FEDERAL COURT OF AUSTRALIA

Edington v Superannuation Complaints Tribunal [2010] FCA 504

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of the Superannuation Complaints Tribunal made on 11 September 2009 be set aside and the matter be remitted to it to be re-considered according to law.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     Mr Edington has appealed against a decision of the Superannuation Complaints Tribunal affirming a decision of the Board of Trustees of the State Public Sector Superannuation Scheme – commonly referred to as the QSuper Scheme – that he was not entitled to a payment from the QSuper Scheme of an insurance benefit for total and permanent disablement for work.

2                     The main issue in Mr Edington’s appeal to this Court is whether the Tribunal properly exercised its power of review of the Trustees’ decision under s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the Act”).

Factual background and procedural history

3                     In about 1994, Mr Edington was diagnosed with schizophrenia.  It is not in dispute that he continues to suffer from this condition.  On 10 September 2001, Mr Edington commenced employment as a field assistant with the Department of Primary Industries (Queensland) in the Fire Ant Eradication Program.  As a result of his employment, Mr Edington joined the QSuper Scheme.  He acquired four insurance units effective from 10 September 2001 and a further seventeen units effective from 10 December 2001.

4                     On 2 January 2002, in the course of his employment, Mr Edington entered a property in Brisbane to inspect it for fire ants.  There was some dispute about exactly how this incident occurred, but it was recorded in one of the earlier decisions in the following terms.  While he was on the property, two rottweiler dogs ran towards him.  To escape the dogs, he ran to the front gate and jumped over it.  In the process, he fell and injured his back and his right foot.  Mr Edington subsequently claimed to have suffered an injury to his right foot and either post traumatic stress disorder (“PTSD”), or an anxiety disorder, as a result of this incident.

5                     He ceased work on 8 July 2002 and thereafter applied for, and received, income protection payments from 26 July 2002 to 23 June 2003.  On 12 February 2003, he applied to the QSuper Scheme for a total and permanent disability benefit.

6                     On 26 May 2003, a delegate of the Board of Trustees of the QSuper Scheme determined that, as a result of the foot injury he sustained in the dog incident, Mr Edington was not suffering from a disability that rendered him incapable of discharging his duties and he was therefore not entitled to continue to receive income protection payments after 23 June 2003.  At the same time, the delegate determined that, as a result of his schizophrenia condition, Mr Edington was unlikely to ever be able to work again in a job for which he was reasonably qualified by education training and experience and he was therefore considered to be totally and permanently disabled for the purpose of retirement on the grounds of ill health.  However, because the delegate concluded that the evidence did not establish that his schizophrenia condition was not related to a medical condition existing before he became a member of the QSuper Scheme, the delegate determined he was not entitled to be paid a total and permanent disability insurance benefit.

7                     On the same day as the delegate made these determinations, Ms O’Brien, the responsible Case Manager at QSuper, wrote to Mr Lane, a Human Relations Consultant in the Department of Primary Industries, advising him that:

QSuper has reviewed the extent and permanency of Mr Edington’s incapacity.  Sufficient medical evidence has been received to establish that he is unlikely to ever be able to work in a job for which he is reasonably qualified by education, training or experience, due to a “medical condition”.  As per the QSuper trust deed and Insurance Terms, he is entitled to a total and permanent disability benefit upon termination of his employment.

8                     Mr McCubbin, from that Department, replied to Ms O’Brien’s letter on 3 June 2003.  In his letter he referred to Ms O’Brien’s advice about Mr Edington’s entitlement to receive a total and permanent disablement benefit on his retirement and advised that:  “In accordance with s.85 of the Public Service Act 1996 Mr Edington will be retired from his position as Field Assistant (OO2), as at COB 23 June 2003”.

9                     In 2003 and 2004, Mr Edington lodged, withdrew and then renewed an application to the Board of Trustees of QSuper seeking a review of the delegate’s decision refusing him a total and permanent disablement insurance benefit.  On 26 August 2004, the Board of Trustees decided to affirm the delegate’s decision.  Mr Edington then lodged a complaint against that decision with the Tribunal and, on 2 October 2006, the Tribunal decided to affirm the Board’s decision.  Mr Edington then lodged an appeal against the Tribunal’s decision with this Court and that appeal was dismissed on 14 December 2007:  see [2007] FCA 1989.  Mr Edington then appealed that decision to the Full Court.

10                  On 15 August 2008, with the consent of the parties, the Full Court allowed Mr Edington’s appeal; set aside that earlier decision of the Tribunal; and remitted the matter to the Board of Trustees to be reconsidered according to law:  see [2008] FCAFC 78.  The error of law that the parties agreed the Tribunal made was that:  “… there was no logical basis, having regard to the evidence, for the Tribunal’s conclusion that a relationship had been demonstrated between the appellant’s schizophrenia as a pre-existing medical condition and the post-traumatic stress disorder, which was the basis of the claim under the relevant policy”:  see at [3].  The Full Court added:  “… we are satisfied that it is proper to make the orders sought.  The consequence will be that the matter will go back to the Board, at which time the report of Dr De Leacy that was not before the Board when it made its decision, will be before the Board and it can make a decision fully informed about the evidence relevant to the appellant’s condition”:  see at [4].  Since Dr De Leacy has only produced one report, the Full Court must have been referring to his report dated 22 October 2005.

11                  On 25 September 2008, the Board of Trustees again rejected Mr Edington’s application.  As noted above, on review of that decision the Tribunal affirmed the Trustees’ decision.  That decision was made on 11 September 2009.  It is that decision that has lead to this appeal.

The relevant terms of the trust deed

12                  The central issue in Mr Edington’s case arises from Clause 6.1 of the Insurance Terms adopted under the QSuper Scheme Trust Deed relating to the original insurance units – which is almost identical to Clause 6.2 of the insurance terms relating to the additional units.  It relevantly provides that no insurance benefit will be payable for a claim unless “it is established to the satisfaction of the board that the total and permanent disablement …was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the time of entry of membership”.

THE DECISION OF THE TRUSTEES

13                  In their decision of 25 September 2008 (mentioned above), the Trustees assessed the medical evidence before them – in the form of medical reports by Drs Butler, Reddan and De Leacy – and, based upon that evidence, made a series of material findings.  In those material findings, they stated that they preferred the opinions in the reports of Dr Reddan:  “because of the different medical histories given by Mr Edington to Dr Butler and Dr De Leacy”.  In particular, the opinion of Dr Reddan that they relied upon (report dated 15 July 2008) was that:  “.. the dog incident in 2002 was not a severely traumatic event for a diagnosis of post traumatic stress disorder.  Further, … that it was the schizophrenia which prevented Mr Edington from successfully maintaining a longitudinal work history ”.

14                  Accordingly, the Trustees determined that:

1.         Mr Edington was totally and permanently disabled pursuant to the QSuper Trust Deed.

2.         Mr Edington’s disablement was related to his schizophrenia which should reasonably have been disclosed [when he joined the QSuper Scheme].

the Tribunal’s decision

15                  In its reasons for its decision of 11 September 2009 (mentioned above), the Tribunal began by identifying the decision under review as “… that the Complainant was totally and permanently disabled (‘TPD’), but that his disablement was related to his schizophrenia which should reasonably have been disclosed had a medical statement been submitted at the time that he became a member, and that accordingly, no insurance benefit was payable”.

16                  The Tribunal then set out the extensive procedural history to the complaint (summarised above), certain facts said not to be in dispute and various provisions of the Trust Deed and Insurance Terms, including Clause 6.1 – they actually set out 6.2 of the Insurance Terms relating to the additional Insurance Terms which are almost identical:  see [12] above.  It then turned to analyse the evidence of all the medical experts, particularly the reports of Drs Butler, Reddan and De Leacy.  It devoted some 58 paragraphs of its reasons to this analysis.

17                  The Tribunal noted Dr De Leacy had diagnosed post traumatic stress disorder (“PTSD”) as the cause of Mr Edington’s total and permanent disability and had expressed the opinion that this PTSD was solely attributable to the dog incident in 2002.  On the other hand, it noted Dr Reddan had diagnosed an anxiety disorder (but rejected a diagnosis of PTSD), which was amendable to treatment and had expressed the opinion that Mr Edington’s incapacity for work related to his pre-existing schizophrenia alone.  As to Dr Butler, the Tribunal noted that he was Mr Edington’s treating psychiatrist.  It noted he had diagnosed an anxiety disorder; a phobia to dogs; and an injury to his right ankle (but also rejected a diagnosis of PTSD) attributable to the 2002 incident, albeit that he considered these conditions and his injury were resolved by mid 2003.  It also noted that in his report dated 15 July 2004, he had expressed the opinion that these conditions and his injury were unrelated to his pre-existing schizophrenia.

18                  The Tribunal then considered the submissions the parties had made to it.  It noted that Mr Edington’s legal representative stated:

The Trustee’s decision turns upon the Board’s preference for the reasoning of [Dr Reddan] over the opinions of [Dr De Leacy].  Indeed, the reasons of the Trustee explicitly assert that [Dr Reddan’s] opinion was preferred because there were seemingly different versions given by the complainant to [Dr Butler] and [Dr De Leacy] with regard to the intensity of his fear of dogs.  The obvious point that needs to be made is that the Trustee could not have come to a real and genuine decision about what was said to [Dr Butler] in circumstances where it did not even have [Dr Butler’s] report of 15^th July 2004 before it.

19                  On the same point, the Tribunal also recorded the following submissions made on behalf of the Trustees:

The Trustee noted that in reaching its decision it preferred the reasoning of [Dr Reddan] because of the different medical histories given by the Complainant to [Dr Butler] and [Dr De Leacy] regarding his ongoing symptoms from the dog incident.

In its response submission dated 18 June 2009, the Trustee stated that it had before it all the relevant evidence at the time it made its decision, and objected to the Complainant’s representative’s “Selective quoting” of the medical reports.  The Trustee noted that the medical reports indicated that the Complainant’s phobic anxiety to dogs had largely abated, and submitted that there was medical evidence of a relationship between the Complainant’s disability and his condition of schizophrenia.

20                  In the first paragraph of the deliberations section of its reasons, the Tribunal identified its role as follows:  “The role of the Tribunal is to determine whether the decision of the Trustee …is fair and reasonable in its operation in relation to the Complainant in the circumstances”.  It added that the issue before the Tribunal was not what decision the Tribunal would have made on the evidence before it.  Aside from these observations, the Tribunal did not elaborate on the nature of its role, or consider the relevant provisions of the Act.

21                  The Tribunal then proceeded to note that there had been considerable variation in the history provided by Mr Edington concerning the dog incident, to the various health care professionals.  It also noted that there was “dissent of opinion” in the various reports in relation to both the diagnosis of Mr Edington’s post-injury psychological condition and the psychological cause of his total incapacity for work.

22                  In outlining the nature of these variations and dissenting opinions, the Tribunal noted that:

[Dr Butler] and [Dr Reddan] have diagnosed an anxiety disorder and [Dr Butler] also diagnosed a phobia to dogs.  Both rejected the diagnosis of PTSD.  In 2003 the Complainant told both of these doctors that his ankle was greatly improved and he no longer feared dogs. … The history given to [Dr De Leacy] in late 2005 differs significantly to that given to [Drs Butler and Reddan].  [Dr De Leacy] reported an on-going terror of dogs and florid symptoms meeting all the criteria for a diagnosis of PTSD, except for some amnesia for the incident.

23                  And further, that:

In mid-2003, [Dr Butler] and [Dr Reddan] attributed the Complainant’s incapacity for work to his pre-existing paranoid schizophrenia.  On 15 July 2004, [Dr Butler], who had last seen the Complainant in mid-2003, advised that given that the Complainant’s anxiety disorder, dog phobia and right ankle injury had by then resolved, these conditions could be attributed to the injury of 2 January 2002 and not to the Complainant’s pre-existing schizophrenia. ….

24                  Having detailed these matters, the Tribunal then referred to the diagnostic criteria for PTSD set out in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR).  It stated that:  “… The medical member of the Tribunal has referred to her own copy of DSM-IV-TR given the experts’ reliance on this text without stating the exact nature of the  Complainant’s symptoms as described by him or the criteria for the diagnosis of PTSD as outlined in the manual”.  The Tribunal then proceeded to undertake a detailed consideration of the diagnostic criteria for PTSD as contained in DSM-IV-TR in so far as they may have applied to Mr Edington’s situation.

25                  In the process, the Tribunal noted that Dr De Leacy reported Mr Edington’s symptoms using the exact words of the various criteria and that he questioned Mr Edington, who endorsed each symptom with the exception of some amnesia.  The Tribunal observed that this suggested that Mr Edington did not volunteer a description of his symptoms.  The Tribunal also noted that Dr De Leacy had found that Mr Edington’s pre-existing schizophrenia made him more likely to suffer PTSD.   The Tribunal (presumably the medical member) then pointed out that:  “Criterion A for the diagnosis of PTSD requires that the person experienced, witnessed or was confronted with an event that involved actual (that is objective) or threatened death or serious injury”.  It then drew the conclusion that:  “The hearing of dogs barking does not meet this [the PTSD] criteria.  [Dr De Leacy], at the most, referred to the Complainant catching a ‘glimpse’ of the dogs.  [Dr De Leacy] alone has described the Complainant’s response to the event as involving intense fear [Criterion A(2).]  It is to be noted that the Complainant had two days off work after the incident and claimed that he then returned to the ant surveillance programme and was not on light duties as directed by his GP”.

26                  In the concluding two paragraphs of the deliberations section of its reasons, the Tribunal summarised its conclusions.  It began by stating that it accepted Mr Edington had experienced an anxiety reaction/disorder as a result of the dog incident.  However, it concluded that:  “… the majority of the psychiatric evidence indicates that this anxiety disorder was temporary and had essentially resolved by mid 2003”.  Further, it concluded that:  “There is no evidence that [Mr Edington] was subsequently re-exposed to a similar or new event which might have reactivated his anxiety or caused PTSD”.  It, therefore, concluded that:  “… his accepted incapacity for any form of work arises from his long-standing schizophrenia”.  Finally, it concluded that:  “Based on [its] analysis of the medical reports [it was] satisfied that the Trustee’s decision to decline payment of the TPD benefit to the Complainant on the grounds that, on the balance of probabilities, the medical condition attributed to the dog incident, whatever form of anxiety disorder it was, was temporary and that the Complainant’s TPD was related to his pre-existing, long-standing paranoid schizophrenia was fair and reasonable given the conflicting psychiatric opinions”.

27                  The Tribunal added that it preferred the opinions of both Dr Reddan and “of the treating psychiatrist [Dr Butler]”.

the role of the Tribunal

28                  The Tribunal’s power to deal with a complaint about a decision of a trustee is found in s 14 of the Act.  In particular, s 14(2) allows a person to make a complaint to the Tribunal that a decision of a trustee was unfair or unreasonable.

29                  Section 37 of the Act then prescribes how the Tribunal is to review a decision of a trustee when such a complaint is made to it.  In particular, s 37(1)(a) states that when the Tribunal is reviewing a decision of a trustee it has all the powers, obligations and discretions that are conferred on the trustee.  Thus the Tribunal is said to stand “in the shoes” of the decision maker whose decision is the subject of the complaint:  Briffa v Hay (1997) 75 FCR 428 at 443 per Merkel J and Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 at [32] per Branson J.

30                  However, in Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122; (2003) FCAFC 214 (“Cameron”), the Full Court qualified this statement in relation to the Tribunal’s fact-finding role by referring (at [42]), with approval, to the following observations of Mansfield J in Hornsby v Military Superannuation and Benefits Board of Trustees (No 1) (2003) 126 FCR 484; [2003] FCA 54 (“Hornsby”) at [19]:  “…, the Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances.  But it is necessary to make such findings of fact only for that purpose.  It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made.  It does not, in that sense, simply stand in the shoes of the primary decision-maker ”(emphasis added).

31                  Subsection 37(5) of the Act provides that, in conducting its review, the Tribunal must not act in a way that would be contrary to law, to the governing rules of the fund or the terms of insurance between an insurer and trustee (if applicable).  Finally, to reinforce the provisions of s 14(2) (above), subs 37(6) requires the Tribunal to affirm a decision of a trustee if it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable in the circumstances.  The words “in its operation in relation to the complaint” obviously import an additional factor into the Tribunal’s review.  They require the fairness and reasonableness of the decision to be assessed by reference to its impact on the Complainant.  This requires, among other things, that the Tribunal have regard to the Complainant’s personal circumstances as they may be affected by the decision, subject always of course to the requirement I have already mentioned above, that it must act according to law.

32                  The operation of these provisions of s 37 of the Act was considered by Allsop J in Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359; [2001] FCA 1330 (“Crocker”) at 366 to 367.  His Honour succinctly summarised the Tribunal’s role as follows:

The tribunal’s task is not to engage in ascertaining generally the rights of the parties, nor is it to engage in some form of judicial review of the decision of the trustee or insurer. Rather it is to form a view, from the perspective of the trustee or insurer, as to whether the decision of either was (recognising the overriding framework given by the governing rules and policy terms, respectively) unfair or unreasonable.

33                  In Cameron, the Full Court approved this approach:  see at [43].  It also referred to another observation of Mansfield J in Hornsby to the effect that:  “… the role of the Tribunal under s 37 of the Act was not to decide for itself the correct or preferable decision because it had to affirm a decision if it was satisfied that the operation of the decision the subject of its review was fair and reasonable in the circumstances”:  see Cameron at [42], referring to Hornsby at [17].

34                  By way of obiter, in National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562; [2000] FCA 852, an earlier Full Court considered what is meant by the words “unfair” and “unreasonable” in this context, and observed that:  any attempt to precisely define these terms would be difficult; that the legislature had deliberately used words of broad content; and that there were dangers in paraphrasing these words:  see at [36].  While noting the Full Court’s warning about paraphrasing these words, in Crocker, Allsop J summarised various decisions of this Court as to their meaning, as follows (see at [25]):

…  The words “fair” and “reasonable” have been discussed in this court by Nicholson J in Pope v Lawler (1996) 41 ALD 127 at 135 where his Honour had recourse to the New Shorter Oxford Dictionary (4th ed, 1993) in ascribing, for the purposes of ss 14 and 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), to the word “fair” the meaning “just, unbiased, equitable, impartial” and to the word “reasonable” the meaning “within the limits of reason; not greatly less or more than might be thought likely or appropriate”; by Sundberg J in National Mutual Life Association v Jevtovic (unreported, Federal Court, Sundberg J, No VG656 of 1996) at pp 9-10; and by Merkel J in Briffa v Hay at 436 and in Collins v AMP Superannuation Ltd (1997) 75 FCR 565 at 578 (referring, without disapproval, to Pope and Jevtovic.

35                  Finally, it is appropriate to note that other single judge decisions have observed that, in discharging its role, the Tribunal is not limited to the documentation that was before the Trustee, nor is it confined to the manner in which the applicant addressed the subject matter:  see Commonwealth Superannuation Scheme Board v Dexter (2004) 142 FCR 151; [2004] FCA 1434 at [59] to [60] per Gray J and HEST Australia Ltd v Sykley (2005) 147 FCR 248; [2005] FCA 1381 at [40] per Crennan J.

THE TRIBUNAL DID NOT DISCHARGE ITS ROLE under section 37

36                  The authorities I have referred to above make it clear that the Tribunal’s central role in this matter, was to review the decision of the Trustees to ascertain whether it was fair and reasonable in its operation in relation to Mr Edington.  The Tribunal must undertake this review according to law – here, specifically, Clause 6.1 of the Insurance Terms adopted under the QSuper Trust Deed.  That being so, it is self-evident, in my view, that the Tribunal must, first, identify how the Trustees actually came to their decision.  This necessarily requires it to identify the reasoning process that the Trustees employed to reach their decision.  Only then can the Tribunal begin to make a proper assessment as to whether, having regard to that reasoning process, the decision was just, unbiased and equitable and was within the bounds of reason, ie fair and reasonable:  see [34] above.

37                  While the Tribunal correctly stated in its reasons that its role was to assess whether the Trustees’ decision was fair and reasonable (see [20] above), there is, in my view, no indication from its reasons that the Tribunal discharged that role by undertaking the task I have described above, viz first identifying the Trustees’ reasoning process, and then conducting an analysis of it to assess whether it was fair and reasonable.  The closest it came to identifying the Trustees’ reasoning process was to state what the Trustees’ decision was:  (see [15] above).  However, this was merely a statement of the Trustees’ ultimate determination, it was not a description of the reasoning process they employed to come to that determination.

38                  It is not as if it was difficult to identify the Trustees’ reasoning process.  It was contained in the Trustees’ material findings – nineteen in all – that appeared immediately below the statement of their determination, from which the Tribunal quoted.  It was also summarised in the Trustees’ submissions to the Tribunal:  see [19] above.  Those material findings and the Trustees’ summary both reveal that, essentially, the Trustees came to their decision because they preferred, and relied upon, the opinions of Dr Reddan and not those of Dr Butler or Dr De Leacy.  They did that because they found that Mr Edington had given “different medical histories” to the latter two doctors:  see at [13] above.  It is of note that Dr Reddan’s report was obtained by QSuper, whereas the reports of Dr Butler – Mr Edington’s treating psychiatrist – and Dr De Leacy were obtained by Mr Edington’s solicitors.

39                  To properly discharge its role, I consider this reasoning process should have been the central focus of the Tribunal’s review of the Trustees’ decision.  To conduct a proper analysis of it, I consider the Tribunal should have, among other things, considered the “different medical histories” that the Trustees said Mr Edington gave to Dr Reddan on the one hand, and to Drs Butler and De Leacy on the other.  Then it should have determined whether, and how, those different histories affected the cogency of the various opinions given, to determine whether it was fair and reasonable for the Trustees to accept and rely upon Dr Reddan, but not the other two doctors.

40                  The Tribunal certainly adverted, in its reasons, to the differing histories Mr Edington provided to the doctors because it said:  “The Tribunal notes there has been considerable variation in the history concerning the dog incident as provided by the Complainant to the various reporting health practitioners”.  However, having made this comment, the Tribunal did not proceed to make the kind of analysis I have referred to above.

41                  There is a number of other aspects of the Tribunal’s reasons that indicate that it did not properly review the Trustees’ decision to ascertain whether it was fair and reasonable.  First, and perhaps most telling, is the critical difference between the medical opinions the Trustees relied upon to reach their decision and those relied upon by the Tribunal.  AsI have already identified above (see at [38]), the Trustees accepted, and relied upon, Dr Reddan’s opinions in preference to those of Drs Butler and De Leacy.  However, in its reasons, the Tribunal accepted and relied upon the opinions of both Drs Reddan and Butler:  see [26] and [27] above.  This begs the obvious question, critical to the Tribunal’s review role:  was it fair and reasonable for the Trustees not to accept Dr Butler’s opinions when the Tribunal thought they should be accepted and relied upon?

42                  The Tribunal did not ask, or answer, this question.  If it had, it would have had to resolve a critical difference between the opinions of Dr Reddan and those of Dr Butler on the cause of Mr Edington’s total and permanent disablement for work.  For her part, Dr Reddan was of the opinion that it was Mr Edington’s schizophrenia that prevented him from working:  see [13] above.  However, Dr Butler’s opinion on this issue was quite different.  It was expressed in his report dated 17 July 2003,  in the following terms:

…  I have ongoing concerns about the process of his discontinuation of his employment.  If indeed his inability to continue employment is primarily related to his having a schizophrenic illness then it automatically begs the question of what his work performance was like prior to his injury and why appropriate action was not taken at that time. 

43                  The second aspect of the Tribunal’s reasons that indicates it did not properly discharge its review role flows from this first aspect.  It relates to the quite different reasoning process the Trustees and the Tribunal used to reach the same conclusion on the pivotal question:  was Mr Edington’s total and permanent disablement for work related to his schizophrenia condition, ie the causation issue?  As I have already noted (at [38] above), a critical component of the Trustees’ reasoning process was their decision to accept and rely upon the opinions of Dr Reddan.  Those opinions are set out at [13] above.  In summary, they were to the following effect:

·                    the dog incident did not cause Mr Edington to suffer PTSD; and

·                    Mr Edington’s total and permanent disablement for work was related to his pre-existing schizophrenia condition. 

44                  However, as I have also already noted (at [41] above), in the corresponding reasoning process of the Tribunal, it accepted the opinions of both Dr Reddan and Dr Butler and, based upon those opinions, it concluded, in summary, that:

·                    the dog incident caused Mr Edington to suffer an anxiety reaction;

·                    that anxiety condition was resolved by mid-2003;

·                    there was no reoccurrence of that condition thereafter;

·                    therefore Mr Edington’s total and permanent disablement for work was related to his pre-existing schizophrenia condition.

45                  It will be noted that both the Trustees and the Tribunal came to the same final conclusion about the relationship, or causal link, between Mr Edington’s total and permanent disablement for work and his schizophrenia condition.  However, it will also be noted that, in addition to relying upon a different set of medical opinions, they came to that final conclusion by a quite different process of reasoning:  the Trustees, essentially because the dog incident did not cause Mr Edington to have PTSD, and the Tribunal, essentially because the dog incident only caused a temporary anxiety reaction, and therefore (in both situations) his total and permanent disablement for work was caused by his schizophrenia condition.

46                  For similar reasons to those I have already given (at [41] to [42] above) about the differing medical opinions they relied upon, I consider it was encumbent upon the Tribunal to examine whether it was fair and reasonable for the Trustees to use a different reasoning process to come to the same conclusion as it did on this causation issue.  Furthermore, on this aspect, it will be noted that both the Trustees and the Tribunal concluded Mr Edington’s schizophrenia condition was the only alternative cause of his total and permanent disablement for work.  Neither seems to have turned their minds to the temporal aspect of this causation issue raised by Dr Butler in his report of 17 July 2003 (see at [42] above) to the following effect:  if Mr Edington could obtain work and perform his duties in it satisfactorily up until he sustained his injuries in the dog incident what, apart from that incident, would explain his becoming totally and permanently disabled for that work soon thereafter?

47                  All of these matters demonstrate how important it was for the Tribunal to undertake a thorough and careful review of the way in which the Trustees dealt with all of the medical opinions on this causation issue.  Among other things, I consider this required the Tribunal to examine whether the Trustees had due regard to the context in which those various medical opinions were expressed.  For example, the introductory paragraph to Dr Butler’s report of 17 July 2003, I have referred to above, reveals that the opinions he expressed in that report were in response to an approach Mr Edington made to him shortly before 17 July 2003:  “regarding the Prospect of his returning to work in the Fire Surveillance Authority”.  This context is obviously important in assessing those opinions.

48                  It also raises the question whether the Tribunal examined whether the Trustees had due regard to all the circumstances relevant to their decision.  In this respect, I consider the words in s 37(6) of the Act:  “the decision, in its operation in relation to … [Mr Edington]”, become particularly significant.  Among other things, I consider they required the Trustees to consider matters such as the interaction between their decision and the concurrent decision of Mr Edington’s employer, the Department of Primary Industries, to compulsorily retire Mr Edington on the grounds of his total and permanent disablement for work:  see at [6] to [8] above.  As an aside, it may be noted that the Trustees seem to have been alive to the significance of the interaction between these two decisions (albeit that they made no attempt to address it in their decision) because, in the final paragraph of their decision dated 23 October 2008 (the decision under review), they made this comment:  “The Board notes that Mr Edington was retired on ill health grounds upon the decision of the Department of Primary Industries, and not QSuper. ”

49                  The third aspect of the Tribunal’s reasons that I consider indicates it did not properly carry out its review role also relates to Dr Butler’s opinions.  Mr Edington’s legal representative complained in his submissions to the Tribunal that the Trustees had not considered Dr Butler’s report dated 15 July 2004 and it was not fair and reasonable for them to reject his opinions without having done so:  see [18] above.  This complaint appears to have merit because the Trustees do not seem to have made any mention of Dr Butler’s report of 15 July 2004 in their material findings, or elsewhere in their decision.  Yet, the only indication in the Tribunal’s reasons that it addressed this complaint is its record of the Trustees’ submissions before it that:  “In its response [to Mr Edington’s submission] the Trustees stated that it had before it all the relevant evidence at the time it made its decision …”:  see at [19] above.  Given that the Trustees’ first determination was set aside, in part, because they did not have regard to the report of Dr De Leacy (see at [10] above), a more considered response to Mr Edington’s complaint about this aspect of the Trustees’ decision was clearly called for.  Moreover, since the Trustees did not mention the opinions expressed by Dr Butler in that report in their material findings, it must follow that it was impossible for the Tribunal to make any proper assessment as to whether, the way in which they dealt with those opinions, was fair and reasonable.

50                  Finally, I consider the way the Tribunal actually went about its task, as disclosed by its reasons (see at [15] to [27] above), also indicates it did not conduct a proper review focusing on the fairness and reasonableness of the Trustees’ decision.  Instead, I consider the Tribunal’s reasons reveal that it actually conducted a fresh review of the whole of the evidence in order to ascertain the rights of the parties generally.  In the process, it made most, if not all, of the necessary findings of fact afresh, as if the Trustees’ material findings had not been made.  In addition, it made specific findings of fact that the Trustees had not made, for example, that Mr Edington had not been involved in a life or injury threatening experience within the criteria set out in DSM-IV-TR (see at [24] and [25] above) – in my view, this was plainly not a finding of fact that was necessary to allow the Tribunal to assess whether the Trustees’ decision was fair and reasonable.  So, in summary, I consider the Tribunal’s reasons show that it proceeded to decide afresh what it thought the correct decision was, and it then concluded that, because the Trustees’ decision was to the same ultimate effect as its decision, their decision must have been fair and reasonable.  On almost every front, this approach is contrary to the observations made in the various authorities I have referred to above, particularly those at [30] and [32] to [33].

conclusion

51                  For these reasons, I conclude that the Tribunal committed an error of law in that it did not properly exercise its powers of review of the Trustees’ decision in accordance with s 37 of the Act.

52                  It follows that this appeal must be allowed.  The decision of the Tribunal must be set aside and the matter must be remitted to the Tribunal to be re-considered according to law.

53                  I considered whether I should order that the Trustees’ decision be set aside, but I have decided that I should take the same approach as Allsop J did in Crocker (see at [139]) and leave that matter for the Tribunal to decide.

54                  I will hear the parties on the question of costs.

Associate:

Dated:         21 May 2010