Carrette v Superannuation Complaints Tribunal [2017] FCA 640

File number:

NSD 1854 of 2016



Date of judgment:

29 May 2017


SUPERANNUATIONwhere trustee had rejected complainant’s claim for a total and permanent disablement benefit – review of decision of the Superannuation Complaints Tribunal affirming decision of the trustee where Tribunal erred by failure to engage with critical parts of medical evidence before it – orders made remitting matter to be determined by the Tribunal in accordance with reasons


Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37, 46

Cases cited:

Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472

Friar v Brown [2015] FCA 135

Mercer Superannuation (Australia) Ltd v Billingshurst [2016] FCA 1274

New South Wales v Seedsman [2000] NSWCA 119; 217 ALR 583

Date of hearing:

29 May 2017


New South Wales


General Division

National Practice Area:

Commercial and Corporations


Commercial Contracts, Banking, Finance and Insurance

Insurance List



Number of paragraphs:


Counsel for the Applicant:

Mr KC Fleming QC with Mr A Quinn

Solicitor for the Applicant:

Somerville Laundry Lomax Solicitors

Counsel for the Second Respondent:

Mr MT Hickey with Ms S Forder

Solicitor for the Second Respondent:

Crown Law


NSD 1854 of 2016






First Respondent


Second Respondent




29 MAY 2017


1.    The decision of the Superannuation Complaints Tribunal dated 20 September 2016 be set aside.

2.    The matter be remitted to the Tribunal for re-hearing.

3.    The second respondent pay the costs of the applicant.

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


(Revised from the transcript)


1    This is an appeal on a question of law under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act) from a decision of the Superannuation Complaints Tribunal (the Tribunal) made on 20 September 2016. In October 2016, a Notice of Appeal was filed in this Court. The matter was placed into the Insurance List. Directions were made on 7 December 2016 for bringing the matter to trial and in April 2017, the matter was set down to today for hearing. May I begin by saying that my capacity to deliver judgment today is in no small part a consequence of the quality of assistance that I have received from counsel and solicitors, both in their written submissions and orally today.

2    The Tribunal’s decision was a review under Pt 6 of the Act of a decision of the trustee, in this case the Board of Trustees of the State Public Sector Superannuation Scheme. The Tribunal consisted of a presiding member and another member, one of whom was medically trained. The nature of this appeal is on a question of law, and for that reason, notwithstanding the provision of the Act permitting such order as is appropriate to give relief where there is an error, I am of the view that the provision does not permit me to make findings of fact to render the ultimate decision that the Trustee or Tribunal may have been able to, in the absence of a clear basis to think that no other factual consideration or conclusion could apply.

3    The nature of the appeal being on a question of law has its comparison to that of an appeal from the Administrative Appeals Tribunal. But the nature of the review is affected by the terms of the Act and, in particular, the Tribunal’s powers under s 37 of the Act, subs (6) of that provision requiring the Tribunal to affirm a decision if it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable in the circumstances. The nature of the review by the Tribunal was not a subject of any live debate before me. To understand it, one needs to read cases such as Friar v Brown [2015] FCA 135 and the other cases referred to by the parties in their helpful written submissions: see, for example, Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472; Mercer Superannuation (Australia) Ltd v Billingshurst [2016] FCA 1274.

4    Broadly speaking and without intending to qualify the established position, how deeply and how carefully the Tribunal should be required to delve into and decide upon the facts in any particular case depends upon the issues in the case and the matters thrown up for its consideration in the review in respect of which it has the wide powers contained in Pt 6 and, in particular, Div 3.

5    The heart of the matter for the Trustee and the Tribunal was the incapacity of the applicant, Mr Carrette, due to, if I may use the expression neutrally, psychiatric conditions from which he has suffered in the work related context. Those issues perhaps best, at least initially, come from an understanding of the history of the matter and the chronology. From February 1985 to November 1996, Mr Carrette was employed as a police officer in the New South Wales Police Force. During that time, by reason of matters that occurred to him as a police officer, he suffered post-traumatic stress disorder (PTSD), and major depressive disorder (MDD) and was discharged from law enforcement from the New South Wales Police Force on medical grounds in 1996.

6    From 1996 to 1997, he was unemployed. From 1997 to 2001, he undertook various jobs including as a pensions officer, machine operator, vehicle inspector, customer service officer, truck driver, forklift driver and casual labourer. In 2001, he briefly worked in the New South Wales Department of Transport. From 2001 to 2006, he worked at the Roads and Traffic Authority of New South Wales. In March 2006, he joined the QSuper Fund as an employee of the Department of Main Roads of Queensland. From 2006 to 2007, during his employment at the Department of Main Roads of Queensland, he suffered significant stressors which led to psychiatric ill health.

7    On 15 June 2006, Mr Carrette lodged a workers compensation claim for PTSD. He last physically worked for the Department of Main Roads of Queensland on 15 June 2007. In August 2007, his employment was terminated with the Department of Main Roads due to his health. In 2008, he worked as an inspection officer with the New South Wales Office of Liquor, Racing and Gaming. On 14 April 2009, he ceased working as a traffic controller with Road and Traffic Management Technologies. Some time prior to the Tribunal decision, Mr Carrette ceased work.

8    I have in part gone through that chronology to make clear (and I should add that there is no suggestion in the evidence) that there is no lack of genuineness in Mr Carrette’s approach to either this claim or to work generally. There is a degree of common ground in this proceeding which it is appropriate to identify at the outset. First, that Mr Carrette suffered from PTSD and MDD after his cessation of work with the New South Wales Police Force and that those conditions, to the extent that they can be seen separately, were exhibited in symptoms in the 1990s.

9    The evidence is not entirely precise and the findings of the Tribunal are not precise about the question as to at what point Mr Carrette could be seen to have reached a point of recovery from his PTSD condition brought on by work at the New South Wales Police Force. There may be an assumption in that last sentence about whether or not he was ever free of it. That assumption and its importance will become clear in discussing how the matter was disposed of by the Tribunal.

10    Central to the disposition of the controversy between the parties and the rights of Mr Carrette to benefit from the superannuation arrangements was the application of cl 6.2(b)(ii) of the underlying insurance policy supporting the superannuation arrangements. Clause 6.2(b) was in the following terms:

6 Pre-existing Medical Conditions

6.2    No insurance benefit will be paid for a claim unless:


(i)    the member has been an insured member for fewer than 10 continuous years; and

(ii)    in the board’s opinion, the member’s total and permanent disablement or death or temporary disablement was not related to a medical condition the signs or symptoms of which existed before the start of the member’s contributory membership.

11    From cl 6.2(b)(ii), one sees the importance of the medical condition of PTSD and MDD suffered by Mr Carrette after his work at the New South Wales Police Force.

12    After Mr Carrette began to work at the Department of Main Roads, he suffered physical and verbal abuse and bullying from a group of men at the Department of Main Roads who it was said inflicted that kind of behaviour upon anyone who sought to undermine or interfere with what was said to be an inappropriate, and on one view, plainly illegal, rorting of overtime entitlements and the advantage apparently obtained from the favouring of a tow truck driver. This group of people were referred to in the material as the “wolf pack”.

13    In any event, the precise nature of the stressors experienced by Mr Carrette in this period of time working for the Department of Main Roads and their comparison to the type of stressors he experienced in the New South Wales Police Force need not occupy this judgment any further. It suffices to say that, in 2006 and 2007, Mr Carrette revealed symptoms of a psychiatric disorder variously described in the reports to which I will come as PTSD, MDD or complex PTSD. But as one can see from cl 6 which I have recited, the fundamental question at hand was not whether Mr Carrette had PTSD or complex PTSD, as it was common ground he had a psychiatric condition that made him permanently disabled. The question was whether cl 6.2 applied, such that no insurance benefit would be paid unless in the Board’s opinion, that is, the Trustee’s opinion, Mr Carrette’s accepted total and permanent disablement was not related to a medical condition, that is, the PTSD or MDD of the 1990s, the signs or symptoms of which existed before the start of the contributory membership.

14    In the written argument and in some of the material below, in particular Professor McFarlane’s reports of 2013, there is an emphasis on signs or symptoms which existed before membership and the signs or symptoms afterwards. Overemphasis on similarity or difference of symptoms over different periods might distract from the proper construction of cl 6.2, which ultimately, there was no real issue about.

15    The question to be focused upon, either in the positive or negative, assuming for present purposes there is no difference, is whether or not there was a relationship between Mr Carrette’s condition after 2007 and his condition in the 1990s, or whether they were unrelated. That question of relationship of two psychiatric conditions at different points a decade apart was a medical question. To that end, a large body of medical evidence was placed before the Trustee and placed before the Tribunal. The applicant emphasises, and it is appropriate to note, that a significant body of that material was not prepared with the terms of cl 6 in mind. For instance, much of it was prepared for the workers’ compensation claim. That does not mean, by any means, that it was of no weight, or that its weight should be substantially reduced, as long as the focus of cl 6 is kept in mind.

16    Ultimately, the question that I have to decide is tolerably narrow. It arises from the way an eminent practitioner, Professor Alexander McFarlane expressed his views ultimately. The reason I say “ultimately” will become evident shortly.

17    The medical evidence was set out in the record of reasons of the Tribunal and with one exception, to which I will come, being the recitation of the evidence of Professor McFarlane himself, the applicant has no complaint about how the Tribunal recited and expressed the nature of the medical evidence. A large number, indeed ultimately most of the medical practitioners, being psychiatrists and psychologists, expressed the view up to 2011 that Mr Carrette’s current position brought on by the stressors at the Department of Main Roads was an aggravation of or relapsing of the former condition brought on by the stressors at work in the New South Wales Police Force.

18    The importance of that is that it would be difficult, if not impossible, then to argue that the cause of the total permanent disablement after 2007 and thus Mr Carrette’s total and permanent disablement was not related to the medical condition of PTSD or MDD, arising from his work at the New South Wales Police, the signs or symptoms of which existed before the start of his contribution.

19    This was the importance of reports obtained from Professor McFarlane in 2013 which referred to and incorporated some of the observations of a psychologist, Ms Stern. In two reports in particular, one of 16 January 2013 and the other of 30 January 2013, Professor McFarlane expressed importantly different views to that which he previously expressed. He was asked to and did carry out a comprehensive review of the medical reports to date and he directed his views to what he described in the 16 January report as the subtlety and substance of the definition in cl 6. Professor McFarlane, being asked to address cl 6 and what he wrote, should not be taken and is not taken by me (and no submission was put that I should) as showing an artificial construction or approach to the problem.

20    Professor McFarlane was directing himself to the importance of the question of relationship or lack of relationship of the two conditions. In the first report, a detailed analysis was made of previous reports and, in particular, Professor McFarlane undertook a detailed discussion of his own report of May 2011 at pages 19 and 20 of this report (see pages 129 and 130 of Pt C). On those two pages he identified the parts of the report that referred to the major exacerbation of Mr Carrette’s condition as well as the aggravation or rendering symptomatic of the condition by what happened at Queensland Main Roads.

21    Likewise, he said in the earlier report that he was of the opinion that his condition was very significantly aggravated and exacerbated due to the nature and conditions of his employment at Queensland Main Roads. That reference reinforces the importance of what then came to be his views expressed in the following parts of the report. At pages 20 and 21 he said things such as:

I do not believe that my previous report adequately addressed the matters, in particular the nature of the language used. Certain words used in medicine have the potential to be misinterpreted in other settings without full clarification.

22    At pages 25 to 26 of his report (being pages 135 and 136 of Pt C), he answered this question:

Bearing in mind clause 6.2 above is our client’s current condition related to the conditions he suffered as a consequence of his employment with New South Wales Police or is it a separate condition?

23    His answer was as follows:

This question is influenced by the time-window through which the observation is made. In the initial period of his employment, as set out in the documents reviewed above, particularly his general practitioner’s records and the earlier reports of 2006 by Mr Rushton, Dr Pearson and Mr Bayliss, his condition that emerged at this time was substantially independent of his chronic posttraumatic stress disorder and major depressive disorder.

From a diagnostic perspective this can be categorised as an adjustment disorder. However, progressively with time the symptoms of that condition became subsumed by the diagnostic criteria of posttraumatic stress disorder and major depressive disorder. The fact that its diagnostic criteria is subsumed, does not remove the relevance from a causal perspective of the stressors he experienced in the Queensland Department of Main Roads. This reasoning involves complex questions about whether separate episodes of major depression are independent or not. From the perspective of a phenomenological diagnosis, which does not consider the aetiology, they are not independent. However, this does not address the question raised in Clause 6.2. To the end psychiatric conventions of diagnosis are confusing in this context. As I have carefully set out above, there were signs and symptoms that did not exist prior to his employment with the Queensland Department of Main Roads. I accept that this is a subtle and complex argument that can be further spelt out.


I have reviewed my earlier report about Mr Carrette in this report answering further questions raised in your letter of instruction. My earlier opinion has been qualified against the background of further reports provided to me that were of a critical nature to this case. In particular, they were the general practitioner’s records that documented the earlier emergence of Mr Carrette’s symptoms following his employment with the Queensland Department of Main Roads. These highlight that he was exposed to a severe and major stressor of a realistic nature and that the content of his earlier pre-occupations directly related to these events that arose at the Department of Main Roads. His affect and thoughts and the intensity of his reactivity were directly related to matters pertaining to those stressors. To this end, he developed new signs and symptoms that were unrelated to his earlier posttraumatic stress disorder and major depressive disorder.

This was against the background of Mr Carrette having been relatively symptom free and suffering from little disablement in the period from 2000 to 2006. This highlights the substantial nature of the causal role of the events which occurred in the employment in question.

Progressively with time, the conditions of chronic post-traumatic stress disorder and major depressive disorder re-emerged. However, this does not negate the role of his symptoms of an adjustment disorder that occurred early in the exposure of his stressors and their central role to the causation and nature of his condition. The later assessment of his clinical picture is likely to have been dominated by these conditions which had re-occurred and did not address the subtly [sic] of the mechanism of onset. The systematic assessment of these causal pathways infrequently occurs in psychiatric assessments. Furthermore, the retrospective history taken by clinicians is dependent upon the individual’s recall and this is frequently dominated by the individual’s current state of mind. As a consequence, Mr Carrette’s later recall of how his distress began was dominated by his understanding of the re-emergence of his chronic posttraumatic stress disorder and major depressive disorder.

In summary, it is critical to differentiate these causal pathways in answering the matters at stake.

24    In his further report of 30 January 2013, Professor McFarlane was asked to comment upon Ms Susan Stern’s, the psychologist’s, report and at this point the diagnosis of complex PTSD is referred to. He also answered questions as to the differences of the signs or symptoms in the Queensland Main Roads condition – if I may use that expression – compared to the New South Wales Police Force condition and he also gave some discussion of and importance to notions of causation.

25    For ease of reference, I set out what appears under questions 1, 2, 3 and 4, and the summary on page 5 of that report (see pages 138 to 141 of Pt C):

1.    Do you agree with the analysis and conclusion drawn by Ms Stern in her above mentioned report?

Broadly, I would agree. However, there is some evidence that Mr Carrette had some enduring symptoms after 1999 and only stopped antidespressants three years before he commenced with Queensland Main Roads, suggesting that his residual symptoms were in part modified by ongoing treatment.

Complex posttraumatic stress disorder is a valuable construct used in relation to his condition. The limitations of its usage arises out of the fact that it is not included in the DSM system.

The content of his preoccupations following his employment at Main Roads, the nature of the stressors and the manifestations, for example his severe suicidal ideation, are significant and relevant differences. She clearly articulates the reasons for the differences with which I substantially agree.

2.    Has the chronic PTSD suffered by our client following his employment at the Queensland Department of Main Roads caused a total and permanent disablement (as defined in the policy) to our client?

In my opinion, the total and permanent disablement experienced by Mr Carrette was substantially determined by his employment with the Queensland Department of Main Roads. His level of functioning prior to his employment in contrast to that following his employment is clearly apparent. The nature of the stressors he was exposed to in the course of that employment were manifest in the new signs and symptoms as expressed in his preoccupations following his employment with the Queensland Department of Main Roads. These led to a particular pattern of affect dysregulation and loss of self-esteem that were not present prior to his employment with Main Roads. This causal pathway accounts for the substantial aspects of his disability that were caused by this employment.

3.    Are the signs or symptoms exhibited by Mr Carrette following his employment with the Queensland Department of Main Roads different to the signs or symptoms exhibited by him during and following his employment with the NSW Police Force?

I have answered this in my previous report. His symptoms were different to the extent of the content of his traumatic preoccupations and the severity of his affect dysregulation. The emergence of suicidal ideations as stated by Ms Stern in her report of 11th January 2013 are further important signs and symptoms for consideration.

As summarised above, Malhi (2013) indicates that a given symptom namely blindness can have multiple causes. Whilst there was some similarity between the symptoms Mr Carrette had following his employment with the Queensland Department of Main Roads, they had a substantially different cause. Thus, a significant dimension of his clinical presentation in the first instance in the form of an adjustment disorder was different from his previous presentation.

4.    Are Mr Carrette’s current symptoms of chronic PTSD different from the symptoms of his PTSD caused during his employment with the New South Wales Police from the following perspectives:

a)    Causation

His symptoms following his employment with the NSW Police Force were different from these symptoms that he developed following his employment with the Queensland Department of Main Roads in several ways. Firstly, the content of his traumatic memories which drive the underlying dysregulation and point to the critical exposures were different. In the course of his duties, as summarised by Ms Stern, as a police officer he was exposed to death and suffering that were a substantial component of his ruminations.

In contrast, the threats and criminality of his colleagues and the way that he was dealt with in relation to these matters were the content of his ruminations following his employment with the Queensland Department of Main Roads. Also the pattern of his acute distress and the triggers and the aspects of his workplace which he sought to avoid were also substantially different. These argue to the different mechanisms of causation.

b)    Diagnosis

As set out in the quote from Malhi, psychiatric diagnoses are based on symptoms. The same symptom can have multiple independent causes. Hence, it is a mistake to assume that the same diagnosis represents the same mechanisms of causation. The different diagnosis which Mr Carrette initially experienced was that of an adjustment disorder. Otherwise the diagnosis was a chronic posttraumatic stress disorder and major depressive disorder and he had previously been given these diagnoses. However, diagnoses as stated above do not characterise the issues of causation or necessarily the underlying pathology leading to the condition.

c)    Location, type and nature

Prior to his employment by Main Roads, Mr Carrette had residual symptoms of posttraumatic stress disorder but from a clinical perspective, the condition was in remission. The nature of the stressor as set out in the A Criteria and the re-experiencing in the B Criteria were new and different following his employment. To that end, there were new triggers and aspects of his environment which he had avoided which had not previously been the case. To this extent, this was a different type of posttraumatic stress disorder. From a clinical perspective, its characteristics were different.

Ms Stern’s opinion raises the issue as to whether he had a complex posttraumatic stress disorder. This emphasises the associated symptoms of posttraumatic stress disorder which whilst not core to the diagnosis, they are relevant in understanding its manifestations and consequence.

In summary, the location of disorder namely in the brain, was the same but the type changed from being residual symptoms to a full blown chronic unrelapsing condition which had different traumatic exposures and memories as covered by the A and B Criteria. Also, aspects of the C Criteria, namely the avoidance of symptoms, were different.

In the event the symptoms are different, have the symptoms he has suffered following his employment with the Queensland Department of Main Roads been the cause of his total and permanent disablement?

Critical to understanding the cause of his total and permanent disablement is the course of Mr Carrette’s symptoms. In the absence of the stresses of his employment with the Queensland Main Roads, it is my opinion that he would have remained much as he was in the period between 2000 and the commencement of his employment. He was functioning at a reasonable level and actively engaged in his family and work life.

The stresses that he experienced with the Queensland Department of Main Roads and his continued intrusive preoccupation with what transpired are the cause of his subsequent symptoms and led to his total and permanent disablement. His background minor symptoms and subsequent stresses to leaving that employment only have made a minor contribution to his current state.


In stating my opinion above that Mr Carrette developed significant new symptoms and that his employment with the Queensland Main Roads was the substantial cause of his current disability, in this report and in my report of 16th January 2013 I confirm that I have read Rule 428 of the Uniform Civil Procedural Rules 1999 (Queensland) and confirm that –

d.    The factual matter stated in my reports are, as far as I know, true; and

e.    I have made all enquiries considered appropriate; and

f.    The opinions stated in my report are genuinely held by me; and

g.    The report contains references to all matters I consider significant; and

h.    I understand my duty to the court as an expert and I have complied with that duty.

26    For present purposes, the importance of this is that Professor McFarlane was saying that this was a different condition effectively unrelated to the earlier condition and one that was best understood as complex PTSD and not PTSD or MDD. Also importantly, in the report of 30 January he makes clear his view that complex PTSD is not included in the DSM handbook and thus it is not a diagnosis or identification of a condition directly referable to the DSM as a medical construct. The importance of this last point will become evident when one looks at the reasons of the Tribunal.

27    Before going to those, one other matter should be identified and that is the second paragraph under question 6 in the report of 16 January (see extracted at [23] above). It is important to understand that Professor McFarlane was not saying that the symptoms of Mr Carrette’s condition meant that he had PTSD. When one looks at the whole of Professor McFarlane’s reports including that of 30 January it is clear that he is identifying in his 2013 reports complex PTSD as a separate condition.

28    I should add at this point – and it was a matter emphasised perfectly properly by Mr Hickey for the respondent – that in March 2013, Dr Bradley Ng provided a report that reviewed Ms Stern’s report and Professor McFarlane’s reports of January. Dr Ng expressed a view in that report doubting whether complex PTSD was a separate condition from post-traumatic stress disorder. The point of referring to Dr Ng’s report at this point is that especially in the light of the history of the medical views, there may well be a live and lively medical issue about the legitimacy of the analysis and diagnosis of Professor McFarlane in 2013.

29    I do not say that critically in the slightest of Professor McFarlane. In that context I would also add, in fairness to the respondent, that of the ten or so psychiatrists and psychologists who attended to Mr Carrette, two are treating doctors and both treating doctors were of the view that Mr Carrette’s current condition was an exacerbation or relapse of the earlier condition. In this light, one needs to turn to the terms of the reasons. I do not read these reasons with any eye to the ascertainment of error – rather, with an eye to the substance of the dispute, a recognition that there was a specialist medical member on the Tribunal, and that there was a range of medical opinion being expressed about Mr Carrette’s condition.

30    The reasons contain the following. After procedural matters and the complaint and background were dealt with, the Tribunal identified the terms of the trust deed and the insurance terms. From [24], the Tribunal noted that it had been provided with opinions of ten psychiatrists, three psychologists, an occupational therapist and a facility medical officer dealing with the two relevant timeframes of 1995 to 2000 and 2006 onwards. The Tribunal in its reasons then summarised the evidence of the major reports. As I said earlier, there was no contest as to the accuracy of the summaries save for that that dealt with Professor McFarlane.

31    Within that description of that medical evidence, there is not bound up with it an expression of view by the Tribunal as to its view. One comes to [46] to [50] which is the summary of the various reports in 2011, 2013 and 2016 of Professor McFarlane. It was emphasised by senior counsel for Mr Carrette that [49] contained a mischaracterisation or misstatement of what appears at page 25 of the report of 16 January 2013 (see page 135 of Part C). Relevantly I should set out at this point [46] to [50] of the reasons, as the discussion of Professor McFarlane’s views:

46.    Professor AMcF first saw the Complainant on 23 December 2010. The report provided very detailed graphic descriptions of the severe stressors experienced by the Complainant between 1990 and 1996 during his law enforcement officer employment. Included with the Complainant’s reporting of a very senior officer for speeding and the claimed adverse treatment this attracted; claims that documentation was destroyed; complaints to a Crime Commission and subsequently to a Royal Commission and the Human Rights Commission. The professor made a diagnosis of PTSD, an MDD and Alcohol Abuse commencing between 1990 and 1996, responding to treatment and then relapsing following the harassment and bullying encountered in June 2006 after the Complainant had uncovered evidence of corrupt practice in his new position in road management. This corrupt activity had been pursued by two employees identified as the ‘wolf pack’.

47.    Professor AMcF reviewed all the provided reports. He agreed with the opinion of Dr SS and disagreed with those of Drs GP and RL. He declared the Complainant incapable of working and stated he would be impaired until age 65 as he would always be symptomatic even though the prognosis was uncertain. A detailed treatment plan including the need for 4 weeks hospitalisation in each 2 year period was provided.

48.    On 16 January 2013 Professor AMcF having reviewed the Complainant provided a further report and reviewed all other reports including his own of 2010. The Complainant’s solicitors had posed a series of detailed questions. The Professor revised his opinion having identified signs and symptoms not previously recorded or differing in 2006 from those reported earlier. Professor AMcF opined that between 2000 and May 2006 the Complainant’s PTSD and MDD symptoms had been substantially controlled and he had not taken anti-depressants for 3 years. As a result he would not have been diagnosed as having any psychiatric disorder during that period. After the events of June 2006 the Complainant’s symptoms differed and an Adjustment Disorder was an appropriate diagnosis. This was supported, he said, by the Complainant’s rage and nightmares in which he killed the ‘wolf-pack’ members.

49.    Professor AMcF disagreed with Dr JG’s assessment that the 2006 events contributed only 3% of the total 20% degree of the Complainant’s impairment. The Professor discussed his research and reading of scientific reports supporting his contention that the inhibitory mechanisms that had evolved with treatment between 1996 and 2000 had been disrupted by the events of 2006. (Tribunal Note: details of the presumably neurological inhibitory process were not provided.) With time the Adjustment Disorder had been superseded by the reappearance of PTSD and MDD.

50.    Professor AMcF was provided with the reports of Dr BN for comment but continued to confirm his opinion including that the Complainant’s now frank TPD status was due to the 2006 stressor causing PTSD with both the stressor and the Complainant’s symptoms being different from those of 1995-1996. Several supporting examples were given but they do not add to the opinion. The report of 5 July 2016 states it to be a summary of Professor AMcF’s previous reports and while read by the Tribunal does not provide any new information but does provide further somewhat bizarre examples of symptoms being common to many diagnoses e.g. the fatigue/muscle aches associated with influenza do not impact on a subsequent diagnosis of rheumatoid arthritis with the same symptoms. (Tribunal Note: this simile is not acceptable as objective evidence, such as biochemical, haematological and radiological testing, will differentiate the two conditions).

32    Reading [49] and reading the material put forward by Professor McFarlane, there does not appear to be an appreciation in that paragraph of the importance of the separate condition of complex PTSD. In particular, I refer to the last sentence. It may be that the Tribunal in that summary has implicitly incorporated a view consistent with that of Dr Ng that complex PTSD should be best understood as PTSD. But the whole gist of the 2013 reports was not the reappearance of PTSD and MDD but the reassessment of what the condition was as a separate and independent condition.

33    Paragraphs [53] and [54] over approximately two pages set out the parties’ respective submissions and, in fairness, identify with some clarity the fact that the complainant was asserting an independent complex PTSD condition. The Tribunal’s deliberations, findings and conclusion are contained in 14 paragraphs from [55] to [69]. For ease and convenience of reading, I will set out all those paragraphs hereunder:

55.    Under s 37(6) of the Complaints Act the Tribunal must determine whether the decision of the Trustee to reject the Complainant’s claim for a TPD benefit was fair and reasonable in its operation in relation to the Complainant in the circumstances.

56.    The issue is not what decision the Tribunal would have made on the material before the Trustee but whether the decision was fair and reasonable.

57.    In reaching its determination, the Tribunal has taken into account all the material provided by the Parties, the provisions of the Trust Deed, the Insurance Terms and the relevant law. The Tribunal is satisfied that the material it has relief on has been provided to both Parties.

58.    There is no dispute between the Parties that the Complainant is TPD. However under the Insurance Terms, clause 6.2, as the Complainant has been a Fund member for less than 10 continuous years, he is only eligible to be paid an insurance benefit if, in the Trustee’s opinion, his TPD is not related to a medical condition, the signs or symptoms of which existed before he joined the Fund.

59.    It is acknowledged by both Parties that the Complainant was suffering from PTSD and MDD when he ceased working for the police force in 1996. The question for the Trustee was therefore whether the Complainant’s TPD was related to his previous PTSD and/or MDD.

60.    The Tribunal was provided with a vast volume of reports, many of which were generated for workers’ compensation purposes. The Tribunal considered that the majority of psychiatrists and psychologists who have seen the Complainant have made a diagnosis of relapsed or aggravated pre-existing PTSD and MDD. In many instances underlying paranoid personality traits have been identified.

61.    In particular the treating psychiatrist Dr JW who has had the care of the Complainant for over 10 years is of the opinion that the 2006 episode was a relapse of his PTSD. The treating psychologist Mr DB was of the same opinion. While the Complainant is said to have coped well between 2000 and March 2006 he had been employed during that period in a position where he was not in contact with other workers, he having his own office and being on the road by himself.

62.    With the exception of Dr SS, Professor AMcF and Ms SS, all psychiatrists and psychologists have referred to the diagnostic criteria established in DSM IV or IV TR, those being the editions accepted by the College of Psychiatrists and various Government bodies at the time.

63.    The Tribunal Medical Member has re-read her copy of DSM IV TR which delineates the severity of the stressor required to found a diagnosis of PTSD (Category A) and the Categories of symptoms B to D. To make a diagnosis of PTSD an individual must have 1 or more of the 5 symptoms in B; 3 or more of the 7 symptoms in C and 2 or more of the 5 symptoms in D. Category A stressors are widely defined. The symptoms reported by the Complainant both in 1996 and 2006 are included in these categories and on both occasions totalled 7 of the 17 listed although they differed slightly.

64.    As such the Tribunal was satisfied that DSM IV does not support Professor AMcF’s contention that the Complainant’s 2006 and thereafter symptoms differ from those of 1996 and in particular his stressing of the Complainant’s rage is mirrored by Dr RL’s report of severe anger in 1996.

65.    All of the psychiatrists have opined that PTSD is characterised by a high rate of relapse.

66.    While the Complainant is clearly TPD the Tribunal was of the opinion that the psychiatric disorders responsible for his impairment were present in varying degrees of severity from 1995.

67.    The Tribunal was satisfied on the evidence before it that it was open to the Trustee to determine that the Complainant’s TPD related to a medical condition, the signs and symptoms of which existed prior to him joining the Fund.


68.    Under s 37(6) of the Complaints Act the Tribunal must affirm the decision under review if it is satisfied that the decision, in its operation in relation to the Complainant, was fair and reasonable in the circumstances. The Tribunal is so satisfied.

69.    The Tribunal affirms the decision of the Trustee.

34    Argument focused upon the significance of what is contained in [62] to [67]. Paragraphs [55] to [61], broadly speaking, identify what was before the Tribunal and what the issue was. Paragraph [62] identifies that with the exception of Dr Selwyn Smith (who can be put to one side for present purposes), Professor McFarlane and Ms Stern, all psychiatrists and psychologists have referred to the diagnostic criteria in DSM-IV or DSM-IV-TR. Paragraph [63] refers to the use of the DSM-IV-TR by the medical Tribunal medical member. It is plain from [62] to [64] that the Tribunal in its reasoning process was placing the DSM-IV-TR as centrally important to its reasoning. In [64], the Tribunal commences with the words “as such” meaning as such, the Tribunal was satisfied that DSM-IV does not support Professor McFarlane.

35    That can possibly be read as a rejection of Professor McFarlane’s contention of the differences between the 2007 and following condition and the 1996 and following condition. It was put by the respondent that that was in the reasoning process rejecting the way Professor McFarlane evaluated the condition and not necessarily by using DSM-IV as a tool to reject his 2013 views. The difficulty I have is that properly read and without an eye attuned to error, the Tribunal appears in [62] to [64] to be dealing with Professor McFarlane’s views by reference to the application of DSM-IV. As I have earlier indicated, Professor McFarlane himself in his 2013 view, accepts and says that the usage of complex PTSD is not found or included within the DSM system.

36    Thus, the difficulty with how Professor McFarlane’s evidence has been dealt with is that there is an absence of engagement with the material that is at the fulcrum of the case and claim of Mr Carrette. In [65], the Tribunal says that all the psychiatrists were of the view that PTSD is characterised by a high rate of relapse. There was no submission put to the contrary, but it does not again, deal with the central feature of Professor McFarlane’s report. Paragraphs [66] and [67] in their terms are conclusions as to the fundamental relationship between the present condition and the earlier condition. They are conclusory and are supported, if they are, by the reasoning that precedes them.

37    I take into account the submissions of Mr Hickey about [49] and [50] of the reasons that though they are in the section of the reasons dealing with a simple recounting of Professor McFarlane’s reports, they contain sufficient implicit criticism as to warrant the view that really all that is being done in [62] to [67] is a rejection of Professor McFarlane’s views about complex PTSD along the lines of the contrary evidence of Dr Ng. These are not submissions without force, but they are submissions without, in my respectful view, adequate expression by the Tribunal. I am not left from what the Tribunal has written with the view that the Tribunal has engaged, in any real sense, with the views of Professor McFarlane in 2013.

38    Criticism is made of [63] and [64] by the applicant. By reference to the well-known and influential decision of Spigelman CJ with whom Mason P and Meagher JA agreed in New South Wales v Seedsman [2000] NSWCA 119; 217 ALR 583 at [114] to [119]. In this case, Spigelman CJ was at pains to make clear the function and role of DSM-IV in the context of applications for compensation such as this. A number of other decisions that are referred to in the helpful submissions touch on the question of the status of DSM-IV as well. I do not base my decision upon any independent ground that there has been a legally inflexible use of DSM-IV. Nevertheless, the way the Tribunal expressed itself leads me to the conclusion that it has dismissed the views of Professor McFarlane by a simple application of criteria in DSM-IV on the assumption that is a framework of analysis for what Professor McFarlane says.

39    I do not see how, in any appropriate and genuine way (and I do not use that expression personally critically of the Tribunal) the Tribunal has engaged with Professor McFarlane’s views expressed in 2013. The result of this is not so much that the reasons are inadequate. The reasons are complete. The reasons show, in my view, a failure to engage with the critical parts of actual material that was before the Trustee and that was before the Tribunal. It may be that this conclusion is one that could well be reached by the weighing of Professor McFarlane’s views, Dr Ng’s views and the views of other practitioners directed to the way Professor McFarlane is analysing the matter.

40    But the Tribunal is not free, in my view, to deal with the central way Professor McFarlane put the matter by referring to DSM-IV, when, in effect, he accepts that DSM-IV is not the relevant framework. Whilst I am reluctant to set aside a decision of a Tribunal with the specialist medical knowledge, as in this case, and for all the reasons put forward by Mr Hickey in written submissions, in my view, there has been a failure to address essential material critical to the decision. How one characterises that, whether as a failure to engage with central material or the making of a decision in a manner which is unreasonable, or the failure to attend to the mandatory consideration of central material does not matter.

41    What has occurred, in my view, is failure to engage with the central material necessary for the Tribunal to form the view that this current condition of Mr Carrette is not unrelated to the earlier condition. The subject matter is not one which permits other than a remittal of the matter to the Tribunal to deal with all questions before it, including the status of Professor McFarlane’s views. In coming to this conclusion, I am not seeking to prescribe the depth at which, or the result for which, the material necessary points. The difficulty, in my respectful view, is that through the use of DSM-IV, the views of Professor McFarlane as to the complex PTSD and its independence have not been addressed, other than in what might be seen as a mechanical way, which reflects, I think, a view that he has said (when he has not), that the problem is PTSD or MDD.

42    In those circumstances, I would set aside the decision of the Superannuation Complaints Tribunal made 20 September 2016 and remit the matter to the Tribunal for re-hearing. I order the second respondent to pay the costs of the applicant.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.


Dated:    29 May 2017