether, in2015, she ceased to meet the policy definition, giving MAS the right to cease payingthe benefits under the policy.[6] There is also a counterclaim whereby MAS is seeking to recover what it saysare overpayments relating to a period in 2015 during which Dr Juhasz received aPartial Disablement benefit and MAS says that she did not meet the criteria set out inthe policy.Preliminary issue[7] By way of minute of 9 October 2017 I raised with counsel the fact that thesolicitors for the defendant in this matter had in the past undertaken someconveyancing work for me and by way of a minute of 10 October 2017 I advisedthat, when at the bar, I had occasionally received instructions from that firm. Neitherparty took any issue with me presiding over this matter.Facts[8] On 15 December 2010 Dr Juhasz underwent what should have been astraightforward surgical procedure, a metatarsal osteotomy or, in simpler language,surgery for the removal of bunions from her feet.[9] Dr Juhasz suffered post-surgical complications in relation to the surgery onher left foot. She began to experience persistent and increasingly severe pain.[10] Prior to the surgery, in addition to her work with the WDHB, Dr Juhasz hadconducted a significant private practice through Waitemata Specialist Centre Ltd andWaitemata Endoscopy Ltd. Pre-disability, she worked some 50−60 hours per weekin combined public and private practices.1[11] In both June and December 2011 Dr Juhasz underwent further surgery and,following her remedial bone graft surgery on 20 December 2011, she made a claimunder the policy. This date was treated as the commencement of the 90-day waitperiod before eligibility for payments under the policy commenced.[12] On 18 June 2012 Dr Juhasz was no longer able to work as a general surgeonand ceased work completely.[13] On 27 June 2012 MAS paid the first Total Disablement benefit under thepolicy for the period 19 March 2012 (being the date that the 90-day wait period hadexpired) to 1 April 2012.[14] The plaintiff initially also received payments from WDHB by way of sickleave and payments from ACC.2[15] MAS assessed Dr Juhasz's annual Pre-disability Income for the purpose ofthe policy as $677,688, which produced a weekly pre-disability income figure of$13,032.46.3 The Pre-Disability Income was subject to an inflation adjustment forthe purpose of benefit calculation and by April 2015 was deemed to be $694,738.041 Agreed Bundle of Documents [ABD] vol 4 at 1364.2 Dr Juhasz's brief of evidence, August 2017 at [4.1].3 ABD vol 4 at 1384.with a weekly figure of $13,360.35.4 For the periods between 19 March 2012 and31 May 2015 MAS paid Dr Juhasz the total sum of $828,307.77 in Total and PartialDisability payments.[16] After some 18 months in receipt of a Total Disability payment from MAS,Dr Juhasz began to return to work on a graduated basis.[17] On 14 November 2012 the WDHB instructed Dr Courtenay Kenny,(Dr Kenny), a Specialist Occupational Physician to assess Dr Juhasz's medicalfitness for work.[18] Dr Kenny practices in the public sector as an employee of WDHB and in theprivate sector through his consulting company, Occupational Medicine (North Shore)Limited.[19] Dr Kenny first saw Dr Juhasz in a clinical capacity on 22 January 2013following the referral from WDHB surgical services management team. He wasasked to provide a specialist assessment of Dr Juhasz's medical fitness for work andto assist in developing a plan leading towards normal work hours and duties.[20] Dr Kenny saw Dr Juhasz on six subsequent occasions at the referral of theWDHB: 19 March 2013; 6 August 2013; 17 September 2013; 11 October 2013;25 March 2014 and 11 July 2014.[21] On the referral of MAS Dr Kenny met with Dr Juhasz on 29 June 2015 inrelation to Dr Juhasz's current working capacity and that meeting produced a reportthat has become central to these proceedings (the July 2015 report).Return to work[22] On 8 July 2013 Dr Juhasz commenced a return to work programme.54 At 1425.5 The details of the return to work plan are set out in ABD vol 4 at 1106−1116.[23] Initially Dr Juhasz worked alongside colleagues in the Department of GeneralSurgery at WDHB such as Susan Jerred, Matt Soop and Mike Holme-Moir andgradually increased her working hours from 12 to 28 hours per week over a ten-weekperiod to September 2013.[24] With the gradual increase in work hours came a transition from the TotalDisability benefit to the Partial Disability benefit and on 19 December 2013 MASpaid Dr Juhasz $97,362.72 by way of Partial Disability benefit covering the period of29 July − 1 December 2013.[25] As of September 2013 Dr Juhasz worked a regular roster that averaged28 hours per week.6 This rostered 28 hours did not involve any on-call work,Elective Surgery Centre work or work for Breast Screen Aotearoa.[26] Doctor Juhasz's general surgery role underwent a job-size review on10 April 2014, where her hours were agreed as comprising an average total of30.5 hours per week broken down between clinical duties of 24.5 hours per weekand non-clinical duties of 6 hours per week (the base hours, the job-sized role).7[27] Attached to the job-size review was a schedule of clinical duties specified theclinical hours,8 and a similar schedule listed non-clinical duties.9 The non-clinicalduties did not allocate any time for activities such as teaching or continuing medicaleducation (CME).[28] The WDHB pay periods were fortnightly and the certificate of earningsprovided by WDHB's payroll provider (healthAlliance) for the period 19 May 2014to 15 June 2014 recorded Dr Juhasz as being "Currently Employed, FTE .763(61 hours)". An hourly rate of $100.1918 was specified.10[29] As well as the job-sizing exercise which settled Dr Juhasz's base hours inApril 2014 Dr Juhasz entered into a separate agreement with WDHB in relation to6 ABD vol 4 at 1116.7 ABD vol 4 at 1119.8 At 1120.9 At 1122.10 ABD vol 3 at 798.the provision of surgical services as an independent contractor to the ElectiveSurgery Centre (ESC).11[30] Although the contract for ESC work is dated 8 April 2014 Dr Juhasz inevidence confirmed that the work and invoicing for it commenced in March 2014.12Although the ESC contract describes "Eva Juhasz" as the party contracting withWDHB, the actual entity that billed and was paid for the work was Eva JuhaszLimited.13 Remuneration was based on the particular procedures undertaken, with afee per surgical procedure.14[31] The surgical fee was said to cover:• all pre-operative organisation;• the surgical procedure; and• all post-operative care, including any after hours on-callrequirements during the patient's hospital stay.15[32] The ESC surgery occurred on a four-week cycle with Dr Juhasz undertakingone all-day ESC list and one half-day ESC list every four weeks.16 This equated to12.5 hours every four weeks or 3.125 hours averaged per week. No evidenceaddressed the quantum of time involved in pre or post-operative obligations, but itwould have been in addition to the time involved in undertaking the surgical lists.Compared to the $100.1918 per hour that Dr Juhasz was paid for her job-sizedgeneral surgery role, the ESC contract work was highly remunerated with Dr Juhaszestimating at the hearing that it produced an hourly return of $1,000.17[33] In addition to undertaking her base hours and the 1.5 days per four-week ESCsurgical work, Dr Juhasz also undertook a separate stream of work for WDHB11 ABD vol 4 at 1346.12 Notes of Evidence [NOE] at 30, line 24.13 NOE at 30, line 22; Juhasz BoE at [10.2]; ABD vol 4 at 1262−1308.14 The Schedule of Procedures and Rates of Remuneration is set out ABD vol 3 at 1309−1310.15 ABD vol 3 at 1347.16 Juhasz BoE at [10.2].17 NOE at 95, line 4.relating to Breast Screen Aotearoa from her return to work in July 2013. This workwas paid fortnightly and listed separately to Dr Juhasz's base salary on her payslip.[34] As at the time the job-sizing exercise was undertaken in April 2014Dr Juhasz's estimated that her Breast Screen Aotearoa commitment was probably nomore than a total of four hours in a four-week to six-week cycle.[35] In addition to undertaking the Breast Screen Aotearoa clinics there was also arelated obligation to attend a weekly Wednesday morning multi-disciplinary meeting(MDM) in relation to the breast screening clinic although Dr Juhasz indicated thatshe did not attend every week.18 If she did not attend the breast screen MDM shewas not paid for it. Payment for attending the MDM was at a fixed rate of $150.19The fee for undertaking the Breast Screen Aotearoa clinic was a flat fee of $500 perclinic.20[36] Dr Juhasz's payslip dated November 2014 confirms that the FTE base salaryhad increased to $212,000 per annum with a base hourly rate of $101.63.On-call work[37] By mid-2014 Dr Juhasz wished to return to undertaking rostered on-callwork. WDHB requested that before it would approve Dr Juhasz's returning to on-call duties she obtain clearance to do so from Dr Kenny.21[38] Doctor Kenny met with Dr Juhasz on 11 July 2014 to assess whether it wasreasonable and appropriate for her to join the on-call roster and approved the move.22However, as the on-call roster was already finalised for the remainder of 2014Dr Juhasz did not actually commence participation in the on-call roster untilFebruary 2015.18 NOE at 77, line 31.19 See ABD vol 3 at 825 for an example of a payslip relating to attendance at a breast screen MDMon Wednesday 26 November 2014.20 See, for example, ABD vol 3 at 827.21 NOE at 33, line 20. See also email from Karen Hellesoe on 19 September 2014 to Nina Burt atMAS recording that Dr Juhasz was keen to return to both being able to attend the hospital afterhours for review/reassessment of her own surgical patients if and when required, and returningto participating in the general surgical afterhours roster.22 ABD vol 4 at 1452.[39] As to why she wished to recommence the on-call obligations that she had notundertaken since becoming unwell, and at a time when she said she was not fulfillingher 30.5-hour job-sized role Dr Juhasz said:23As a surgeon in a department I believe everyone has to do their fair share ofthe bad as well as the good and on-call is seen as the bad, and I do notbelieve that anyone in our department believes that someone should beemployed there and not do the on-call, and that was the reason why I wishedto pull my weight and be back on the call roster.[40] She also said:24I wanted to be a fully functioning member of our department and to be afully functioning member of our department one really has to be on the callroster.[41] The on-call roster in the General Surgery Department at WDHB involvedbeing on-call one in four Tuesday nights from 5 pm to 8 am the next morning; andover a 72 hour period one in 14 weekends from 8.00am Friday morning to 8 amMonday morning. The on-call surgeon also covered the acute surgical theatre from8 am to 5 pm Monday–Thursday in the week after their rostered on-call weekend.25The on-call work was remunerated additionally to the base hours salary. At the timeDr Juhasz recommenced the on-call work on 2 February 2015 it attracted an annualpayment of $82,619.26 At the hourly base rate of $101.63 this would have allowedfor 812.94 hours of work annually or an average of 15.63 hours per week. On8 February 2016 as a result of an additional surgeon joining, the roster call became1:15 and the remuneration was adjusted to $77,188.27[42] The on-call remuneration was paid fortnightly in the sum of $3,177.65 withthe first payment showing in Dr Juhasz's payslip for the pay period ending8 February 2015.28 At this time Dr Juhasz's weekly pay for her base hours was$3,099.71; the fortnightly base pay being $6,199.42. Receipt of the on-callallowance was shown in the same payslip that recorded the base fortnightly pay andincreased that sum by over 50 per cent.23 NOE at 34, line 724 NOE at 34, line 27.25 Juhasz BoE at [6.5].26 ABD vol 4 at 1117.27 At 1118.28 ABD vol 3 at 847.[43] Once Dr Juhasz commenced on the on-call roster there was one change towhat she did during her base hours that made up the job-sized role. That changeoccurred one week in 14 (and as from 8 February 2016, one week in 15) when, afterthe week where she had worked the on-call weekend, her normal hours Monday–Thursday were replaced with acute theatre nine hours per day.29 On the Fridays ofsuch a week Dr Juhasz would undertake her normal Friday duties for that week andfit in whatever ward rounds were related to the previous on-call weekend intakewithin the time allocated to her normal rostered duties.30[44] Dr Juhasz informed MAS of her on-call work during a telephoneconversation on 23 February 2015. MAS's notes of that conversation recordDr Juhasz as saying:31Eva mentioned she is expecting her on-call to increase slightly this year.That would seem to be a significant understatement in relation to the assumption ofresponsibilities that attracted remuneration of $82,619 annually, or more than50 per cent of the income for her job-sized role, and in a situation where, prior tobeing cleared by Dr Kenny to participate in the on-call roster, Dr Juhasz had beenundertaking no call work at all.ESC contracting earnings[45] Dr Juhasz began receiving payments (through Eva Juhasz Limited) for theESC contract work in May 2014. The profit and loss statement for Eva JuhaszLimited for the month ended 31 July 2014 refers to receipt of payment forprofessional fees of $18,240 in May 2014 and $26,082 in July 2014.32 The profitand loss statement for Eva Juhasz Limited for the month ended 30 September 2014shows receipt of payment for professional fees in August 2014 of $14,579 andSeptember 2014 of $8,348.3329 Dr Juhasz's brief of evidence in reply, 25 September 2017 [BoE in reply] at [15].30 At [16].31 ABD vol 4 at 1419.32 ABD vol 3 at 811.33 At 810.[46] The profit and loss statement for Eva Juhasz Limited for the month ended31 January 2015 shows receipt of payment for professional fees of $34,033 inOctober 2014; $3,580 in November 2014; $14,234 in December 2014 and $14,079 inJanuary 2015.34 The same document shows year-to-date payments of professionalfees of $133,174.[47] MAS was unaware of the sums that Dr Juhasz was receiving via Eva JuhaszLimited in relation to the ESC contract work. Throughout 2014 Dr Juhasz had beenrequired to submit progress reports to MAS and those reports asked the followingquestions:5. Please provide details of any change to your daily activities duringthe reporting period including any change in work ability.6. Have you engaged in any other work, either paid or voluntary duringthe reporting period?7. Do you receive or are you entitled to receive any income from anyother source?[48] In the progress report completed by her on 4 February 2014, Dr Juhasz hadanswered "No real change" to question 5 and "No" to questions 6 and 7.35 Aftersigning the ESC contract in April Dr Juhasz provided the same answers in theprogress report dated 2 May 2014.36[49] In the progress report dated 24 June 2014 covering the period 1 April 2014 to31 May 2014 Dr Juhasz left the answer to question 5 blank.37 She ticked "Yes" toquestion 6 and added "In addition to my salary I have received payments in Mayfrom WDHB for extra contract work undertaken in April and May − $18,240 plusGST." She answered "No" to question 7.[50] In the 4 February 2014 progress report Dr Juhasz stated that her hours ofwork were "working up to 28 hours per week".38 In the subsequent 2014 progress34 At 813.35 ABD vol 2 at 495.36 At 511.37 At 526.38 At 494.reports she referred to her weekly hours of work as either being 28 or 30 hours or "aspreviously documented".[51] In the progress report dated 7 October 2014 Dr Juhasz left question 5 blankand answered "No" to questions 6 and 7.[52] On the progress report dated 3 December 2014 Dr Juhasz answered "No realchange" to question 5 and "No" to questions 6 and 7.39[53] The progress report that Dr Juhasz had submitted in June 2014 was undatedand unsigned so MAS sent it back to her with a covering letter which contained thefollowing request:40Also, can you confirm if the additional income you received from WDHBwill have been included in your taxable earnings which we will be receivingdetails from [healthAlliance]? The last certificate of earnings I received wasfor the four weeks to 18/5/14 and I have attached a copy which might help.If it was paid in addition to the earnings advised, we will revise yourentitlement for this period.[54] Dr Juhasz replied by email of Monday, 16 June 2014, the relevant passagesaying:41It looks like the additional earnings are included in the certificate ofearnings.[55] This statement was incorrect. The income from the ESC work was notincluded in the certificate of earnings received from healthAlliance and could nothave been because Dr Juhasz was invoicing the ESC work and being paid for itthrough Eva Juhasz Limited.[56] On 8 January 2015 MAS emailed healthAlliance requesting a certificate ofearnings for the four-week period 1 December 2014 to 28 December 2014, andemailed again on 15 January 2015 making a further request for this information.39 At 549.40 ABD vol 1 at 59.41 At 59.[57] On 15 January 2015 Dr Juhasz telephoned MAS to let them know that theremight have been an overpayment of her Partial Disability benefit entitlements. As aresult of that telephone call MAS emailed Sharon Cooper at Dr Juhasz's accountant,Shore Chartered Accountants, requesting details of the accounts for Eva JuhaszLimited for the 2013 and 2014 financial year and monthly management reports from1 April 2014.42 After further prompting the requested information was received byMAS on 10 February 2015.43[58] The information provided revealed an overpayment in the region of$54,546.86 for the period 1 April 2014 to 30 November 2014. Dr Juhasz agreed torepay the overpayment by way of deduction from the ongoing Partial Disablementbenefit. This meant that payments under that benefit were suspended until the$54,546.86 had been repaid.44The July 2015 report[59] By email of 26 February 2015 MAS advised Dr Juhasz that they wished herto see Dr Kenny, "for MAS's benefit".45 The email indicated that the purpose of theproposed meeting with Dr Kenny was:46It would be a good opportunity for us to get a snapshot of where you arecurrently at and what could reasonably be expected to change, includingexploring what interventions may have a positive impact on your workcapacity.[60] Dr Juhasz replied to that email the same day with the email starting, "[t]hatall sounds fine".47[61] By email of 18 May 2015 MAS confirmed that they had arranged forDr Juhasz to see Dr Kenny on Monday, 15 June 2015 at 2.15pm.48 Dr Juhaszemailed MAS back indicating that she was operating on 15 June and enquiring if she42 ABD vol 3 at 850.43 At 849.44 NOE at 89, line 9.45 ABD vol 1 at 68.46 At 68.47 At 68.48 At 76.should organise an appointment directly with Dr Kenny.49 That email did notindicate that Dr Juhasz had any concern about seeing Dr Kenny. An appointmentwas arranged for 29 June 2015.[62] By email on 19 June 2015 Dr Juhasz, for the first time, raised an objection toDr Kenny. The relevant parts of her email to MAS said:50I was wondering if it was possible to see an alternative occ health specialistor do I need to see one employed by Waitemata DHB? I have not really everfelt completely comfortable with seeing Courtney [sic] Kenny in the past anddo wonder about the appropriateness of seeing someone who has the sameemployer.[63] By email of 23 June 2015 MAS indicated that they were unable to re-arrangean alternative Occupational Medicine assessment without there being a significantdelay in obtaining another appointment date, and that they wished to proceed withthe 29 June 2015 appointment.51[64] By letter of 23 June 2015 MAS advised Dr Kenny of the purpose of thereferral. Relevant passages stated:52At this time, we need to understand Dr Juhasz's current work capacity andwhether, with optimal treatment and rehabilitation, Dr Juhasz could increaseher capacity to consistently work beyond 40 hours per week and how MAScould provide support in this area ...[Include] your opinion as to whether Dr Juhasz could increase her currentwork capacity and to what degree. If you consider she is currently preventedfrom increasing her capacity to work as a result of a medical condition,please provide details about this including limitations and/or restrictions.[65] Dr Juhasz saw Dr Kenny on 29 June 2015.[66] Dr Kenny's report dated 27 July 2015 was received at MAS on7 August 2015.5349 At 76.50 At 91.51 ABD vol 1 at 99.52 At 97.53 ABD vol 2 at 591.[67] The July 2015 report summarised Dr Juhasz's medical history and noted thatshe:54... has always had a very strong and immutable belief that her foot pain is adirect result of infection in the left foot (soft-tissue structures rather thanbone or joint), and more recently throughout the soft tissue of her left lowerlimb more generally, but no evidence has been identified in recent years tosupport ongoing soft-tissue, bone or joint infection.[68] Dr Juhasz's presentation was noted to be:55... entirely consistent with a disorder of central neural sensitisation, bestcategorised as a central pain disorder, with symptoms experiencedthroughout the left lower limb.[69] In terms of Dr Juhasz's capacity to work, the July report concluded that, sincethe implementation of the graduated return to work programme in July 2013:56... Dr Juhasz has progressed from performing limited surgical tasks on a part-time basis, up to working approximately 30-34 hours per week (and up to 8-10 hours on two days per week) in April 2014 through to her present level ofsurgical operating and clinical work (comprising at least 30 hours per week)and with a further approximately 10 hours per week of DHB contract work(ESC), work with Breast Screen Aotearoa, and participation in the after-hours on-call roster for Waitemata DHB.[70] The July report also concluded:57While Dr Juhasz continues to report significant, constant and widespread leftlower limb pain and other sensory disturbances, she agrees that she iscontinuing to perform all of her normal expected operative and clinic dutiesat work, she advises that there are no reports of any errors, omissions orother impairment in the performance of her professional duties, and I am notaware of any concerns from her management or from clinical colleaguesabout her professional competence, reliability and attendance.[71] In a document appended to the July 2015 report intituled "BackgroundClinical Information" Dr Kenny summarised what he said Dr Juhasz had told himabout the work she was undertaking and stated that:58Dr Juhasz states that averaged over the full period of the surgical roster(14 weeks), she believes that she works approximately 42 hours per week.54 At 593A.55 At 594.56 ABD vol 2 at 594.57 At 594.58 At 596.[72] On 23 September 2015 MAS emailed Dr Juhasz indicating MAS hadreceived Dr Kenny's report and wishing to have a chat with her about it beforesending her a copy.59[73] By email sent from her iPhone on 24 September 2015 Dr Juhasz indicatedthat she was away until 11 October 2015.60[74] By email of 28 September 2015 to Dr Juhasz MAS stated that:61Information in the report regarding the number of hours you are working perweek indicates that support under the policy has come to an end and was[sic] I wanting to go through that with you. I feel that leaving this for afurther two weeks while you are away would not be ideal so I have attacheda copy of the report.The email invited Dr Juhasz to telephone to discuss the report.[75] Dr Juhasz replied on 28 September 2015 in an email which included thecomment:62... I would be nervous about coming off cover in case I find myself unable towork in the near future.[76] By email of 30 September 2015 to MAS Dr Juhasz said:63I have read Courtenay Kenny's report and have no issue with the substanceof the report. There are some inaccuracies with the hours worked which Iwould like to talk to you about.[77] By email of 1 October 2015 MAS told Dr Juhasz:64With regards to the hours and why this impacts your claim, your policyprovides a partial disability benefit up until the earlier of:• Your Weekly Income is more than 75 per cent of your Pre-DisabilityIncome, or• You are capable of working for more than 40 hours per week.59 ABD vol 1 at 120.60 At 120.61 ABD vol 1 at 121.62 At 121.63 At 125.64 At 126.The email further said:... Based on the hours the report indicates you are working, the support underthe policy has reached its end point.[78] Dr Juhasz replied to that email the same day, the relevant parts of the emailstating:65As mentioned before I am not comfortable with Courtenay Kenny being theOcc health physician involved as he also works for WDHB.My hours are quite different than what he has documented (I am not surewhy as I went over my schedule with him in detail) and I would appreciatethe opportunity to discuss this in confidence with you when I am back.The email did not indicate why it was necessary to have the discussions about thehours of work "in confidence".[79] By email of 17 October 2015 Dr Juhasz wrote to MAS saying that she had"... a flexible contract for up to 30 hours per week as well as ... 12.5 hours at the ESCover a four-week period". The impression that the contract was flexible as to thenumber of hours worked is incorrect. The flexibility was around how the hours wereworked. The role was job-sized for a fixed number of hours and that number was30 hours per week.[80] Dr Juhasz also referred to her on-call commitments and her Breast ScreenAotearoa obligations and said that in an acute theatre week (1:14) she would bedoing "a total of 39 hours" (0800–1700 Mon-Thurs and 0900–1200 on Fri)". Shesaid these duties averaged 23 hours a week and were:66... less than what I should be doing but the contract was negotiated with theunderstanding that I would build up to a higher level over time withouthaving to renegotiate my contract every six months.[81] MAS responded to the email of 17 October 2015 with an email to Dr Juhaszon 12 November 2015.67 That email indicated that MAS's assessment that the claimwas at an end was based on the information obtained from Dr Kenny's July report. It65 At 126.66 ABD vol 1 at 130 and 131.67 At 132.noted that Dr Kenny had based his opinion on Dr Juhasz's capacity to work on thestated "average 42 hours per week". It also noted that:In saying that, our claim assessment is based on what your capacity to workis assessed as and not what hours you are paid to work.[82] The letter indicated that if Dr Juhasz believed that Dr Kenny had incorrectlydocumented the work commitments and hours stated she should let MAS know, andit indicated that in that situation MAS would need to refer Dr Juhasz's email toDr Kenny for his review and comment. The letter further indicated that:68If the work commitments and hours were not accurately reported by you toDr Kenny, you will need to consult with him at your own cost, to discuss thedifference.[83] The letter also indicated that if, as a result of Dr Juhasz consulting again withDr Kenny, he amended his report, MAS would then:... need independent verification of the hours you have indicated you areactually working and perhaps your surgical manager could assist with this?[84] The letter concluded by noting that if the content in Dr Kenny's July reportneeded to be corrected then "it needs to be corrected at source". The email alsoindicated that MAS was happy to discuss this matter further by telephone withDr Juhasz.[85] Dr Juhasz sent an email to MAS on 12 November 2015 indicating that shewas not "happy with Courtenay Kenny being involved as he also works at the DHB [and had] ... incorrectly stated my work commitments and [that she] would likethis to be reviewed."69 Dr Juhasz finished her email by saying that she preferred tohave a occupational health specialist other than Dr Kenny involved.[86] On 13 November 2015 Dr Juhasz emailed MAS.70 That email contained thefollowing comments:7168 ABD vol 1 at 132.69 At 134.70 At 139.71 At 139.I have not got a good relationship with [Dr Kenny] because of the way hehas dealt with me in the past....I told him all the details of what I was doing on a day to day basis andoffered to write them down. He declined this....I told him I was contracted to 30 hours per week but did not point out to himthat I was not fulfilling my contract....I would be happy to pay for an occ health specialist of your choice notaffiliated to the DHB....If I manage to get this problem resolved I would be able to fulfil my contracthours and the plan then would be to do an additional session in private doingscopes. If I can do this it will take me over the 40 hours per week.Currently I am physically unable to do this.[87] MAS replied by email on 13 November 2015 indicating that Ms Unuka ofMAS would need to speak to her manager before reverting to Dr Juhasz.[88] On 7 December 2015 Ms Unuka emailed Dr Juhasz. The email addressedDr Juhasz's concerns that Dr Kenny might use information gained in his assessmentof her to inform her employer of her details. The email referred to the obligationsunder the Privacy Act 1993 and Health Information Privacy Code 1994 andDr Kenny's position that the information in his report could only be used, stored ordisclosed in accordance with those statutory obligations. The email also noted "[o]urassessment considers the hours you are working as well as what your capacity is towork." It went on to say:72We are unable to ignore Dr Kenny's report and as previously advised, we arehappy to consider further information if you seek correction of the parts youconsider to be incorrect with Dr Kenny directly. Your email of 13 Novmentioned that your assessment of 33-36 hours per week is the averagebased on the duties to fulfil your contract so this would be something youwould need to raise with Dr Kenny and we are more than happy to look atthis.72 At 153.[89] Dr Juhasz replied to that email on 8 December 2015. She repeated herobjection to Dr Kenny and said:He has not treated me very well in the past and I am happy to give you moredetails if you wish but would like them to remain confidential.The email also claimed that Dr Kenny was:73... responsible for a major breach in privacy when I saw him previously.Regardless of what he says about privacy in his report I am unable to trusthim as one should be able to when seeing a doctor.[90] In the email Dr Juhasz specifically refused the invitation to discuss withDr Kenny what she said were the errors in his report. Dr Juhasz said:74Because of the way he put his questions to me, his report is flawed and Ireally do not wish to have any further contact with him. I certainly do notwish to contact him and argue about the content of his report.[91] On 11 December 2015 Ms Unuka acknowledged receipt of the email of11 December 2015 and indicated that she was working through with her manager theissues raised by Dr Juhasz.[92] Dr Juhasz replied to Ms Unuka by email on 16 December 2015. That emailreferred to a difference of opinion between Dr Juhasz and some of her medicaladvisers as to the nature of her health condition. It said:75Unfortunately the ID doctors have dug a deep hole for themselves and thereis no way they can admit a mistake so continue to refuse to treat me....Courtenay Kenny has previously ridiculed the possibility of infection so I amsure that he also cannot change his opinion without losing face. I have laid acomplaint with the HDC about the appalling way I have been treated. ...What I was hoping to keep confidential is the shenanigans that went on thelast time I was involved with Courtenay Kenny. He colluded with one of thesurgeons at NSH to try to force my resignation. Given the situation I think itis unreasonable that you are accepting Courtenay Kenny's flawed report tobase your decision.73 At 153.74 At 153.75 At 159.[93] Ms Unuka emailed a substantive response to her on 24 December 2015.76This letter set out in detail MAS's position. Relevant paragraphs include:77It was Dr Kenny's opinion that you were fit to continue working at least tothe level as identified in your meeting with him − that is surgical practiceincluding surgical operating, out-patient clinic sessions, on-call after-hoursresponsibilities and your involvement with clinical meetings and teaching −this work was stated to average 42 hours per week across a 14-week surgicalroster.[94] The letter noted the policy requirements relating to meeting the classificationof Partial Disablement. These included:78(a) Earning a Weekly Income less than 75 per cent of your Pre-Disability Income; and(b) Incapable of working more than 40 hours per week.The letter further advised:79In November, MAS advised you that as the hours outlined in the report weresignificantly different to the statement you provided, the recourse to addressthis was for either MAS or you to discuss this further with Dr Kenny and ifany amendments were made subsequent to this, MAS was happy to considerthem.You remained reluctant to discuss this further with Dr Kenny and so that wecould consider whether the hours worked had been incorrectly recorded byDr Kenny, we contacted him in December and asked that he review hisnotes. Dr Kenny has reviewed the contemporaneous notes and hasconfirmed that the information was taken from you and that this wasdiscussed to the level of your daily activity.[95] The letter concluded:80On this basis, our position remains unchanged in that the report indicates youhave a capacity to work more than 40 hours per week.[96] Dr Juhasz wrote to Ms Unuka on 18 January 2016. Her email contained thestatement:8176 At 167 for substantive response; see also ABD vol 1 at 166 for cover email.77 At 167.78 At 168.79 At 168.80 At 168.81 At 170.As I have said before Courtenay Kenny did not specifically go into thesessions or hours worked. His report is flawed. It is also inappropriate touse him for the basis of your decisions for the reasons I have outlinedpreviously.[97] Neither sides' position changed. Dr Juhasz remained unwilling to talkdirectly to Dr Kenny about what was said to be factual errors in his report and, afterclarifying with Dr Kenny that he still stood by his report, MAS continued to rely onit.[98] On 11 February 2016 MAS emailed Dr Juhasz a detailed response to herletter of 18 January. The letter noted that some of the information provided byDr Juhasz had changed. It said:82MAS note the presence of significant inconsistencies in the correspondencewe have received during the course of assessing your claim.[99] The letter re-stated MAS's position about the need for Dr Juhasz to engagedirectly with Dr Kenny if she believed that he had made a factual error in hisreport.83[100] On 4 March 2016 Dr Juhasz emailed MAS a copy of an email fromKaren Hellesoe, Operations Manager General Surgery and ICU−HDU at WDHB,which said:84This is to confirm that Dr Eva Juhasz is contracted to work:• 30.5 hours per week (on average over four weeks) at North ShoreHospital WDHB. This includes 2.5 hours per week which may ormay not be worked depending on the availability of an additionaltheatre session.• 3 hours per week (on average over four weeks) at the ElectiveSurgical Centre WDHB.• As part of an on-call roster.No number of hours was allocated to the on-call responsibilities and no mention atall was made of the Breast Screen Aotearoa work.82 At 190.83 At 190.84 At 179.[101] By email of 4 March 2016 sent to MAS, Dr Juhasz detailed a number ofinstances between December 2014 and January 2016 where she had taken annualleave as a result of "flare ups" when her ESR levels had been elevated.85[102] By email of 4 March 2016 Ms Unuka replied giving details of the criteria forassessment of a Recurrent Disability Benefit and the necessity for the relevantdisability to occur, "... within six months of the payment of a Total or PartialDisability Benefit".86 The letter indicated that if relevant flare-ups had occurredwithin six months of the claim ending in June 2015 MAS would be happy toconsider whether there was any entitlement and detailed the type of information thatwould be required.87[103] Dr Juhasz provided a Statutory Declaration dated 7 April 2016 stating thatshe did not currently work 40 hours per week and:At no stage since suffering the illness that triggered my claim under thepolicy have I worked 40 hours per week.The Statutory Declaration had appended to it a Schedule which was said toaccurately summarise Dr Juhasz's usual working hours.[104] The Statutory Declaration was provided under cover of a letter fromDr Juhasz's lawyers. That letter contained the following statements:88To the extent Dr Kenny has based his opinion on Dr Juhasz's capacity towork on a mistake in relation to her actual hours, his report is unreliable andcannot form a reasonable basis on which to decide to cease payment of thebenefit payable under the policy....With respect, it is not Dr Juhasz's responsibility to procure a revision of thereport which MAS commissioned.[105] One of the benefits of being in receipt of either a Total or Partial Disabilitybenefit was that, during such a period, the premium for the policy was not required85 At 181.86 At 182.87 At 182.88 At 195 and 196.to be paid. MAS advised in February 2016 that the requirement for premiumpayments recommenced on 24 December 2015 being the date that Dr Juhasz'sobjections to the claim outcome were fully considered and responded to.89Dr Juhasz advised that she would pay premiums for continuing cover under thepolicy on a "without prejudice" basis.[106] As a result of the July report from Dr Kenny MAS paid the Partial Disabilitybenefit up to 31 May 2015.90[107] MAS in October 2016 asked Dr Juhasz to provide details of the hours thatshe was working and her earnings from the period from 1 March 2015 until30 June 2015.91[108] As a result of the information provided by Dr Juhasz MAS formed the viewthat Dr Juhasz had received a Partial Disablement benefit for the period1 March 2015 to 31 May 2015 in the sum of $46,539.53 to which she was notentitled. It seeks recovery of that sum.92The evidence at hearing[109] The three key witnesses at the hearing were Dr Juhasz, Dr Kenny andMs Joanne Unuka of MAS. I set out the details of those three witnesses' cross-examination below, as well as a summary of the other witness evidence given at trial.Dr Juhasz's evidence[110] I heard extensively from Dr Juhasz. She gave a history of the physicalproblems and pain she had experienced and also referred to the consequentdepression she had suffered. Dr Juhasz indicated that the pain she was experiencingstarted to worsen in late 2014 − early 2015. She recorded that she took both sickleave and annual leave to get help with the pain from overseas specialists.89 At 191.90 At 191.91 ABD vol 3 at 1032.92 Statement of defence and Counterclaim, 18 November 2016 at [6.4].[111] In relation to why she started working again in 2013, Dr Juhasz indicated thatshe was being pressed to return to work by WDHB out of fear of termination, andthat throughout her part-time employment from July 2013 she was not necessarilyactually working the hours she had listed, and kept this quiet out of fear ofdismissal.93 She indicated that this fear of dismissal had particularly affected herinteractions with Dr Kenny and their communications around her hours.[112] Dr Juhasz confirmed the job-sized role was initially 30.5 hours per week andthen subsequently changed to around 30 hours per week around July 2015.94Relationship with Dr Kenny[113] Dr Juhasz gave evidence in relation to the request by MAS in 2015 for her tosee Dr Kenny for review. She said that she explained to Ms Unuka at MAS over thetelephone that she:... did not have a very good relationship with Dr Kenny because of the wayhe had treated me before and I would prefer to go to someone unconnectedwith the WDHB if a review was required. Joanna Unuka was insistentthat I go to Dr Kenny.[114] As I have detailed in the summary of facts at the start of this decision, this isnot a full or accurate description of Dr Juhasz's interactions with both Dr Kenny orwith Ms Unuka.95 Dr Juhasz had seen Dr Kenny on seven occasions before themeeting in June 2015. She accepted at the hearing that she had not raised with MASany concern about Dr Kenny until 19 June 2015 but claimed that she had previouslyexpressed this view in telephone discussions.96[115] All of Dr Juhasz's telephone conversations with her initial claim manager atMAS, Nina Burt, were recorded; there is no record of such comments in relation toDr Kenny in the recordings of these conversations. Ms Unuka took over fromNina Burt as the MAS representative dealing with Dr Juhasz in November 2014.Her telephone conversations with Dr Juhasz were not recorded. However, in93 Juhasz BoE at [5.3] and [11.5].94 Karen Lynda Hellesoe brief of evidence, August 2017 [Hellesoe BoE] at [3] confirmed a serviceadjustment in administrative hours reduced Dr Juhasz's job-size assessment to 28.9 hours fromJuly 2015.95 At [20] and [59]–[65] above.96 ABD vol 1 at 91.Ms Unuka's notes of the conversation on 15 January 2015 Dr Juhasz is noted asdiscussing her upcoming appointment with Dr Kenny without flagging any concernsshe had.[116] Ms Unuka's evidence, confirmed in cross-examination, was that the firstMAS knew that Dr Juhasz had reservations about Dr Kenny was just before theJune 2015 appointment. It was not put to her in cross-examination that there wereprior telephone discussions.97 I therefore accept that 19 June 2015 was the firstoccasion that Dr Juhasz raised with MAS any of her objections to Dr Kenny.[117] Having raised her issue with Dr Kenny three days prior, the notes of the22 June 2015 telephone discussion between Ms Unuka and Dr Juhasz recorded herreasons for not wishing to see him as a fear he would not be "particularlysympathetic" and that she had found him "antagonistic" in the past.98[118] Dr Juhasz was referred to notes of the telephone conversation she had withMs Unuka on 26 June 2015.99 Those notes indicated that Ms Unuka had outlinedwhy she believed there was no conflict of interest on the part of Dr Kenny given thatMAS had no contact with WDHB and recorded Dr Juhasz as indicating, "[s]he nowunderstood this".100[119] In cross-examination Dr Juhasz accepted that at the outset of the interview on29 June 2015 Dr Kenny had explained his role and objectivity in his review, but sheadded, "... but I didn't trust him, because of my previous experiences with him".101[120] When being cross-examined on this topic Dr Juhasz raised as one of thereasons she did not wish to see Dr Kenny in June 2015 was because of a claimedbreach of privacy by Dr Kenny after which "the whole of the Auckland MedicalCommunity knew what was happening".102 This claim had not been mentioned ineither of her briefs of evidence.97 NOE, at 185 line 21.98 ABD vol 4 at 1423.99 At 1423.100 At 1423.101 NOE at 40, line 11.102 NOE at 45, line 15.[121] Dr Kenny was not cross-examined at all on these allegations.[122] As to why Dr Juhasz had not previously raised with MAS the alleged breachof privacy by Dr Kenny, Dr Juhasz's answer in cross-examination was that she didn'tbelieve it was their business.103[123] There is no basis in the evidence for a finding that Dr Kenny breachedDr Juhasz's privacy or conspired against her.Amount of hours communicated to Dr Kenny[124] Of the meeting with Dr Kenny on 29 June 2015 Dr Juhasz says:104At that time I was very unwell and had been organising a furtherconsultations [sic] with overseas specialists. I was concerned that if he knewhow unwell I was as then he would say I was not fit for work. I wasdesperately trying to keep hold of my job at that point. I knew that if I hadany more sick leave my employment would probably be terminated.[125] As to what occurred during the meeting, Dr Juhasz said that Dr Kenny "keptgetting it wrong and I offered several times to write down my full weekly schedulefor him. He declined this offer".105 Subsequently Dr Juhasz asserts there were rostermistakes in the final report.[126] At the hearing, Dr Juhasz produced some notes that she had obtained directlyfrom Dr Kenny by making request under Privacy Act 1993 and Health InformationPrivacy Code 1994.106 She also produced a handwritten transcript of the notes.107[127] As to whether the detail in the notes recorded by Dr Kenny regarding thehours worked by her, Dr Juhasz said, "[s]ome of it's accurate but some of it isn't".108Dr Juhasz then detailed in evidence which parts of what Dr Kenny had written in hisnotes as to her hours that she said was not correct.103 NOE at 46, line 1.104 Juhasz BoE at [7.4].105 Juhasz BoE at [7.5].106 ABD vol 4 at 1562−1569.107 At 1572−1577.108 NOE at 28, line 1.[128] Dr Juhasz gave evidence that some of the handwriting on Dr Kenny's noteswas hers.109 From the position of the words which Dr Juhasz said were in herhandwriting it appears that she must have reviewed the notes (or at least the firstpage of the patient data form) after Dr Kenny had made his notes on that page andadded her contribution later.[129] In relation to what was in Dr Kenny's notes about the on-call component ofher work Dr Juhasz said:110One in 14 whole weekends, 72 hours on-call", that refers to the fellowcovering for Friday night on call and then I cover the rest of the weekend."Stays at home can be from zero theatre to 16 hours". That's correct. "Afteracute weekend, all week operating, 0800 to 1700 Monday to Thursday",that's correct, and then he's got, "Operating all day difficult acute cases,laparotomy, volvulus, acute styptical gallbladder" that refers to the difficultcases I may need to be operating on.[130] In relation to the entry in Dr Kenny's notes which read, "Approximately40 hours per week", Dr Juhasz denied having told Dr Kenny she was working40 hours per week.[131] Dr Juhasz acknowledged that when she raised the claim of factual errors inDr Kenny's July report MAS invited her to contact him to provide him with thecorrect information. She expressed her view as being:111It was not up to me to correct the inaccurate report on which MAS had basedits decision.Dr Juhasz's perceived hours[132] In relation to her work pattern Dr Juhasz's evidence was:My commitment to Breast Screen Aotearoa is part of my employment as abreast surgeon and is paid separately from my salary.[133] The statement that this work is paid separately from the base salary for thejob-sized role is correct but any impression that the Breast Screen Aotearoa work ispart of the job-sized role is not correct.109 NOE at 26, line 8.110 NOE at 29, line 18.111 Juhasz BoE at [9.2].[134] Dr Juhasz referred to her Outlook calendars and said that she utilised such adocument to keep track of her Breast Screen clinics and other variable duties.[135] Printed versions of the Outlook diaries for the period January 2015 untilDecember 2016 were originally provided in discovery (the original versions).112Amended versions of these Outlook diaries for the same period were providedshortly before the hearing.113 Further copies of the 2015/2016 Outlook calendars"showing actual hours" were provided in a supplementary affidavit on 4 October2017.114 These documents were materially different to the original versions of theOutlook diaries provided.[136] Dr Juhasz in her evidence went into some detail as to how some of the hoursand meetings listed in her Outlook and other places were not actually attended orworked by her. Consequently she opposed Mr Jordan's evidence and assumptionsbased on those calendar entries as incorrect.115[137] Dr Juhasz also provided evidence that she had not attended all of the breastand colorectal MDM meetings and business meetings. She said she attended 20 ofthe breast MDM meetings and 18 of the colorectal MDM meetings in 2015, and22 of the breast MDM meetings and 10 of the colorectal MDM meetings in 2016.She did not specify how many of these meetings she missed. Between January 2015and December 2016 she said that she attended 14 of the 18 business meetings in2015. She said that of the 24 audit meetings in the calendar year 2015 she attended18 and of the 31 audit meetings in the calendar year 2016 she attended 22. She didnot explain whether the reason she missed these meetings was because she was onannual leave, overseas study leave, on sick leave or simply in pain.[138] In relation to the on-call roster, Dr Juhasz distinguished between what shesaw as "actual work", such as attending the hospital and undertaking surgery or award round, from being available on-call at home and providing assistance by112 ABD vol 4 at 1082−1105.113 ABD vol 4 at 1536-1559.114 At 1578 and 1579.115 Juhasz BoE at [4].telephone. Dr Juhasz also gave evidence of a number of surgical procedures inwhich she merely supervised the actions of the registrars.116[139] Dr Juhasz concluded her September 2017 brief of evidence by saying thatbased on her recent analysis the only weeks in which she had worked 40 hours werethe week of Monday, 6 July 2015 and the week of Monday, 25 January 2016.[140] Dr Juhasz also gave details of the extra work she took on and her motivationsfor doing so. During cross-examination the proposition was put to Dr Juhasz thatwhen she agreed to take on the additional ESC work, at the time of the job-sizingexercise in April 2014, she must have been able to carry out the job-sized tasksotherwise she would not have taken on the additional commitment of contractingwith WDHB for the ESC work. Her response to that proposition was to say:117No, that's incorrect. I was not capable at that point in time but it was myevery intention that I would fulfil my obligations to my department and mycolleagues and pull my weight within that department. My expectation wasthat I would be able to fulfil that job-sized contract over time having justcome off the return to work programme. I was also under pressure to sign upfor the ESC in the same way as everyone had to sign up and do sessions, andit was seen as part of the obligations of working as a department to pull one'sweight and do one's fair share.[141] Dr Juhasz similarly denied she had asked to be put on the on-call roster andasserted that she took on the burden because it was what the department and hercolleagues expected of her. 118[142] Dr Juhasz admitted in cross-examination that she had not challengedsummaries of her hours as incorrect to MAS on any occasion because she herself didnot know them and had not taken the time to sort through them. 119[143] Dr Juhasz was referred in cross-examination to an Outlook calendar whichshe had prepared for March 2015, which showed an entry for one hour on Friday6 March for house surgeon teaching, and a similar entry for 13 March and116 NOE at 17, line 14.117 NOE at 82, line 30.118 NOE at 84, line 6 and 19.119 NOE at 93, line 4.20 March.120 Dr Juhasz would not accept that the teaching duties had not beenincluded in the job-size because there had been no hours allowed under the"teaching" heading.121[144] When referred to the evidence of Ms Hellesoe of WDHB (her own witness)who had accepted that teaching hours were not included in the 30.5 hours covered bythe job description, Dr Juhasz attempted to minimise Ms Hellesoe's evidence:122Q. So, if Ms Hellesoe accepted that that was the case she is incorrect?A. Yes, Ms Hellesoe was our manager for a very short period of time,about two or three years.[145] When questioned about the discrepancies between the various iterations ofthe Outlook calendars she had produced and also the inconsistency with the sworndeclaration of April 2016, in particular, on the point that the original Outlookcalendars showed her working every Monday which was subsequently changed toone Monday out of four, Dr Juhasz said:123I don't work every Monday but I can go in and do things on a Monday. I'm,I am rostered to do a − that particular four-week period I probably tookadditional, as part of my sizing I was expected to pick up additional lists sothere is an additional theatre list on a Monday and I would have had a post-acute round on Monday as well.[146] When pressed on the discrepancy Dr Juhasz said:124The schedule that I've provided is my regular rostered sort of sessions thatI've got. There are additional duties that I take on from time to time.[147] When a discrepancy of an hour between the Outlook calendar forMarch 2015125 and the revised calendar126 (which had changed the duration of theclinical session on 3 March from five hours (0800−1300 hours) to four hours(0830−1230 hours)) was put to her Dr Juhasz claimed:127120 ABD vol 4 1538121 NOE at 102, line 1.122 NOE at 102, line 15.123 NOE at 104, line 4.124 NOE at 104, line 17.125 ABD vol 4 at 1084.126 At 1538.127 NOE at 106, line 18.No, that's actually not entered in a way to reflect the hours. That was justentered to block out that morning so that no additional meetings could bescheduled, so that wasn't put in there as a reflection on the hours. That wasput in there basically to block out that morning.[148] When it was put to her that the later iterations of the Outlook calendars hadbeen prepared so as to shave time off the hours which were recorded, Dr Juhasz'sevidence was:128These weren't hours recorded. These were events that were introduced intomy calendar. What I've done in going back is I've tried to be absolutelyaccurate on the hours that I was attending those sessions.[149] In response to the differences between the contents of the sworn declarationwhere the declaration showed Dr Juhasz working one Monday in four and the job-size worksheets had tasks every Monday, Dr Juhasz said:129That non-clinical task is just written in there really to put it somewhere ...[150] The conclusion that I come to from these questions and answers is that theentries in the Outlook calendar are not a reliable record of the tasks actually taken byDr Juhasz.[151] When it was put to Dr Juhasz that Ms Hellesoe had given evidence about herrole being re-sized to 28.9 hours in July 2015 as a result of a service adjustment toclinical administration hours Dr Juhasz responded by saying:130Well, actually that's not correct. I'm not sure where that's come frombecause I am still job-sized for 30 hours a week and that's what appears onmy pay sheet, so I was a bit puzzled when I saw that but I can't explain it. Idon't know where that comes from.[152] During cross-examination Dr Juhasz acknowledged that, notwithstanding herevidence that she was struggling to undertake her work commitments to WDHB andhad been using her accumulated annual leave entitlement to provide respite fromwork, she had only recently travelled to the Solomon Islands and undertaken sevendays of work as a surgeon there on a volunteer basis.131128 NOE at 106, line 25.129 NOE at 106, line 13.130 NOE at 112, line 17.131 NOE at 113, line 12.[153] In supplementary oral evidence Dr Juhasz provided further details aboutBreast Screen Aotearoa. She indicated that up until 2006 the breast screening workhad been outsourced to a private provider, but since then WDHB had resumedcontrol of it and had delivered the service through a mix of WDHB employees, onesurgeon who was not an employee and some private radiologists.132[154] She confirmed that the employees of the DHB who provided the service didnot have separate contracts with the DHB and that their entitlement to payment wastriggered by signing an attendance register.133[155] On the issue of when Dr Juhasz knew that her benefit payments would cometo an end, during cross-examination Dr Juhasz was referred to the email she receivedfrom Ms Unuka dated 28 September 2015, which contained the sentence:134Information in the report regarding the number of hours you are working perweek indicates that support under the policy has come to an end ...[156] Dr Juhasz agreed that she was worried about the prospect of payment underthe policy ceasing,135 but disagreed that the email of 28 September 2015 conveyedthe message that support under the policy had come to an end.136 It is difficult toreconcile these observations.Evidence for MAS[157] Joanne Unuka, a Senior Disability Claims Adviser employed by MAS gaveevidence of taking over management of Dr Juhasz's claim in approximatelyNovember 2014.[158] Ms Unuka detailed the decision made in January 2015 for Dr Juhasz to beassessed by Dr Kenny. She explained that the reason that Dr Kenny was chosen wasthat he was deemed to be the most appropriate occupational physician because he132 NOE at 294, lines 11−24.133 NOE at 294, line 25.134 ABD vol 1 at 121.135 NOE at 49, line 9.136 NOE at 49, lines 15 and 25.had previously carried out assessments of Dr Juhasz for the WDHB and had beenactively involved in her rehabilitation programme.[159] She said that it was not until Monday 22 June 2015 (a week before thescheduled assessment by Dr Kenny) that she saw the email that Dr Juhasz had sent at5.31pm on Friday 19 June 2015 and explained that the reason MAS did not agree toDr Juhasz's request to be assessed by an alternative occupational physician wasbecause of the proximity of the arranged interview (which had taken some fourmonths to arrange) and the likely lengthy delay in finding another occupationalphysician.137 Ms Unuka indicated that the referral letter sent to Dr Kenny on23 June 2015 was "more or less a standardised list of questions asked of anOccupational Physician".138[160] Ms Unuka said that she was very surprised to receive the July 2015 reportfrom Dr Kenny because it was inconsistent with Dr Juhasz's progress reports overthe preceding months. She explained that the report was referred by MAS to theirre-insurer for review and input and that subsequently the decision was made to stopthe claim on the basis of the information that Dr Juhasz was working over 40 hours aweek. She rejected Dr Juhasz's suggestion that MAS had deliberately delayed untilaround six months after payments had stopped so as to frustrate Dr Juhasz's abilityto access Partial Disability benefit payments.[161] When she was asked in cross-examination as to why, if MAS had a concernin relation to Dr Juhasz's total hours of work, Dr Juhasz was not asked for the detail,she said that Dr Juhasz had provided the detail of the hours that she was working andthey were not consistent with the information in the report from Dr Kenny.139[162] In response to the suggestion that Dr Juhasz formed a fair conclusion that thereason for the proposed consultation with Dr Kenny in June 2015 was to see whatmore could be done with her rehabilitation. Ms Unuka said:140137 Joanne Louise Unuka brief of evidence, 17 October 2017 [Unuka BoE] at [25].138 Unuka BoE at [28].139 NOE at 153, line 6.140 NOE at 155, line 1.I'd had email correspondence and discussions with her that part of thereferral was to get a snapshot or to get an understanding of exactly what wasgoing on with her, and that included what hours she was working, what workshe was completing.[163] In response to a suggestion that the number of hours Dr Juhasz was workingwas a primary concern of MAS in relation to the proposed assessment by Dr Kennyin June 2015, Ms Unuka said:141No, I don't believe that it was because at that stage while we needed tounderstand the hours it formed part of understanding what a rehabilitationprogramme would like that [sic].... We didn't ask Dr Juhasz to confirm thembefore the appointment because as far as we were aware she was doing the30 hours that she'd stated in her progress report.[164] In response to questioning about why MAS insisted that if Dr Juhasz believedthat Dr Kenny had not accurately recorded details of her work, it was up to her tocontact Dr Kenny directly to correct it, Ms Unuka said:142With regard to the hours, yes they were − that was information that she'dprovided to Dr Kenny and Dr Kenny had taken it down. We weren't in thatassessment so we couldn't correct them.[165] As to why MAS had not provided Dr Kenny with the statement fromDr Juhasz as to what hours she said she works Ms Unuka explained that Dr Juhaszhad provided this information to MAS in confidence and had stipulated this in aphone call which had preceded the email containing the information.143[166] Under cross-examination, Ms Unuka agreed that a one-off performance of40 hours per week would not be likely to result in MAS concluding that Dr Juhaszmust no longer be entitled to a partial disability benefit.144 Ms Unuka also clarifiedthat in terms of the policy the issue was not what hours had actually been worked butwhat hours the Insured Person was capable of working.145141 NOE at 157, line 30.142 NOE at 158, line 12.143 NOE at 160, line 11.144 NOE at 175, line 26.145 NOE at 176, line 1.Dr Kenny's evidence[167] Dr Courtenay Kenny detailed in evidence his involvement with Dr Juhaszfrom 22 January 2013. He confirmed that in December 2015 he was telephoned byMAS in relation to Dr Juhasz's hours of work. He said he consulted his notes andwas comfortable with his report. He recognised it was possible that Dr Juhasz mayhave left some shifts earlier if she was not required but said this did not affect hisassessment of her capacity.[168] In relation to the handwritten notes of his meeting with Dr Juhasz on29 June 2015 Dr Kenny said that they were not in chronological order but werejotted down as Dr Juhasz said things to him.146[169] Dr Kenny said that the majority of time during the consultation was focusedaround Dr Juhasz's working hours and working activities because he already had agreat detail of information about her health issues. Dr Kenny did not recallDr Juhasz offering to write down her hours of work for him, nor could he recall herclaim that he had got it wrong several times.147 He further said:148I was confident with what she was telling me and what she told me isabsolutely what I've written down in those somewhat haphazard notes ...[170] When pressed further, Dr Kenny referred to the alterations appearing onpage 3 of the notes,149 and said that they got there as a result of Dr Juhasz correctinghis first entry and him then altering that entry.150[171] Dr Kenny was cross-examined closely on his concept of "work" and whatactivities Dr Juhasz undertook which qualified as "work" and how intermittentobligations (like the one in four week Breast Screen Aotearoa obligations and theone in 15 week on-call roster) should be categorised.146 NOE at 199, line 20.147 NOE at 200, line 18.148 NOE at 200, line 23.149 ABD vol 4 at 1564.150 NOE at 201, line 9.[172] Dr Kenny was cross-examined about whether it was appropriate to allocate toan on-call weekend 72 hours of work. His response was:151It's an hour paid salary and therefore it's an hour worked. It's an hour onwhich a clinician has clinical responsibility, perhaps to attend, perhaps onlyto take phone calls and provide advice, but it is always considered part ofwhat a person's employment commitment was ... .[173] Dr Kenny was clear that in his eyes the 72 hour period of on-call work, whilenot being physical work, was a clinical responsibility and hours that Dr Juhasz wasbeing paid to reserve her skills for.[174] Dr Kenny was asked to further clarify his understanding of the on-callobligation. In addition to the one in 14 weekend call he explained that there was alsomid-week call every two to three weeks. He described that as involving:152... the on-call is from approximately 8 o'clock in the morning to 8 o'clockthe following morning, so it means that the clinician is responsible for newadmissions and surgery during a normal working day and those occurringthrough the evening until the following morning.[175] He further said that he had worked out that if it is one every two to threeweeks it was approximately five on-call nights in a 14-week cycle; i.e. once every2.75 weeks, or:... approximately five every 14 weeks and five 12s are 60, divided by 14 is,is five.[176] And he confirmed that he therefore used an average of five hours perweek.153[177] Dr Kenny explained that the words "approximately 40 hours per week" onhis notes referred to the 30 hours of the job-sized role plus a ten hour per weekaverage allocation for participation in the other duties.154[178] He agreed that the job-sized role and the on-call component, the ESC andBreast Screen Aotearoa work needed to be added together to produce the overall151 NOE at 227, line 6.152 NOE at 236, line 30.153 NOE at 237, line 27.154 NOE at 238, line 17.work obligation.155 He also confirmed that whatever CME Dr Juhasz was able to dowould be on top of the 30 hours of defined work output in the job-sized role.156[179] Dr Kenny accepted Dr Juhasz's working schedule varied with one heavyweek being followed by a lighter week. However, he did not accept the propositionthat was put to him that this was an appropriate strategy for managing pain, nor thatDr Juhasz had presented the variation in weekly work as being justified on thatbasis.157 He said:In my reasonable experience with chronic musculoskeletal pain, a pattern ofvery high intensity or provocative activities followed by a period of muchreduced activities is not an appropriate strategy and I doubt will berecommended generally by multi-disciplinary pain service.Medical and hospital witnesses[180] I heard evidence from the following witnesses as to Dr Juhasz's pain levels,work schedule and work capacity.[181] Dr Susan Jerred, a breast and general surgeon at WDHB, said that she hadregular professional contact with Dr Juhasz with both attending Wednesday morningBreast Screen Aotearoa MDM meetings and the symptomatic breast MDM held atthe North Shore Hospital, as well as the Friday morning departmental meetings.[182] Dr Jerred's gave evidence as to the job-sizing exercise for senior doctors andsaid the purpose was to establish an "aspirational" average weekly number of hoursin which each doctor will undertake his or her duties.[183] Dr Jerred agreed that if part of a job-sized role was consistently not beingundertaken, the DHB would be likely to re-size the role and eliminate thatcomponent. She confirmed that this had not been done in Dr Juhasz's case and thatthe DHB must therefore accept that the role as set out in the job-size exercise was anaccurate description of what Dr Juhasz was currently doing.155 NOE at 239, line 20.156 NOE at 240, line 18.157 NOE at 231, line 21.[184] Dr Evan Dryson, an occupational medical specialist, gave evidence of seeingDr Juhasz on 2 May 2016 following a referral from her general practitioner. He saidthat Dr Juhasz advised him that she was then currently working on averageapproximately 32 hours per week. He expressed the opinion that Dr Juhasz:158... was competent to practice as a colorectal surgeon for up to 32 hours perweek, but given her limitation due to pain and inability to stand forprolonged periods, and concerns about the stiffness of her hands, she was notable to work for more than that number of hours per week.[185] Under cross-examination Dr Dryson confirmed that his opinion was based onthe information provided to him by Dr Juhasz. He acknowledged that he wasunaware that, in addition to colorectal work, Dr Juhasz undertook breast surgery orwork with Breast Screen Aotearoa.[186] Dr Christine Lipyeat gave evidence that she had been Dr Juhasz's GP since3 November 2000. She confirmed that following the surgery in December 2010Dr Juhasz's primary debilitating condition of intense pain in her left foot hadcontinued. She also gave evidence about Dr Juhasz's erythrocyte sedimentation rate(ESR) (a marker of various conditions including infections), which had beenconsistently above average.[187] She described Dr Juhasz as:159A very stoic woman and currently she has a lot of pain and she is workingand coping with it and, you know, as a surgeon and a medical professionalshe probably endeavours to keep her practice going and her work going ...[188] Karen Hellesoe, the Operations Manager for Cancer Services at WDHB butpreviously Operations Manager of General Surgery at WDHB gave evidence ofbeing the manager who undertook Dr Juhasz's job-size assessment and review inMay 2014.[189] She stated that the assessment recorded that Dr Juhasz was, as of May 2014,working an average of 30.5 hours per week and that this was reviewed in July 2015158 Evan William Dryson brief of evidence, August 2017 [Dryson BoE] at [13].159 NOE at 54, line 10.and reduced to 28.9 hours due to a service adjustment in clinical administrationhours.160[190] She noted that five hours of the job-sized role was allocated to a half-daytheatre session that was not formally scheduled and that this session was includedbecause Dr Juhasz was keen to undertake at least one theatre session per week.161She indicated that Dr Juhasz would do the five-hour theatre session when she couldand provided what she described as "backfill". Ms Hellesoe described backfillingas:162... taking the place of another surgeon on a vacant theatre, so when one of the14 or 15 other surgeons were away on leave or attending conferences, or sickthat meant that their theatre session was free and we would then be able tohave the opportunity to ask [Dr Juhasz] to backfill or operate in that sessionin that doctor's place.[191] Ms Hellesoe indicated that:163... the fact that (Dr Juhasz) was able to be flexible with providing backfillthat was of significant value to us and it also provided her the opportunity todo some extra work as it was available.[192] When asked whether Dr Juhasz regularly provided backfill Ms Hellesoesaid:164She did as I recall, yes, and as I say she got us out of some sticky spots attimes too because otherwise the session would've been left empty.[193] Ms Hellesoe confirmed that the on-call roster, in addition to one in fourteenweekends also involved one in four weekdays on-call.165 She also confirmed thatparticipation in the on-call roster was not universal by the general surgeons and therewas one older member of the department who did not participate.166160 Hellesoe BoE at [3].161 At [3].162 NOE at 65, line 23.163 NOE at 64, line 7164 NOE at 66, line 8.165 NOE at 67, line 16.166 NOE at 67, line 22.[194] Melvine Easton (Dr Juhasz's husband) indicated that prior to her surgery in2010 the demands of Dr Juhasz's public and private practice were significant andthat she worked long hours and part of almost every weekend was spent working.167[195] Mr Easton said that he had an involvement in encouraging Dr Juhasz toreturn to work on the return to work programme of July 2013 and said that his reasonfor this was because he:168... felt that it was important that she attempted to get back to work to anyextent she possibly could so that her years of training and hard work and therespect that she had achieved in her profession were not wasted.[196] He referred to Dr Juhasz being exhausted after a heavy working week andexpressed the view that she could not work any more than she was working now.The financial evidence[197] Both the plaintiffs and the defendant had expert accounting witnesses giveevidence in Court.[198] Mr Callan Taylor gave evidence of being a member of the firm of ShoreChartered Accountants Limited which provided accounting services for Dr Juhaszand her company, Eva Juhasz Limited. He detailed the information that theaccounting firm had provided to MAS at their request.[199] Mr Taylor produced two new documents at the hearing. One was aspreadsheet listing Dr Juhasz's hours of work between 7 June 2015 and 18 December2016,169 and the other was a graph representing Dr Juhasz's income over a similarperiod with entries for Weekly Income, 75 per cent Pre-Disability Weekly Revenue(CPI adjusted) and overall median weekly income.170[200] The spreadsheet detailed the hours that Dr Juhasz had worked in accordancewith her job-sized role, added to that the fortnightly on-call allowance, "late167 Melvine James Easton brief of evidence, 15 August 2017 at [3].168 At [5].169 ABD vol 4 at 1664.170 ABD vol 4 at 1665.adjustments" (additional hours), and further added amounts paid to Eva JuhaszLimited by WDHB. The graph represented that information in graph form withsuperimposed lines on the horizontal axis for Overall Median Weekly Income and75 per cent Pre-Disability weekly revenue (CPI) adjusted).[201] Mr Taylor explained to the Court that he had used a median rather than theaverage figure that had been used by MAS's corresponding expert, Barry Jordan,because he thought it would be a fairer representation of the troughs and the dipsbetween the income over the relevant period.171[202] The analysis undertaken by Mr Taylor revealed that in 19 of the 82 weeks hehad surveyed Dr Juhasz's income exceeded 75 per cent of her Pre-Disability WeeklyRevenue (CPI adjusted).[203] He acknowledged that the time period for his analysis was not exactly thesame as the time period for Mr Jordan's analysis. He accepted that the averageincome for the time period analysed by Mr Jordan produced a figure of$7,491.19 per week and the average income for the time period analysed by him was$7,255.46 a week.[204] Barry Jordan, a forensic accountant, gave evidence of analysing Dr Juhasz'sweekly working hours and income. Mr Jordan noted that the 30 hour job-sized rolewas based on a notional average and that the pattern of Dr Juhasz's work indicatedthat she worked more hours in some weeks than others. He also noted that inaddition to the 30 hour per week job-sized role Dr Juhasz undertook the breastscreen clinic roster, the on-call roster, the acute theatre roster and took additionaloperating lists when available. He posed the question as being what hours of workDr Juhasz was capable of working.[205] He noted that the payslips indicated that Dr Juhasz was treated as if sheworked six hours per day every day of the working week. He also noted that the on-171 NOE at 147, line 20.call work could potentially result in many more hours than the "at most seven hoursevery weekend" stated in Dr Juhasz's statement of claim.172[206] Mr Jordan produced a graph which indicated that Dr Juhasz was capable ofworking (as opposed to actually working) more than 40 hours on 31 occasionsduring the period 19 January 2015 to 1 January 2017 (102 weeks).173[207] Mr Jordan noted that the information provided by Dr Juhasz regarding herworking hours was at times contradictory and noted that on occasions the BreastScreen Aotearoa clinic work was not recorded in the Outlook calendars produced byDr Juhasz. He also noted that the on-call obligations were not entered in the Outlookcalendar and that on one occasion the acute theatre information was not in thecalendar.174[208] Mr Jordan noted that the weekly hours recorded by Dr Juhasz fluctuatedmarkedly from three hours to up to 43.5 hours and that on five occasions (weekscommencing 29 June 2015, 19 October 2015, 25 January 2016, 2 May 2016 and22 August 2016) Dr Juhasz had recorded she worked 40 hours or more per week. Henoted that these occasions coincided with Dr Juhasz having worked on-call over therelevant weekend.175 Mr Jordan calculated that there were 31 occasions on whichDr Juhasz was capable of working more than 40 hours per week.[209] Mr Jordan's analysis of the information in Dr Juhasz's WDHB payslips andthe invoices Eva Juhasz Limited submitted to WDHB for elective surgery workproduced an analysis that on 23 occasions between 14 December 2014 and14 December 2016 Dr Juhasz's weekly income had exceeded 75 per cent of her Pre-Disability Income. Mr Jordan also calculated that for the period 14 December 2014to 8 January 2017 Dr Juhasz's average Weekly Income was less than 75 per cent ofher Pre-Disability Income.172 Barry Phillip Jordan brief of evidence,8 September 2017 [Jordan BoE] at appendix A at 3.173 At 4.174 At 5.175 At 6.[210] Mr Jordan also gave evidence of recasting his calculations on the basis ofassumptions made by Dr Juhasz in her evidence. Mr Jordan's evidence was based onthe assumption that if Dr Juhasz had been rostered to undertake a particular task thenirrespective of how much of that task she physically did herself she could be said tohave been "capable of working" for the period for which she was rostered and paid;although he noted that in relation to weekends the most he factored in wasseven hours per weekend.176[211] Mr Jordan calculated that, using the assumptions in Dr Juhasz's evidence,instead of there being 31 occasions when she worked more than 40 hours per weekthere were 15 such occasions. He noted that there was no change to the calculationsin relation to income.[212] Under cross-examination Mr Jordan accepted that the Pre-Disability Incomefigure he had used of $656,123 was different to the figure of $677,688 which MASstarted using, and the CPI adjusted figure of $694,044 that MAS ultimately used.[213] When Mr Jordan was questioned about the evidence given by Mr Taylor hesaid that once he realised that the two data sets covered different date ranges and headjusted the date range, he got similar figures to Mr Taylor; although he noted thatthere was one payment Mr Taylor seemed to have missed. He indicated that he andMr Taylor's calculation were within 97 or 98 per cent of each other.177 He furtherindicated that if you adjusted so as to be looking at the same time periods then bothhe and Mr Taylor had agreed upon 19 weeks where Dr Juhasz's weekly income wasmore than 75 per cent of the Pre-Disability Income.[214] Mr Jordan disagreed that it was appropriate to do a median calculation asMr Taylor had done and said that in his 15 or so years of doing income protectionclaims he had never done such a calculation and had always used an average,indicating that there was quite a difference between a median and an average.176 NOE at 250, line 3.177 NOE at 258, line 10.[215] Mr Jordan rejected the suggestion that his "whole analysis (was) based on anassumption that Dr Juhasz actually physically worked the hours she was job-sizedfor".178[216] When it was put to Mr Jordan that it was an unsatisfactory position for him tobe in having not analysed the Outlook calendars produced by Dr Juhasz immediatelyprior to the hearing, Mr Jordan did not accept that. He said that he did not knowhow he would test such information because he had nothing to reference it against.179[217] Mr Jordan was both cross-examined and re-examined about assumptions hehad made in relation to the hours that Dr Juhasz had worked. He acknowledged thatin respect of Fridays he had assumed that the six hours shown on the payslips forFridays were hours actually worked. He agreed with counsel for the plaintiff that ifthose hours were removed entirely then the figure would be less than 40 hours perweek for the relevant weeks, but he also agreed with counsel for the defendant that ifthe actual hours Dr Juhasz said she had worked for the weeks were added back thenfor the number of weeks the hours exceeded 40.The submissions[218] The plaintiff maintains she was and is entitled to receive a Partial Disabilitybenefit because she at all times met and continues to meet the definition of PartialDisablement contained in the policy. She alleges that she had not returned toworking more than 40 hours per week and is not physically capable of consistentlydoing so, and that her Weekly Income had not exceeded 75 per cent of her Pre-Disability Income.[219] It was submitted that Dr Juhasz never consistently worked the hours orpattern shown in the job-size form. The focus of the plaintiff's case was very muchon attempting to prove the actual hours which Dr Juhasz had worked as opposed tothe hours she might have been rostered or paid for.178 NOE at 263, line 23.179 NOE at 266, line 31.[220] It was submitted that the Outlook calendars produced by Dr Juhasz were ofassistance in determining what she actually did.180 It was emphasised that Dr Juhaszdid not always attend meetings that were shown in her Outlook calendar as beingregular repeated commitments such as business meetings and multi-disciplinarymeetings.[221] Dr Juhasz was critical of the fact that she was not told by MAS that theJuly 2015 Kenny report justified the withdrawal of her Partial Disability Benefituntil more than three months after she had seen Dr Kenny.[222] As to the law to be applied, Ms Meechan QC, counsel for the plaintiff inopening endorsed the approach taken by Woodhouse J in van der Noll v SovereignAssurance Co Limited181 and Katz J in Percy v Sovereign Assurance Co Limited.182[223] The plaintiff conceded that Dr Kenny was "quite properly consulted inrelation to work capacity" but then submitted:183But the most accurate information in relation to the hours a person workscomes from the worker or her employer. MAS checked with neitherDr Juhasz nor the WDHB in relation to hours that Dr Juhasz actually workedbefore making the decision to make no further payment of the Benefit ...This submission ignores the fact that MAS had delegated this task to an expert,Dr Kenny, and he had obtained the information directly from Dr Juhasz.[224] The plaintiff also alleged that there had been a breach by MAS of its duty ofgood faith and fair dealing in that it led Dr Juhasz to believe that the purpose of theJune 2015 consultation was to see if anything else could be done to promote herrehabilitation.[225] In closing submissions, counsel for the plaintiff rephrased her positionslightly. It was said that:184180 ABD vol 4 at 1082 and 1094.181 van der Noll v Sovereign Assurance Co. Limited [2013] NZHC 3051.182 Percy v Sovereign Assurance Co. Limited [2014] NZHC 1573.183 Plaintiff's opening submissions, 9 October 2017 at [4].184 Plaintiff's closing submissions, 19 October 2017 at [1.1].Dr Juhasz's entitlement to the Partial Disability benefit should not and neednot be determined on the basis of the Court resolving "what Dr Kenny saysshe did" versus "what Dr Juhasz says she did" conundrum. It should beresolved on the basis of the Court determining what work Dr Juhasz had thecapacity to do, that is what the policy requires. That issue was informed byan assessment of what work Dr Juhasz physically did and her physicalcondition which impacts on her ability to work.[226] The plaintiff denied that the job-sized role and its remuneration were thecorrect approach and instead said that the issue for determination was:185Does the Court accept that Dr Juhasz's pain was real and did it affect herphysical ability to consistently work more than 40 hours a week?The issue of whether or not "Dr Juhasz's pain was real" is not a matter in issue inthis case. There has been no challenge to the plaintiffs' evidence that Dr Juhasz hasexperienced significant pain over the relevant period of time. The fundamental issueis as to her work capacity.[227] In her closing submissions plaintiff's counsel sought to distinguish the vander Noll line of cases.186 It was submitted that a critical factor in van der Noll,absent in the present case, is that in van der Noll the Insurer was required to form aparticular opinion, whereas in the present case the issue was simply one of fact as towhether or not Dr Juhasz met the criteria in clause 2.2.b of the policy.[228] It was acknowledged that the statutory declaration Dr Juhasz made on 7 April2016 did not contain the level of detail set out in the "actual hours" outlookschedules later produced at the court hearing. It was suggested by counsel that"there is nothing sinister in [the differences in recorded hours]".187[229] The defendant's submission was that it had formed a valid opinion that thefirst plaintiff did not meet the definition of "Partially Disabled" as per the insurancepolicy, that it had "asked the right question", acted in good faith, had taken intoaccount the relevant information available to it, and reached a decision that was185 Plaintiff's closing submissions, at [1.3] and [3.1].186 At [1.1].187 At [5.13].reasonably open to it. It was submitted that on the tests set out in Percy v SovereignAssurance Co Ltd the Court cannot intervene.188[230] It was submitted that the onus was on the insured plaintiff to show that theconclusion contended for by them was the only reasonable conclusion.[231] The defendant submitted that it was reasonable to rely on the information inDr Kenny's report and that is was only after Dr Juhasz apprehended that theinformation she had provided to Dr Kenny might affect her benefit under the policydid she suggest that her working hours were different to those disclosed to Dr Kennyby for example claiming that, although she acknowledged telling Dr Kenny she wascontracted to 30 hours per week, she had not pointed out to him that she was notfulfilling her contract.[232] The defendant's position was that, as a question of fact, Dr Juhasz wascapable of working more than 40 hours per week.[233] In response to the plaintiffs' criticism that Dr Juhasz was not properlyinformed about the purpose of the requested consultation with Dr Kenny inJune 2015, the defendant pointed to the relevant email to Dr Juhasz stating that theconsultation was being arranged "for MAS's benefit" and that the defendant wanteda "snapshot" of where the plaintiff was "currently at" and "what could reasonably beexpected to change, including exploring what interventions may have a positiveimpact on [Dr Juhasz's] work capacity".189[234] The defendant also referred to Dr Kenny's evidence that Dr Juhasz had toldhim that she was working on average 42 hours per week.[235] Counsel for MAS conceded that if the defendant had relied on informationthat was materially incorrect then the Court could intervene. However, it wassubmitted that the information contained in the July 2015 report as to hours wasconsistent with the components making up Dr Juhasz's work commitments and the188 Percy v Sovereign Assurance Co Ltd [2014] NZHC 1573 at [7].189 Defendant's closing submissions at [16].Court was also reminded that the defendant's decision was made on the reportprepared and submitted by Dr Kenny, not on his handwritten notes.[236] In relation to the claim for general damages it was submitted that inaccordance with the decision of Tomkins J in Edwards v AA Mutual Insurance CoLtd the general rule was that damages for injured feelings, upset and annoyanceresulting from the breach of contract are not recoverable.190 However, it wasconceded that where substantial inconvenience resulted from a breach of contract,damages could be recovered.[237] As to the evidence, counsel for the defendant pointed out that Ms Hellesoewas satisfied that Dr Juhasz was fulfilling her job-sized role and also emphasised theinconsistencies in the various accounts by Dr Juhasz as to what she actually did.[238] It was submitted that if Dr Juhasz's evidence that she was not fulfilling herjob-sized 30 hours per week was accepted, then this would mean that she was usingher time that would otherwise have been spent fulfilling her job-sized roleundertaking contract work for which she was paid separately through her companyEva Juhasz Ltd.[239] In relation to the issue of whether or not Dr Juhasz was earning more than75 per cent of her Pre-Disability Income it was submitted that there was substantialagreement between Mr Jordan for the defendant and Mr Taylor for the plaintiff thatthere were regular instances in the 2015–2016 period when Dr Juhasz earned aWeekly Income more than 75 per cent of her Pre-Disability Income.[240] In relation to the issue of whether Dr Juhasz was earning a Weekly Income ofmore than 75 per cent of her Pre-Disability Income the defendant submitted therelevant test in the policy was "income earned each week".[241] In relation to Dr Juhasz's complaint that she wished an Occupational HealthSpecialist other than Dr Kenny to assess her, it was submitted that given the latenessof the objection (a week before the scheduled meeting) there was nothing190 Edwards v AA Mutual Insurance Co Ltd (1985) 3 ANZ Insurance Cases 60-688 at 79,174.unreasonable about MAS insisting that the scheduled assessment proceed and noreason why Dr Kenny was inappropriate.Counterclaim[242] In relation to the counterclaim the defendant submitted that the evidenceshowed that at least for the period from 1 March 2015 – 31 May 2015 Dr Juhasz wasnot in fact entitled to the Partial Disability benefit because she did not fall within thecriteria of earning a Weekly Income of less than 75 per cent of her Pre-DisabilityIncome and not being capable of working more than 40 hours per week.[243] In response to the plaintiffs' allegation that the defendant had been providedwith all the information that it had requested from the plaintiff and was thereforeestopped from claiming repayment of the benefit paid between 1 March – 31 Maythe defendant submitted that it was not, in fact, in possession of full and completeinformation and the information that it had was misleading. The defendant alsorelied on the principle that a person claiming estoppel cannot do so where therelevant representation was as a result of, or contributed to by a representation orbreach by the person claiming estoppel.191[244] It also noted that essential to a defence of estoppel was that the plaintiffshowed detrimental reliance or alteration of position.192[245] The defendant said the plaintiff had been unjustly enriched by receipt of aPartial Disability benefit that she was not entitled to and sought judgment in the sumof $46,539.53 plus interest and costs.[246] In response to the counterclaim, the plaintiffs' counsel submitted that therewas not a single week in the period 1 March 2015 to 31 May 2015 where theplaintiff actually worked 40 hours or more. This approach continued to focus onwhat hours were actually worked rather than what hours Dr Juhasz had the capabilityto work.191 Souter v Souter [1923] NZLR 1078 at 1101.192 Powerbeat Canada Ltd v Powerbeat International Ltd [2002] 1 NZLR 820.[247] It was submitted that this was not a case of MAS paying moneys whilelabouring under any mistake about what Dr Juhasz was earning in particular,submitting that MAS was aware of the ESC work from at least the beginning of 2015and saying that the on-call payment had not resulted in any spike in her earnings.[248] In relation to the pleading of unjust enrichment it was submitted that this wasa restitutionary remedy the boundaries of which remain undefined.[249] In relation to estoppel, the plaintiff said that the defendant should be limitedto those weeks where Dr Juhasz's income did exceed the 75 per cent threshold.[250] It was conceded that Dr Juhasz could not point to any specific detriment butcounsel said that in all the circumstances it was unfair for an insurer who owes aduty of utmost good faith to "re-calibrate" its position.Analysis[251] Counsel for the plaintiff in opening asserted that the principles to be appliedin this case were expressed by Woodhouse J in van der Noll v Sovereign AssuranceCo Ltd193 and Katz J in Percy v Sovereign Assurance Co Ltd.194 She submitted thethree relevant principles as being:(i) The insurer must consider and determine the correct question orquestions. This is essentially a matter of correctly interpreting thepolicy.(ii) Where the insurer seeks an opinion from an expert the expert musthave all the information that is relevant to the expert's opinion.(iii) The insurer is under a duty of good faith and fair dealing.[252] Counsel for the defendant in opening also submitted that the principlesapplied in van der Noll and Percy were applicable although counsel also referred tothe requirement noted in those cases that the insurer must reach a decisionreasonably open to it. 195193 van der Noll v Sovereign Assurance Co Ltd [2013] NZHC 3051 at [94].194 Percy v Sovereign Assurance Co Ltd [2014] NZHC 1573 at [4]–[7].195 Percy v Sovereign Assurance Co Ltd at [7]; van der Noll at [9].[253] The point of difference between counsel arose from the fact that counsel forthe defendant referred to the passage in van der Noll which said that it was only ifthe insurer failed to form a valid opinion taking the above principles into accountthat the Court would be entitled to determine the matter itself based on all theevidence available. Counsel for the defendant also referred the Court to thecommentary in Colinvaux's Law of Insurance in New Zealand which stated that theCourt cannot substitute its own view for that of an insurer unless the insurer can beshown to have adopted an unreasonable view and that:196It follows that if the assured wishes to overturn the decision which is in thediscretion of the insurer, the onus is on the assured to show that theconclusion contended for by them was the only reasonable conclusion.[254] In closing, counsel for the plaintiff adopted a somewhat different position onthe issue of whether the three principles drawn from van der Noll applied. Shesubmitted that this case was not on all fours with van der Noll and asserted that vander Noll turned on the issue of "an insurer having to make a reasonable decision where the benefit entitlement is dependent on the opinion of the insurer". It wassubmitted that in this case there was no question of the insurer having to form anopinion and the simple question was whether the plaintiff met the criteria stipulatedin cl 2.2.b of the policy and, if not, that was a breach of contract.[255] As I read the decisions in van der Noll and Percy, the approach taken by theCourt in those cases is not limited to cases where an insurer had to be "satisfied" or"form an opinion". However, in case I am wrong in this conclusion, I will also makefindings of fact as to whether, in my view, Dr Juhasz was capable of working morethan 40 hours per week and whether she earned more than 75 per cent of her pre-disability income.[256] I intend to approach this case by answering the following four questions:(a) Did MAS frame and determine the correct question with reference tothe terms of the policy and on the facts;196 Merkin and Nicoll (eds) Colinvaux's Law of Insurance in New Zealand (online loose leaf ed,Thomson Reuters) at [7.2(5)].(b) Did the experts relied upon by MAS have all of the informationrelevant to the expert's opinion and did the experts asked the rightquestions;(c) Did MAS act in good faith, having due regard to the interests of theplaintiff; and(d) Did MAS reach a decision reasonably open to it?(a) The correct questions under the policy[257] The starting point is whether MAS considered and determined the correctquestion with reference to the terms of the policy.[258] I find that the correct questions are:(a) Was Dr Juhasz incapable of working for more than 40 hours per weekby reason of her disability?(b) Was she earning (other than on isolated occasions) a Weekly Incomemore than 75 per cent of her Pre-Disability Income?[259] Answering these questions involves a consideration of what MAS askedDr Kenny to do and what conclusion Dr Kenny came to in his report.[260] By letter of 23 June 2015 MAS advised Dr Kenny that the purpose of theassessment that it wanted him to undertake of Dr Juhasz was to understandDr Juhasz's current work capacity and whether, with optimal treatment andrehabilitation, Dr Juhasz could increase her capacity to consistently work beyond40 hours per week.197[261] Dr Kenny's report expressed views that Dr Juhasz was, as at the date ofassessment, undertaking surgical operating and clinical work comprising at least30 hours per week with an additional approximately 10 hours per week of DHB197 ABD Vol 1 at 98.contract work (ESC), work with Breast Screen Aotearoa and participation in theafterhours on-call.[262] Dr Kenny also advised that Dr Juhasz was continuing to perform all of hernormal expected operative and clinical duties and that there were no reports of anyerrors, omissions or other impairment in the performance of her professional duties.Dr Kenny also reported that Dr Juhasz had told him that she believed she workedapproximately 42 hours per week.[263] Therefore, subject to a consideration of whether Dr Kenny's report wasdefective because he either did not have relevant information or acted uponirrelevant information, MAS has asked the right questions.Incapable of working for more than 40 hours per week[264] There are three related but distinct factual assessments which affect thequestion of work capacity. These are:(a) What constitutes "actual work" for a surgeon in the public/privatesector?(b) What "actual work" was Dr Juhasz doing?(c) What "actual work" did Dr Juhasz have the capacity to do for thepurposes of the policy?[265] This final question is the crux of the issue; a consideration of what Dr Juhaszhad the capacity to do is different to considering what she actually did."Actual work"[266] After hearing from Dr Juhasz extensively I find that her account of the hoursshe worked was coloured by her perception of what "actual work" involved. Shefocused on hours of actual physical exertion and ignored the less strenuous forms ofwork activity such as being available on-call, providing advice and supervision inperson or by phone, teaching, or undertaking CME.[267] The concept of "work" is clearly not limited to only those tasks involvingphysical exertion. Activities such as sleepovers were recognised by the Court ofAppeal as being work which was required to be paid for in accordance with theminimum wage rate.198[268] In the case of New Zealand Fire Service Commission v New ZealandProfessional Firefighters Union the Court of Appeal held that whether or not aparticular activity or constraint on an employee's freedom amounted to work was an"intensely practical question".199 The Court of Appeal has subsequently upheld theEmployment Court's formulation that the factual inquiry involve three differentheadings:200(a) The constraints on the employee — the greater the degree ofconstraint, the more likely it is that the period of constraint ought tobe regarded as "work".(b) The nature and extent of responsibility on employee — the greaterand more extensive the responsibilities, the more likely it is that theperiod in question ought to be regarded as "work".(c) The benefit to the employer of having the employee assume the rolein question — the greater the importance to the employer and themore critical the role is to the employer, the more likely it is that theperiod in question ought to be regarded as "work".[269] When measured against those criteria it is clear that the work component ofthe on-call roster was significantly greater than the physical hours that Dr Juhaszmight have been required to attend at the hospital during any on-call periods.[270] There were clearly significant constraints on the private activities thatDr Juhasz could undertake during those periods of time she was on-call: she had to198 Idea Services Ltd v Dickson [2011] 2 NZLR 522.199 New Zealand Fire Service Commission v New Zealand Professional Firefighters Union [2007]2 NZLR 356 at [12].200 Idea Services Ltd v Dickson [2011] 2 NZLR 522 at [10] affirming the Employment Court in IdeaServices Ltd v Dickson; Dickson v Idea Services Ltd (2009) 6 NZELR 666 at [65]–[69].be contactable, she had to be available to attend at the hospital at short notice and,for potentially extended periods of time; she had to be available to give guidance andsupervision by telephone and she had to refrain from engaging in any activities thatwould impair her ability, at a moment's notice, to carry out complex and responsibletasks. Most obviously, this would limit things like the ability to consume alcoholbut, as actually occurred in Dr Juhasz's case, it meant a reduction in the medicationsthat she was receiving so that she was in a fit state to be able to drive herself into thehospital and undertake complex tasks.[271] The nature of the responsibilities during the on-call period were significant.There were obviously a substantial benefit to the employer in having Dr Juhaszavailable on-call. It meant that the Department of General Surgery could operatewith a smaller number of surgeons than would have been required if there had beenno on-call system and the Department had to be fully staffed at all times in order tobe able to cope with possible emergencies.[272] The fact that Dr Juhasz had the impression that her colleagues regarded theon-call obligation as being a "bad" or onerous component of the work activity of ageneral surgeon is consistent with a description of it as work. But the mostimportant point is the fact that being on the on-call roster was paid for by WDHB notjust on the basis of the participants in the roster being remunerated for those hoursthat they actually attended at the hospital but on a basis which reflected theimpositions on the participants over the duration of the on-call period.[273] At the time that Dr Juhasz commenced on the on-call roster the annualpayment was $82,619. Her base hourly rate at that time was $101.63. If that baserate is divided into $82,619 it produces a figure of 812.94 hours of work annually oran average of 15.63 hours per week.[274] The remuneration for on-call work is not a random figure plucked from theair but the product of specific negotiations. Dr Juhasz was a member of theAssociation of Salaried Medical Specialist (ASMS) and subject to the collectiveagreement negotiated by the ASMS with the New Zealand District Health Boardscovering the period 1 July 2013 until 30 June 2016 (the collective agreement).201[275] Clause 13 of the collective agreement addresses issues such as hours of work,job-size and remuneration for on-call duties. Clause 13.1 provides:An employee's hours of work and job size shall be mutually agreed and shallobjectively reflect the requirements of the service and the time reasonablyrequired for the employee to complete their agreed duties andresponsibilities, as set out in their job description.[276] Clause 13.2 specifically includes among hours of work:Rostered after hours' on-call duties, including telephone consultations andother relevant discussions.[277] Clause 13.3(a) of the agreement provides that the hourly rate for on-call workis "time-and-a-half their ordinary hourly rate".202[278] Therefore, in accordance with the detailed provisions set out in the collectiveagreement, WDHB had contracted with Dr Juhasz's union to pay her, in respect ofthe on-call roster participation, a sum the equivalent to just over 10 hours per weekpaid at rate-and-a-half.Dr Juhasz's estimated work hours incomplete[279] I note that Dr Juhasz's perception of what constituted "actual work" affectedher recording of her hours. I find that Dr Juhasz did not accurately record the hoursthat she worked. The key examples of this were:(a) Dr Juhasz sought and obtained clearance to undertake on-call work inthe evenings in relation to her own patients from her rostered work.This was additional to the 72 on-call roster hours and her job-sizedrole. The time spent on such activities was not recorded or accountedfor by Dr Juhasz.201 ABD vol 4 at 1578.202 ABD vol 4 at 1592.(b) Dr Juhasz's ESC contract clearly imposed an obligation upon her, inaddition to undertaking the surgical procedures, to do pre-admissionand post-operative care. Nowhere has Dr Juhasz estimated a figurefor those hours in her calculation of hours worked.(c) Dr Juhasz did not record time she spent both teaching registrars andher CME obligation. No time is allocated for these in the job-sizedrole but they are obligations that were and are clearly undertaken aswork.[280] Having found this, I disagree with counsel for the plaintiff that it was"axiomatic" that Dr Juhasz was in the best position to indicate what work she did. Inaddition to the above work obligations not being accurately recorded, Dr Juhasz'srecollections of the work she was doing have changed. That is most obvious inrelation to the various iterations of her Outlook calendars but even the statutorydeclaration that she provided differed from the evidence that she produced athearing.[281] The conclusion I have drawn from this evidence in its entirety is thatDr Juhasz was, intentionally or not, prone to understatement. A key example is whenshe informed MAS that there might be a "slight increase" in her on-call work in2015 when she knew she had agreed to participate not only in the full on-call rosterfor which she was to receive additional remuneration in a sum greater than 50 percent of her then base salary, but also to do afterhours call work in relation to her ownpatients. She was, in reality, going from not participating in the on-call roster at allto participating in an obligation that her colleagues regarded as onerous and beingone of the 'bad' aspects of the role of general surgeon at WDHB.Claimed underperformance[282] The second factual issue is whether Dr Juhasz was fulfilling her job-sizedrole. Much of the evidence tendered by Dr Juhasz was designed to establish that shedid not always undertake all of the duties specified in her job-sized role.[283] I accept that there was an element of flexibility around how Dr Juhaszdischarged the job-sized role. There were times when surgical lists were unable tobe undertaken because of difficulties with theatre space. However, I find thatDr Juhasz made up for those lost hours by "backfilling". In other words, sheundertook other surgical lists that were not part of her job-sized role nor were theyalways scheduled in her outlook calendars. I find that she did this work regularly.[284] Although Dr Juhasz tried to minimise the evidence of her own witnessKaren Hellesoe by saying that she was only in her role for a couple of years, I acceptMs Hellesoe's evidence that WDHB was very grateful to Dr Juhasz for assistingthem in undertaking such extra shifts. I also accept Ms Hellesoe's evidence that theDHB had no concerns that Dr Juhasz was not carrying out her responsibilities inaccordance with her job-sized role.[285] As Dr Juhasz's friend and colleague in the general surgery department,Susan Gerred acknowledged, if a senior medical officer was consistently notfulfilling their job-sized role the DHB would be likely to resize the role to reflectwhat was actually being done. That this has not occurred in the present casesupports Ms Hellesoe's evidence that, as far as the DHB was concerned Dr Juhaszwas carrying out her job-sized role.[286] It follows that I don't accept Dr Juhasz's claim that she was not consistentlycarrying out her job-sized role.Capacity[287] Having set out what actual work entails, and how much Dr Juhasz wasundertaking, the crux of the issue is how to go about establishing what Dr Juhasz'scapacity to work was.[288] Dr Juhasz's counsel proposed that the capacity question was not answered byanalysing the "job-size" or asking the basis upon which Dr Juhasz was remunerated.I only partially agree. Capacity is a multi-faceted assessment, to be determined inrelation to the physical work Dr Juhasz was carrying out, as well as what she wascontracted and paid to perform, the supplementary administrative and education-related tasks of the job, and Dr Juhasz's willingness and ability to take on additionaltasks above and beyond her job-sized role.[289] The timetabling of working in public and private practice as a surgeon is acomplex balancing process. I find that Dr Juhasz had undertaken and was balancingthe following work obligations in 2015:(a) Job-sized role (30.5 then 28.9 hours per week from July 2015);(b) ESC contract work (average weekly hours 3.125);203(c) Breast Screen Aotearoa work (4 hours in a 4–6 week cycle plus hour-long weekly MDM);204(d) On-call roster work (72 hour weekend shifts every 14 weeks, 9 hoursMonday–Thursday every 14 weeks following the 72 hour shift, plus15 hours every fourth Tuesday night);205(e) On-call supplementary work in relation to her rostered surgerypatients (hours unspecified); and(f) Teaching and CME (hours unspecified).[290] The ESC and Breast Screen Aotearoa work indicates Dr Juhasz had a highercapacity for work than she had perhaps appreciated. There was no evidence tenderedthat would establish that the undertaking of the Breast Screen Aotearoa clinic or theESC contracting work was something that Dr Juhasz was under any compulsion todo. I find that the she voluntarily assumed this additional work. But, for thepurposes of this case, it does not matter whether she voluntarily assumed this workor was expected to do it. It was clearly work she was undertaking.203 See above at [32].204 See above at[34]–[35].205 See above at [41].[291] I accept that the Breast Screen Aotearoa work involved only a clinic asopposed to the more physically strenuous work of surgery, but undertaking a clinicand attending the related MDM meeting was still work. On the other hand the ESCwork involved two operating sessions per month (and ancillary pre and post-surgicalobligations) with one of the operating sessions being eight hours long and the otherfour hours. Even though these sessions only occurred once every two weeks theyclearly involved the most physically strenuous type of work that a general surgeoncould undertake, namely carrying out surgery for a full day on one occasion and ahalf-day on the other occasion. It is improbable that Dr Juhasz would havevoluntarily assumed this extra obligation if she felt she was unable to undertake allof her separate job-sized role.[292] I accept that the remuneration for the ESC work was approximately 10 timesgreater than the assessed hourly rate for Dr Juhasz's job-sized role and that this maywell have provided a financial incentive for Dr Juhasz to undertake these additionalresponsibilities, but cannot accept that WDHB would have permitted Dr Juhasz toundertake such additional contracting work if it thought that she was not able tocarry out the job-sized role she was being paid for.[293] In relation to the on-call work (both participation in the on-call roster and theafterhours work she took on) I find that it was Dr Juhasz's initiative to add theseadditional responsibilities to her workload. Not all the general surgeons wererequired to participate in the on-call roster and the evidence was that one othergeneral surgeon did not participate in the roster. I infer that the reason for hisexemption was because of his age though no evidence specifically addressed thepoint of why he did not participate in the on-call roster.[294] It is clear that Dr Juhasz wanted to be a fully participating member of theGeneral Surgery Department and to be seen by her colleagues as taking a full shareof her responsibilities including the onerous responsibility of participating in the on-call roster. I find that she did undertake the full load expected of a member of theDepartment. I also find that participation in the on-call roster was "actual work"with the work not being limited to the physical components of the role but alsoincluding the telephone advice, supervision and disruption to normal life.[295] I also believe that the description of Dr Juhasz by her general practitioner,Dr Lipyeat, as "stoic" is likely to be accurate. Although she was in pain, and, attimes, found carrying out her duties to be difficult, I find that she persevered. Whenshe wanted to do something she did not let the pain stop her from doing that. That isconsistent with the fact that although Dr Juhasz was saying that she was using heraccrued annual leave entitlement to manage her disability, she voluntarily went to theSolomon Islands and undertook seven days of work as a general surgeon during herleave period and she did this notwithstanding the level of pain she was experiencing,because it was something that she wanted to do.[296] Having regard to all these factors, and the amount of "actual work" Dr Juhaszwas undertaking, I find that she was not incapable of working 40 hours a week.While her pain and suffering were real, and they prevented her from returning to thesort of hours and operations she performed pre-disability, they did not render herincapable of working 40 hours as required in the policy.[297] An alternative reliable measure and consideration in ascertaining Dr Juhasz'sworking capacity is to consider what work her employer was paying her to do. Inthis exercise the starting point is the agreement that records the terms of Dr Juhasz'semployment, namely the multi-employer collective agreement with ASMS. Pursuantto that document, in relation to her participation in the on-call roster, Dr Juhasz wasbeing paid for work agreed to be a little over 10 hours per week at a rate of time-and-a-half. When that is added to the 30 hours per week of the job-sized role it comes to40 hours per week. To that must also be added the Breast Screen Aotearoa work andthe ESC contract work. By that measure Dr Juhasz is being paid for well over40 hours per week.[298] I endorse the approach of Mr Jordan. The fact that Dr Juhasz might not, inany particular week, undertake all of the tasks in her job-sized role (whether becauseof unavailability of theatres or for any other reason) or that she might not undertakefull on-call duties is irrelevant to her work capacity. By agreeing to undertake thoseduties, and being remunerated as if she had undertaken those duties, Dr Juhaszclearly has the capability of carrying out those duties.Weekly income calculations[299] Having found that Dr Juhasz was not incapable of working more than40 hours per week, I address the income factor for completeness only.[300] The starting point is the wording in the policy. The concept of a WeeklyIncome is defined in the policy as being: the income earned each week, after deduction of business expensesnecessarily incurred in earning that income but before personal deductionsand income tax. Weekly Income includes the following:• Salary; and• Wages; and• Package fringe benefits; and• Commissions; and• Bonuses; and• Superannuation contributions.If you are self-employed, for example, as a sole trader or as a partner in abusiness, Weekly Income also includes your share of the net profit (or loss) ofthe business (after deduction of necessarily incurred business expense).Weekly Income does not include unearned income such as investmentincome, interest, rental income or proceeds from the sale of assets.[301] Counsel for Dr Juhasz submitted that because MAS calculated Dr Juhasz'sPartial Disability entitlement on the basis of taking the total amount earned in aperiod, dividing it by the number of weeks in that period and attributing the productof that equation as "weekly income" for the purposes of benefit calculation, thismeant that there should be an averaging of the income earned by Dr Juhasz for thepurposes of calculating whether she exceeded 75 per cent of her pre-disabilityweekly income.[302] This submission confuses two different concepts. The basis upon whichbenefits are calculated and paid is a different exercise to analysing whether, inaccordance with the definition of weekly income and the policy, in any given weekincome exceeds pre-disability weekly income. Such an approach would also involvethe Court adding the word "average" to the concept "weekly income" so that it read"[average] weekly income". Other than for anticipating adjustments for thededuction of necessarily incurred business expenses incurred by the self-employed,the policy definition of "weekly income" does not provide for averaging.[303] It is common ground that Dr Juhasz's annual income has never reached75 per cent of her Pre-Disability Income. However the test under the policy is theweekly income.[304] The assessment of whether or not Dr Juhasz was earning 75 per cent or moreof her Pre-Disability Income requires an intensely factual analysis. The parties didnot provide the full amount of information before the Court which would have aidedin assessing precisely when and on what basis Dr Juhasz's income spiked semi-regularly above the policy threshold. I will set out my analysis (as it is) below.[305] The starting issue was that the two expert accountant witnesses undertookincome analysis for different periods. Mr Taylor for the plaintiffs surveyedDr Juhasz's income from 7 June 2015 until 18 December 2016 (a period of82 weeks) and found in 19 of those weeks surveyed her income exceeded 75 per cent(23 per cent of the period assessed).[306] Mr Jordan for the defendant assessed between 14 December 2014 and14 December 2016 that she had exceeded the 75per cent threshold on 23 occasions(22 per cent of the period assessed). Mr Jordan in evidence explained that if headjusted his calculations to observe the same time period as Mr Taylor, both agreedthat there were 19 weeks where Dr Juhasz's income exceeded 75 per cent of her Pre-Disability Income.[307] The question becomes one of competing percentages and what qualifies forthe purpose of the policy. For just under a quarter of the weeks in both periodssurveyed Dr Juhasz was earning above the policy threshold.[308] Another way of looking at this is that the second plaintiff was invoiced forprivate contracting work 45 times in a two year period (under Mr Jordan's analysisof December 2014 to December 2016). Twenty-three of those times (or 51 per centof the time) the amount invoiced tipped Dr Juhasz's income over the 75 per centthreshold.[309] Together, these percentages are sufficient to convince me that for thepurposes of the policy Dr Juhasz was earning above the threshold. I am satisfiedthat, during the periods of time analysed by the two experts there were regularoccasions when Dr Juhasz's income exceeded 75 per cent of her Weekly Pre-Disability Income. A one-off or isolated occurrence of exceeding 75 per cent wouldnot disentitle Dr Juhasz from the benefit, but regularly doing that over an extendedperiod does. I am not prepared to add words to the definition used in the policy sothat it refers to exceeding 75 per cent over an averaged period.(b) Did the expert have all the relevant information?[310] The principal expert relied on by MAS in determining the question ofwhether Dr Juhasz was incapable of working more than 40 hours per week as a resultof her disability in 2015 was Dr Kenny. At the hearing, MAS also relied on analysisundertaken by a Mr Jordan as being confirmatory of the conclusion that Dr Juhaszwas not incapable of working more than 40 hours per week because she had actuallyworked more than 40 hours per week.[311] Dr Kenny acquired relevant information about Dr Juhasz's work capacity byhis contact with her over several years. That contact included assessing her in 2014and approving her requests to participate in the on-call roster and undertakeafterhours work in relation to her own patients.[312] In relation to the number of hours of work that Dr Juhasz was capable ofworking in 2015, it is necessary to understand what information was provided toDr Kenny at the 29 June interview. This involves making some credibility findings.[313] Dr Juhasz's account of the questions asked by Dr Kenny and her response hasvaried. I have set out at [76]–[96] above Dr Juhasz's various accounts of what shecommunicated to Dr Kenny. Her initial response in September 2015 was that whilethe substance of the report was correct, there were "inaccuracies with the hoursworked". In November 2015 she alleged that she had offered to write down her day-to-day hours for Dr Kenny and was rebuffed. In December 2015 she communicatedher allegations of misconduct against Dr Kenny to MAS.[314] In an email dated 16 January 2016 she wrote to Ms Unuka on confirming:206As I have said before Courtenay Kenny did not specifically go into thesessions or hours worked. His report is flawed.[315] This is irreconcilable with her previous and subsequent assertions. On1 October 2015 by email to MAS Dr Juhasz said "[m]y hours are quite different towhat he has documented (I am not sure why as I went over my schedule with him indetail)" 207 while at the hearing she said "[he] kept on asking me about my variousclinics and commitments. I listed what I was doing, but he kept getting it wrong".208[316] When questioned about the notes recorded by Dr Kenny regarding her hoursof work Dr Juhasz said "some of it's accurate but some of it isn't".209 Dr Juhaszdenied having told Dr Kenny that she worked 40 or 42 hours per week.[317] Dr Kenny was cross-examined extensively on the notes that he made at the29 June interview. He denied that Dr Juhasz had ever offered to write her hoursdown or that he declined such an invitation. He said he was confident that what shetold him was absolutely what he had written in his notes. He indicated that he hadmade changes to his notes at the time to reflect some corrections she had made. Hesaid that the majority of the time in relation to this consultation was spent aroundDr Juhasz working hours and activities because he already had great detail aroundthe health issues underlying her problems.[318] He confirmed that he had obtained an understanding of Dr Juhasz's workinghours and activities by a question and answer technique. He said in evidence, inresponse to a question as to whether there was interchange between the two of them:Yes, certainly, I mean it's a question and answer and I think that's evidentfrom my scribblings out occasionally here where I had written down "ESCall day Monday", and then she'd said "no, no" maybe it's the DHB all dayMonday.210206 ABD vol 1 at 170.207 Vol 1 ABD p 126.208 Juhasz BoE at [7.5].209 NOE at 28, line 1.210 NOE at 201, line 8.[319] In cross-examination Dr Kenny said that he didn't realise until the day thatthe hearing started the significance of the 40 hours per week figure in terms of thebenefit entitlement.[320] Dr Kenny said that Dr Juhasz had talked in terms of her work being 40 or42 hours a week on average which he said was consistent with the detailed hours sheprovided to him and his own cross-check against the other information available tohim.[321] I find that Dr Kenny's account of the interview is more likely to be accurate.Although the letter to him from MAS referred to a question of her 40 hours work perweek, Dr Kenny did not understand the particular significance of the 40 hour figurein terms of the policy benefit entitlement.[322] I accept Dr Kenny's evidence that the focus of the meeting was on himquestioning Dr Juhasz about the particular hours and duties she was undertaking. Iam satisfied that this involved the question and answer process with Dr Juhaszhaving corrected a couple of instances where Dr Kenny had initially written downsomething she did not think was accurate. While Dr Kenny's handwritten notes arenot his report (indeed MAS never saw his handwritten notes at any time prior tomaking its decision on his report) I am satisfied that they are consistent with hisstatements that he questioned Dr Juhasz closely about her hours of work and jobcontent and accurately recorded what she said.[323] I accept his evidence that Dr Juhasz did not offer to write down her hours ofwork and neither did he refuse that offer. I also accept his evidence where he deniesDr Juhasz claim that he made lots of errors and failed or refused to correct them.The handwritten corrections to his notes show that he was open to makingcorrections to what Dr Juhasz has told him.[324] I also prefer Dr Kenny's evidence on the issue of whether or not Dr Juhasztold him that she was working 40 or 42 hours average per week.[325] I find that, at the meeting, Dr Juhasz wasn't particularly concerned that, as aresult of the meeting, MAS might find that she was capable of working 40 or morehours per week and therefore ineligible to continue to receive her Partial Disabilitybenefit. Instead she was "concerned that if he knew how unwell I was then he wouldsay I was not fit for work".211 I find that she is therefore likely to have wanted toconvey the impression that there were no problems with the hours she was working.That would also be consistent with her not telling Dr Kenny that she wasn't fulfillingall of her job-sized role.[326] I find that Dr Kenny did accurately record what Dr Juhasz told him and thathe accurately summarised that in his report to MAS.Challenges to relevant information[327] I also need to consider whether this conclusion should be affected by whathappened subsequently, in particular, the submission by Dr Juhasz to MAS of aschedule of hours and duties that conflicted with the account she had given toDr Kenny and Dr Kenny's report to MAS. As well as providing a different scheduleof hours and duties Dr Juhasz also acknowledged that she had not told Dr Kenny thatshe was not fulfilling the 30 hours of her job-sized role.[328] I find that, in circumstances where Dr Juhasz was asking MAS to disregardDr Kenny's report on the basis that it was not accurate then it was reasonable forMAS to ask Dr Juhasz to engage directly with Dr Kenny so that he could, if hethought fit, amend his report.[329] The next question I have to determine is whether or not the grounds advancedby Dr Juhasz for not engaging with Dr Kenny to amend the report are reasonable.[330] The reasons that Dr Juhasz gave MAS for not wanting to approach Dr Kennydirectly varied. Initially it was because of a perceived possible conflict of interestgiven that Dr Kenny was also employed by WDHB. It is difficult to see that any211 Juhasz BoE at [7.4] is a more accurate reflection of her state of mind.actual conflict of interest existed or how anything Dr Kenny reported to MAS couldbe used by WDHB to Dr Juhasz's disadvantage.[331] I think there are likely to be two components to why Dr Juhasz chose to rejectMAS's invitation that she approached Dr Kenny to "correct" the information in hisreport. Firstly, she saw Dr Kenny as siding with those of the clinicians who hadtreated her and formed a view that her pain problem was not caused by an infection.In her email to Ms Unuka of 16 December 2015 Dr Juhasz claims that Dr Kennycould not change his opinion as to whether the cause of her pain was an infection"without losing face" and implies that this somehow renders his assessment of herwork capacity unreliable. This claim does not make sense. Dr Kenny had not beentasked by MAS with determining the cause of her pain and his opinion on that wasirrelevant to the issue whether she had capacity to work more than 40 hours perweek.[332] More significantly, she harboured a view that Dr Kenny had both committeda gross breach of privacy and had conspired with one of her colleagues to attempt tohave her employment with WDHB terminated.[333] The allegations of breach of privacy and conspiracy are serious. They werenot contained in Dr Juhasz's evidence-in-chief but emerged during the course ofcross-examination. However, significantly, they were not put to Dr Kenny byDr Juhasz's counsel during cross-examination. I therefore cannot give them anyweight.[334] My conclusion is that Dr Juhasz had no legitimate reason for refusing MAS'sinvitation to approach Dr Kenny in order to get him to correct what she said wereerrors of fact in his report. She was not treated unfairly by MAS in this regard.[335] Although the decision to cease payments of the partial disability benefit wasmade on the basis of Dr Kenny's report, at the hearing MAS also called Barry Jordanwho, in addition to giving evidence about Dr Juhasz's income, also gave evidence asto whether she was capable of working 40 hours per week or more. AlthoughMr Jordan's conclusion was the same as Dr Kenny's he approached the matter by aslightly different route focusing on the concept of "capacity" and having significantregard to what WDHB paid Dr Juhasz to do rather than what she actually did. Thatevidence was consistent with Dr Kenny's conclusion that Dr Juhasz was notincapable of working 40 hours per week or more.(c) Did MAS act in good faith in having due regard for the interests ofDr Juhasz?[336] Dr Juhasz's counsel criticised a number of aspects of MAS's actions. It wasnoted that although the letter of instruction to Dr Kenny in relation to the June 2015interview tasked Dr Kenny with obtaining "full details of Dr Juhasz's current workcommitments across her public and private work, including hours per week andduties performed",212 MAS had not provided Dr Juhasz with a copy of this letterwith the result that Dr Juhasz "simply did not know that this would be a focus" andwas thereby deprived of an opportunity to "have prepared a clear and concise outlineof her hours and duties".213[337] Although it is clear that Dr Juhasz was not provided with a copy of the letterof instruction sent by MAS to Dr Kenny, she had been informed, by email of26 February 2015214 that the purpose of the meeting with Dr Kenny was "for MAS'sbenefit" and that "it would be a good opportunity for us to get a snapshot of whereyou are currently at" and "what could reasonably be expected to change, includingexploring what interventions may have a positive impact on your work capacity".215Getting a "snapshot" of where Dr Juhasz was at could reasonably be understood aswanting to know what hours she was working or what her responsibilities were andwhether there was any prospects of a change to what MAS understood the status quoto be.[338] I do not accept the assertion that Dr Juhasz was limited in her ability tooutline her hours and duties. She was questioned at length about these by Dr Kennyand did not appear to have any difficulty in expressing herself to him on this issue.212 ABD vol 1 at 98.213 Plaintiffs' closing submissions at [5.9].214 ABD vol 1 at 68.215 At 68.[339] MAS were also criticised for giving Dr Juhasz what was said to be "mixedmessages" about "what was going on in terms of her benefit entitlement". Counselfor the plaintiff said that it was nearly three months after the consultation beforeMAS even signalled to Dr Juhasz that there was an issue.[340] The delay is entirely explicable. The evidence was that the report was notreceived by MAS until 3 August 2015.216 The report was discussed by Ms Unukawith her manager and was then referred to by MAS to its reinsurer for review andinput and then Dr Juhasz was contacted by email on 23 September 2015 to discussthe matter.217[341] When Dr Juhasz was unavailable to discuss with Ms Unuka as requested,Ms Unuka emailed the Kenny report to Dr Juhasz on 28 September 2015 with acovering letter which conveyed the message that, as a result of the information in thereport around the hours Dr Juhasz was working, support under the policy had cometo an end.[342] I note that by email of 1 October 2015, Ms Unuka also drew to Dr Juhasz'sattention the recurrent claim provisions within the policy.218[343] The email from Ms Unuka to Dr Juhasz of 28 September 2017 clearly saidthat "support under the policy has come to an end". I therefore reject the submissionof the plaintiffs' counsel that it "had taken MAS just three days short of six monthssince the Kenny consultation to communicate its position and by the time the sixmonth window for any Recurrent Benefit claim to be advanced and closed".219 I alsodo not accept Dr Juhasz's contention that there was a deliberate strategy by MAS todelay providing her with information so as to adversely affect her ability to claim aRecurrent Benefit. The communication from MAS in both September and Octoberconsistently included an invitation for Dr Juhasz to discuss the matter withMs Unuka. It was unfortunate that Dr Juhasz was overseas and unable toimmediately take that opportunity up but that was not MAS's fault.216 Unuka BoE at [29]..217 At [30]–[31].218 ABD vol 1 at 126.219 Plaintiff's closing submissions at [5.11][344] A further criticism made by counsel for Dr Juhasz was:In that six month period the only inquiry made in relation to the actual hoursDr Juhasz worked was a call to Dr Kenny on 16 December 2015 Not asingle inquiry was made to the WDHB about the hours Dr Juhasz hasworked in that time.[345] MAS had instructed its expert Dr Kenny. It was were entitled to rely on hisexpertise. It was not for MAS to engage in investigations of its own into the samematter that it had retained Dr Kenny to investigate. As I have already found, it wasreasonable of MAS to invite Dr Juhasz to contact Dr Kenny directly to raise withhim such corrections as she believed may be required to his report.[346] In the situation where Dr Juhasz has refused to do that, it was reasonable ofMAS to ask Dr Kenny to confirm the accuracy of the facts upon which he based hisreport.[347] The submissions of counsel for Dr Juhasz has referred also to the statutorydeclaration Dr Juhasz made on 7 April 2016 and implies that there was somethingunreasonable in MAS not altering their position upon receipt of it. The statutorydeclaration contained information that was different to Dr Juhasz's prior position asto her hours of work and, as it happens, to the position she ultimately adopted at thehearing. It also differed from her September 2017 brief where she acknowledgedhaving worked 40 hours in one week in 2015 and one in 2016.220 There is no reasonwhy MAS's failure, upon receipt of a statutory declaration, to alter its positionresulted in MAS not dealing with Dr Juhasz "fairly and openly".[348] The timing of the email of 24 December 2015 conveying the informationthat, after a review, MAS was not altering its position was unfortunate but, asMs Unuka put it, was better than delaying further over the Christmas break.[349] I therefore find that MAS dealt with Dr Juhasz fairly and had regard for herinterests.220 Juhasz BoE in reply at [20].(d) A decision reasonably open to it[350] I have found, in accordance with the principles laid down in van der Noll vSovereign Assurance Co Ltd221 and Percy v Sovereign Assurance Co Ltd222 and thequestions formulated at [256] above, that:(a) MAS framed the correct question in terms of Dr Juhasz's capacity.(b) MAS, utilising the expert evidence of Dr Kenny, correctly determinedthe question of Dr Juhasz's capacity to work.(c) Dr Kenny asked the correct questions to Dr Juhasz in the June 2015interview, and was entitled to rely on the information he received.(d) MAS acted in good faith in engaging with Dr Juhasz after theDr Kenny report was provided and making opportunities available toher to amend it.(e) MAS reached a decision reasonably open to it on the facts as set outby its expert.[351] As is clear from my analysis above, determining what Dr Juhasz had thecapacity to do is a different exercise to inquiring as to what physical tasks sheundertook.[352] Accordingly I decline to grant the declaration sought by Dr Juhasz and theclaim for damages, interest and recovery of the insurance policy premium of$24,623.04.The counterclaim[353] The counterclaim by MAS was based on the fact that the second plaintiff hadbeen unjustly enriched by receipt of a Partial Disability benefit in the sum of$46,539.53 between the period 1 March 2015 to 31 May 2015 at a time when the221 van der Noll v Sovereign Assurance Co. Limited [2013] NZHC 3051.222 Percy v Sovereign Assurance Co Ltd [2014] NZHC 1573.first plaintiff did not qualify because she was regularly earning a Weekly Income ofmore than 75 per cent of her Pre-Disability Income and was capable of and even onher own admission had on occasion, worked more than 40 hours per week.[354] It was alleged that it was only following receipt of the Kenny report andcertain specified additional information that the defendant became aware that theplaintiff's circumstances were not what they had been led to believe and that she hadnot been eligible since 1 March 2015 to receive the Partial Disability benefit.[355] By way of defence to the counterclaim, the plaintiffs allege that the benefitwas paid by the defendant following the complete disclosure of all informationrequested by the defendant in circumstances such that the defendant is estopped fromasserting, that it was, in any way, mistaken in relation to:(a) the hours worked by the first plaintiff; and(b) the income received by the first and/or second plaintiff.[356] It was also alleged that because the first plaintiff worked "on average, lessthan 40 hours per week [and] was not capable of regularly working more than40 hours per week" the plaintiff met the policy definition of being incapable ofworking for more than 40 hours per week. It was alleged that the defendant wasestopped from taking any approach other than "averaging earnings and hours over anextended period" in assessing whether the entitlement to be paid a Partial Disabilitybenefit existed.[357] The estoppel argument would appear to relate more to the issue of calculatingthe Weekly Income as less than 75 per cent of the Pre-Disability Income rather thanwhether the first plaintiff had the capacity to work more than 40 hours per week.[358] The defendant submitted that a claim of unjust enrichment required:223• proof of the enrichment of the plaintiff by receipt of the benefit;223 National Bank of New Zealand Ltd v Waitaki International Processing (NI) Ltd [1997] 1 NZLR724 (HC) at 728.• the enrichment was at the expense of the defendant; and• that the retention of the enrichment is unjust.[359] The defendant acknowledged that estoppel was a defence to unjustenrichment but submitted that fault on the part of the payer was not sufficient to giverise to estoppel.224[360] It was submitted that for an estoppel to be made out there must be arepresentation upon which the person to whom the representation was made reliedand altered their position to their detriment. Such a representation had to beunambiguous. The payment recipient cannot rely on a representation by the payerwhich was the result of a breach or misrepresentation by the recipient.225[361] The plaintiff, in responding to the counterclaim, emphasised that she directedher accountant to provide MAS "whatever information they wanted". It was alsoemphasised that the defendant did not plead breach of the duty of good faith by theplaintiffs. Neither of those submissions are directly relevant to the issue of whetheror not the defendant was in full possession of all relevant facts between the period1 March 2015 and 31 May 2015.[362] Stating that her accountant had been authorised to provide MAS with anyinformation it had asked for was not sufficient, in the case, to ensure that MAS wasin possession of all relevant information.[363] In particular, MAS would not have known that Dr Juhasz was beingremunerated for the ESC contracting work through Eva Juhasz Ltd as opposed toreceiving that remuneration as part of her base salary. It would therefore not haveknown to ask the accountants to provide financial information about the earnings ofEva Juhasz Ltd.224 The defendant relied on General Accident Fire and Life Assurance Corp v National Bank Ltd[1932] NZLR 1289 at 1292 for this proposition.225 Souter v Souter [1923] NZLR 1078, at 1101.[364] The fact that Dr Juhasz, when queried about the ESC payments, activelyrepresented that the remuneration was included within the fortnightly salarypayments also meant that MAS was not in possession of all the relevantinformation.226 When Dr Juhasz was generating the invoices for this work in thename of her company and submitting them for payment herself and receiving thatpayment into the company bank account, it is difficult to understand how she couldgenuinely have believed that the remuneration would have been included in thefortnightly salary.[365] The specific representation by Dr Juhasz to MAS was that there might be a"slight increase" in her on-call responsibilities in 2015. This would not have beensufficient to alert MAS to the very substantial obligation she assumed under the on-call roster as from the start of February 2015. This is all the more so when, in herregular progress reports that she was required to file, Dr Juhasz was consistentlyrepresenting her work obligations as being largely unchanged.227[366] I conclude that it was not until it received Dr Kenny's July report that MASbecame aware of the true nature of Dr Juhasz hours of work and responsibilities.This is not a case such as Kelly v Solari where the insurance company was carelessin checking its records and paid out on a lapsed policy.228 MAS was not careless intaking Dr Juhasz's reports at face value. Those reports did not accurately reflect themagnitude of the on-call roster obligations that Dr Juhasz had commenced inFebruary 2015.[367] I have found that as a fact, once Dr Juhasz commenced the on-call roster, thatwork and her job-sized work meant that she was working and being paid for40 hours per week and that the Breast Screen Aotearoa and ESC work would havepushed her well above 40 hours per week. I am satisfied that MAS did not and couldnot reasonably have known that until receipt of Dr Kenny's July report.[368] It is clear that Dr Juhasz had been working those hours at least from 1 March2015. Accordingly, for the period 1 March 2015 to 31 May 2015 it could not be said226 See above at [54] and [55].227 See above at [47]–[52].228 Kelly v Solari (1841) 9 M & W 54.that Dr Juhasz was incapable of working more than 40 hours per week. On that basisshe was not entitled to receive a Partial Disability benefit.[369] I also find that during the period of 1 March to 31 May Dr Juhasz's incomeregularly spiked above the policy threshold, disentitling her to the benefit.[370] Counsel for the plaintiff conceded that neither Dr Juhasz nor her companyhad altered their position to their detriment upon receipt of the payments so as tocreate an estoppel prohibiting MAS from seeking recovery of this sum. There wasno dispute that the sum involved is $46,539.53.[371] The plaintiffs attempted to argue that unjust enrichment was not a settled andindependent cause of action in New Zealand law.229 This is to misrepresent the basisof the counterclaim. Various academics in New Zealand continue to debate whether"unjust enrichment" ought to constitute a cause of action in its own right. However,the principles of restitution for a wrong are well-settled. Here, the counterclaim isfor restitution of amounts paid by the insurer by mistake. The principled foundationof the counterclaim is that it is unjust for a person to retain a benefit arising out ofsomeone else's mistake. This is a generally accepted and non-contentious position inNew Zealand law.[372] The elements of unjust enrichment as set out in National Bank ofNew Zealand Ltd v Waitaki International Processing (NI) Ltd have been made out.230The enrichment by receipt of a benefit has been proved; the enrichment is at theexpense of MAS and retention of the enrichment is unjust. Accordingly, I find infavour of the defendant in relation to the counterclaim in the sum of $46,539.53.[373] The defendant is entitled to interest on its counterclaim judgment sum of$46,539.53 at five per cent per annum as follows:(a) From 24 June 2015 to the date of payment in respect of $20,537.59;229 Avoiding unjust enrichment's perils: "an Aristotelian conception of justice" The Capital Letter,2 May 2017.230 National Bank of New Zealand Ltd v Waitaki International Processing (NI) Ltd 1 NZLR 724(HC) at 728.and(b) From 28 July 2015 to the date of payment in respect of $26,001.94.Costs[374] The defendant having succeeded in both its defence to the plaintiffs' claimand on its counterclaim is entitled to costs. I invite the parties to agree costs butfailing agreement the defendant is to file a memorandum within 14 days from thedate of this judgment with the plaintiffs having 14 days to reply._____________________________Churchman JSolicitors:Shieff Angland, Auckland for PlaintiffsMahony Burrowes Horner, Wellington for Defendant