Federal Court of Australia

Edser v QSuper Board [2021] FCA 1437

ORDERS

THE COURT ORDERS THAT:

1.    The determination made by the Australian Financial Complaints Authority on 26 February 2021 be set aside.

2.    The matter be remitted to the Australian Financial Complaints Authority for redetermination in accordance with these reasons.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The Applicant, Mr Edser, appeals from a determination of the Second Respondent, the Australian Financial Complaints Authority Ltd (‘AFCA’), made on 26 February 2021. It affirmed a decision of the First Respondent, the QSuper Board (‘QSuper’), not to pay him a total and permanent disablement (‘TPD’) benefit under the auspices of the superannuation account he maintained with it. QSuper provides superannuation products and services to members of the Queensland Public Service.

Background

2    Mr Edser commenced working as a security guard for Queensland Health in October 2011 and became a member of QSuper on 31 October 2011. By mid-2012 he was working as a security officer at the Princess Alexandra Hospital in the employ of Queensland Health. Of significance for present purposes is that in mid-2012 he claimed, and it does not now appear to be in dispute, that he had reported workplace incidents involving the abuse of psychiatric patients at the hospital. Mr Edser says that as a result of his reporting of these incidents he himself was bullied and indeed, threatened in his workplace. He alleges that as a result of the bullying and threats he received he went on to develop an adjustment disorder with mixed anxiety and depressed mood, together with a major depressive disorder and post-traumatic stress disorder (‘PTSD’).

3    Mr Edser went on stress leave on 3 January 2013 from which he was unable to return. On 5 June 2013 his employment with Queensland Health was formally terminated. He then made an unsuccessful application for workers compensation. He has now made a claim on QSuper under the terms of the total disability insurance scheme it provided to some of its members including Mr Edser. The basis of his claim was that the mental conditions from which he was by then suffering had rendered him totally and permanently disabled from working.

4    The superannuation scheme in question is conducted under the auspices of the Superannuation (State Public Sector) Act 1990 (Qld), which also provides for a statutory corporation, QSuper, to be its trustee and for the scheme to be administered under the terms of a trust deed. The deed requires QSuper to provide TPD insurance for its members on terms which are to be determined by it. The insurance terms relevant to this case were determined by QSuper on 1 July 2011. I shall refer to these terms as the ‘insurance scheme’.

5    Initially, QSuper concluded that Mr Edser was not TPD under the terms of the insurance scheme but, following an internal review, the opposite conclusion was reached. Both of these decisions by QSuper were made on its behalf by delegates. However, whilst the internal review resulted in the conclusion that Mr Edser was TPD, it did not result in payment to him of any TPD benefit under the scheme. This was because the internal review delegate concluded that the benefit was not payable as a result of the operation of cl 6.2(b) of the insurance scheme which circumscribed a member’s entitlement to a TPD benefit. I will return to that clause shortly.

6    To round out the path by which Mr Edser’s case comes to be before this Court it is necessary briefly to explain the role of AFCA. As a beneficiary of the insurance scheme, it may have been open to Mr Edser to have commenced proceedings in equity against QSuper to overturn its invocation of cl 6.2(b). Another less burdensome route was, however, available to him. This was to make a ‘superannuation complaint’ to AFCA under s 1053 of the Corporations Act 2001 (Cth) (‘Corporations Act’). By s 1055 of that Act, AFCA was empowered to determine any such complaint and in doing so could exercise all the powers, obligations and discretions of the original decision maker (here, QSuper). If it believed that the original decision was fair and reasonable in all the circumstances, it was bound to affirm the decision. If it believed otherwise, it was empowered to vary it.

7    Thus following QSuper’s refusal to pay him the TPD benefit, Mr Edser made a superannuation complaint to AFCA. QSuper was joined to that complaint procedure and both Mr Edser and QSuper made submissions to a panel convened by AFCA as to how the complaint should be determined. Eventually, this panel concluded that QSuper’s decision was fair and reasonable in all the circumstances (in accordance with the language of s 1055) and affirmed that decision. It did so because whilst it too accepted that Mr Edser was TPD, it also considered that cl 6.2(b) of the insurance scheme stood in the way of his claim.

8    By s 1057 of the Corporations Act an appeal then lies from a decision of AFCA to this Court but only on a question of law. Mr Edser’s appeal to this Court is made under that provision. Although the formal decision maker was AFCA it is convenient to refer to the decision maker as the panel.

9    It will be seen from the above that the role of cl 6.2(b) looms large. Clause 6.2 provides:

6.2    No death or total and permanent disablement insurance benefit will be paid for a claim unless:

(a)    the member has been an insured member for 7 continuous years or more; or

(b)    

(i)    the member has been an insured member for fewer than 7 continuous years; and

(ii)    in the board’s opinion, the member’s total and permanent disablement or death was not related to a pre-existing medical condition; or

(c)

(i)    the member has been an insured member for at least 2 continuous years but fewer than 7 continuous years; and

(ii)    in the board’s opinion, the member’s total and permanent disablement or death was related to a pre-existing medical condition.

(d)     Where sub-clause 6.2(c) applies the insured member’s insurance benefit shall be determined in accordance with the following formula – Standard insured benefit x 0.1 plus 0.015 for every month of insured membership the member has over 2 years.

10    There were several debates between the parties about the meaning of this clause. However, they were in agreement that cl 6.2 provided for the payment of the TPD benefit in three circumstances. The first of these was where the claimant had been an insured member of the scheme for 7 or more years. In that case, it did not matter if the claimed TPD had some connection with a pre-existing medical condition or not. If the member became TPD the full benefit was simply to be paid without any inquiry into pre-existing medical conditions. This circumstance was governed by cl 6.2(a).

11    The second circumstance in which the parties agreed a TPD benefit was payable concerned the situation where a claimant had been a member of the scheme for less than 7 years. In this case the full TPD benefit could be paid, but only if the claimed TPD ‘was not related to a pre-existing medical condition’. This circumstance was governed by cl 6.2(b). The words ‘was not’ should be noted.

12    The third situation upon which the parties agreed was related to the second. They agreed that where the claimant had been a member for between 2 and 7 years and the claimed TPD was related to a pre-existing medical condition, a benefit was payable but not the full benefit. Instead, a pro-rata benefit calculated under cl 6.2(d) was payable. This situation was governed by cl 6.2(c). The upside of a claim under cl 6.2(c) is that the fact that the TPD is related to a pre-existing medical condition is not a bar to a successful claim. The downside is that, unlike a claim under cl 6.2(b), the full TPD benefit is not payable but is reduced in accordance with the formula in cl 6.2(d). A further difference between cl 6.2(b) and 6.2(c) is that the cl 6.2(b) route is available even to new members whereas the cl 6.2(c) pro-rated benefit is only available to claimants who have been members for between 2 and 7 years.

13    In its determination, the AFCA panel accepted that Mr Edser was TPD but felt that the mental conditions which rendered him such were ‘related to’ a pre-existing medical condition – effectively, an underlying depressive disorder. That conclusion apparently engaged cl 6.2(b), with the consequence that Mr Edser was not eligible for a TPD benefit. I say ‘apparently’ because whether it did so is one of the issues in this appeal.

The Structure of the Present Appeal

14    Mr Edser appeals to this Court on six questions of law. The fifth of these questions was not pressed, and as will be seen, Questions 2 and 6 are related. Accordingly, the resolution of these proceedings essentially turns on four matters: whether AFCA failed to consider a mandatory relevant consideration, the definition of ‘pre-existing medical condition’, the proper construction of the words ‘not related to’ in cl 6.2(b), and the alleged application of the Insurance Contracts Act 1984 (Cth).

Question 1: Failure to consider a mandatory relevant consideration

15    Turning then to the first of Mr Edser’s arguments, which was a contention that the panel had not determined the duration of his insured membership with QSuper. From this it followed, he said, that the panel did not consider his eligibility for a benefit under cl 6.2(c) and as such, that it did not properly inform itself as to whether the decision was a ‘fair and reasonable’ one within the meaning of s 1055. This argument was encapsulated by Question 1 of the Amended Notice of Appeal, which was in these terms:

1.    Whether the Authority erred in law by failing to take into account a mandatory relevant consideration, being the duration of the Applicant’s insured membership of ‘QSuper’ for the purposes of clause 6.2 of the Insurance Terms, or otherwise failed to properly inform itself as to the duration of the Applicant’s insured membership of QSuper.

16    I do not accept this submission because it is clear that if the panel had considered whether Mr Edser was eligible under cl 6.2(c) it would have been bound to conclude that he was not. Why? The Applicant’s entitlement to make a claim under cl 6.2(c) does not turn only upon the conclusion that his TPD was related to a pre-existing medical condition (cl 6.2(c)(ii)). It also turns on his having been an ‘insured member’ for between 2 and 7 years (cl 6.2(c)(i)). By cl 1.1, an insured member is a member insured under the terms of the insurance scheme. The implication of this apparently innocuous definition is that the periods of time being discussed in cl 6.2 concern not the length of time a person is a member of the superannuation fund itself but instead the period of time that the person is covered by the insurance scheme. Whilst it is natural to think that it is likely that a person will become covered by the insurance scheme at the same time as they join the superannuation fund (and this, no doubt, will usually be the case), the converse is by no means true. It is possible that a member might continue to be a member of the superannuation fund whilst ceasing to be covered by the insurance scheme. Indeed, as will shortly be seen, that is precisely what has happened in this case.

17    I make this point so as to reject Mr Kelsey-Sugg’s submission on behalf of Mr Edser that whilst he remained a member of the superannuation fund it was possible for QSuper to deduct the relevant premium from his accumulation account and thus possible that he had continued to pay a premium for a period of more than two years. No doubt this true – but Mr Edser’s membership of the superannuation fund and the fact that QSuper may have had an entitlement to deduct (or indeed, did deduct) any premium which was due throw no light on when his membership of the insurance scheme came to an end. To determine the answer to that question one must consult the terms of the insurance scheme itself. What are the relevant terms of that scheme?

18    By cl 3.2 of the insurance scheme, new employed members became insured members of the fund’s insurance scheme from the date of their membership of the superannuation fund. As the panel recorded in its decision, Mr Edser became a member in this sense on 31 October 2011. This is not disputed. When the insurance was to come to an end, however, was governed by cl 11.1. Clause 11.1 relevantly provides:

11.1    The insurance of an insured member will automatically cease upon the earlier of:

(a)    the benefit ceasing age of the insured member;

(b)    the date of death or total and permanent disablement of the insured member; or

(c)    the date which is 4 weeks after the date of termination of employment of the insured member with the exception that any Income Protection Insurance will cease on the date of termination of employment.

19    It will be seen that both (b) and (c) underscore the point just made. The occurrence of either event would not have the effect of closing Mr Edser’s accumulation account with QSuper (or terminating his membership of that fund) but both would terminate his status as an insured member within the meaning of cl 6.2.

20    Returning then to cl 11.1 itself in order to determine when Mr Edser ceased to be an insured member, it will be observed that it identifies three dates, two of which – the dates in cl 11.1(b) and (c) – are relevant. It is from the earlier of these two dates that Mr Edser will have ceased to be an insured member.

21    The date in cl 11.1(b) is defined in cl 4.4. Clause 4.4 provides that, for the purpose of calculating a benefit, the date upon which an insured member shall be considered to have suffered total and permanent disablement will be the later of the dates on which: (a) the sickness or injury causing the TPD commenced or occurred; or (b) the member ceased to be at work due to the sickness or injury causing the TPD. The workplace incidents occurred in mid-2012 and Mr Edser went on stress leave on 3 January 2013 from which he did not return. Both of these matters were recorded in the panel’s decision. The date of the Applicant’s permanent disablement was therefore 3 January 2013.

22    The date in cl 11.1(c) was 4 weeks after the termination of his employment. The panel recorded in its reasons that he formally ceased employment with Queensland Health on 5 June 2013. It follows that the date in cl 11.1(c) was 4 weeks after that date: 3 July 2013.

23    The earlier of these two dates is 3 January 2013 so the effect of cl 11.1 is that Mr Edser ceased to be an insured member at the end of that day. He was therefore an insured member within the meaning of cl 6.2 for the inclusive period between 31 October 2011 and 3 January 2013. This being a period of less than 2 years, Mr Edser was never eligible to make a claim under cl 6.2(c) since he had not been an insured member for at least that period of time. The conclusion that it was cl 6.2(b) and not cl 6.2(c) which was therefore to apply was not, contrary to Mr Kelsey-Sugg’s submission, a jointly shared misconception but rather an accurate understanding of what the undisputed facts inevitably implied.

24    For completeness, I would infer that the reason that the panel did not discuss cl 6.2(c) in its reasons was that the dates it set out in those reasons meant that cl 6.2(c) had no application. The fact that neither party suggested to the panel that cl 6.2(c) should be considered is most readily explicable on the basis that the parties understood the obvious to be the case as well. This is not one of those cases, therefore, where the hearing before a decision maker has gone awry because some significant matter was overlooked. Rather, it is a case where an attempt has been made to pursue on appeal a point not seriously considered by any party below because it was correctly understood to be wrong.

25    Further, whilst it is true as Mr Edser submits that the panel was obliged to ‘set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based’ (Acts Interpretation Act 1901 (Cth) s 25D; Corporations Act s 1055A), it is also well-established that provisions of this sort do not impose an enforceable obligation on a decision maker to make any particular finding of fact: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (‘Yusuf’) at [10] per Gleeson CJ and [68]-[69] per McHugh, Gummow and Hayne JJ. Rather, the fact that a finding is not made permits an inference to be drawn that the decision maker did not regard the fact as material to its deliberations: Yusuf at [5] per Gleeson CJ. The inference does not have to be drawn but where it is it can be used, in some cases, to support a contention that a decision maker has failed to take the omitted matter into account. In this case, I would draw the inference permitted by Yusuf and conclude that the panel did not regard the duration of the Applicant’s membership as material to its deliberations. However, I would also infer that was because the parties were correctly in agreement that cl 6.2(b) applied.

26    In considering Mr Edser’s submissions that the panel ought to have considered the effect of cl 6.2(c) I propose to assume in his favour that: (a) he is procedurally entitled to mount such an argument in this Court notwithstanding that he did not rely upon cl 6.2(c) in his superannuation complaint to AFCA; and (b) the argument now presented involves a ‘question of law’ within the meaning of s 1057 of the Corporations Act and hence is within the jurisdiction of this Court. Even allowing both of these matters, the suggested error must be immaterial to the outcome. Even if the panel had considered cl 6.2(c), as Mr Edser suggests it should, on the findings the panel had itself made it would have been bound to conclude that he was not eligible under it.

27    For this reason, I would answer this question ‘whether it did so or not was not material to its deliberations. The Applicant was never eligible under cl 6.2(c).’

Question 3: The definition of ‘pre-existing medical condition’

28    Mr Edser next submitted that the panel should have construed the expression ‘pre-existing medical condition’ more liberally. That expression was defined in cl 1.1 to mean ‘except to the extent that the context otherwise requires…a medical condition the signs or symptoms of which existed before the start of the member’s insured membership’. In the Applicant’s written submissions the argument was that the panel had erroneously construed the definition as including a medical condition the signs or symptoms of which had existed at any time before the start of the insured membership; or a medical condition the signs and symptoms of which were in remission or resolve; or, a medical condition with no definitive diagnosis. This was, in the Applicant’s view, too expansive a meaning given its text and the context in which the term appeared.

29    In Mr Kelsey-Sugg’s address on behalf of Mr Edser this contention was further refined (T25). He argued that the panel had treated the medical evidence before it – which appeared to include, inter alia, a prior diagnosis of depression in 1998 – as pointing to the existence of a continuous depressive condition which existed right up until Mr Edser became an insured member. But, so the submission went, the evidence of several of the doctors which was provided to the panel was to the effect that a depressive condition or episode, including its signs and symptoms, might resolve. It was therefore erroneous to treat separate incidents as effectively only one condition.

30    This submission was couched in terms of a construction argument about the definition of ‘pre-existing medical condition’ in cl 1.1. However, in my view it is not a construction argument. Before the panel there was a live dispute as to how Mr Edser’s earlier history of depressive conditions was correctly to be characterised. Two views vied for the field. The first, which was advanced by QSuper, was that the Mr Edser’s depressive episodes (including those which he experienced after mid-2012) were instances of a single underlying depressive condition which had manifested itself. The second, advanced by Mr Edser, was that these episodes were distinct medical conditions, each of which had fully resolved and as such did not reflect the existence of a single underlying depressive condition. There was evidence before the panel capable of supporting both views.

31    The panel thought that the preferable view was that there was a single underlying depressive condition. That being its factual conclusion, I am unable to see how it can be said that it misapplied the definition in concluding that that condition was a ‘medical condition the signs or symptoms of which existed before the start of the member’s insured membership’. On the facts it had found it plainly was.

32    As formally stated this argument was posed by Question 3 of the Amended Notice of Appeal. Question 3 was in these terms:

3.    Whether the Authority erred in law by misconstruing or misapplying the definition of ‘pre-existing medical condition’ in the Insurance Terms as including:

(a)    a medical condition the signs or symptoms of which had existed at any time before the start of insured membership; or

(b)    a medical condition the signs or symptoms of which were in remission or resolved; or

(c)    a medical condition with no definitive diagnosis.

33    Stated this way, the Question does not match up with the argument which was advanced in support of it. I would answer this question ‘the panel did not construe the definition in the way suggested’. In any event, no occasion arises to interfere with the decision made by the panel on this basis.

Question 4: The proper construction of the words ‘not related to’ in cl 6.2(b)

34    There is no doubt that prior to becoming a member of QSuper Mr Edser suffered from a number of episodes of depression. There was extensive medical evidence before the panel about these episodes. As I have said, the battlelines were drawn over the issue of whether these events were evidence of a single underlying condition or instead unrelated events which had resolved. The panel preferred the former view. Following a review of the medical evidence it therefore said this:

The panel was satisfied the complainant had previously suffered and been diagnosed with major depression evidenced by symptoms of depression and anxiety at various times prior to the commencement of insurance coverage.

35    However, it was not enough for the panel merely to identify that Mr Edser had some pre-existing medical condition. The language of cl 6.2(b)(ii) cast upon it the burden of a answering a further question. For Mr Edser to be eligible for the TPD benefit the panel had to be satisfied that the TPD was ‘not related to’ the pre-existing medical condition. This required the panel to reach a view on the meaning of ‘related to’. It did so, and concluded that ‘if the complainant’s identified pre-existing medical condition was causally or clearly connected to the complainant’s TPD, clause 6.2 operated to exclude payment of his TPD benefit’.

36    Mr Edser submitted that this required him to negative the existence of any causal link between his pre-existing medical condition and his TPD. This was, he submitted, an unsound interpretation of cl 6.2(b). It was unsound because if one accepted that ‘related to’ implied a clear causal connection between the pre-existing condition and the TPD, the complement of that – ‘not related to’ – implied no clear causal connection. The key here was that the concept of no clear causal connection did not entail no causal connection at all. There remained a logical residue in the expression constituted by that class of causal connections falling short of being clear ones. In effect, Mr Edser submitted that the requirement that the TPD be ‘not related to’ the pre-existing medical condition did not mean that there could be no causal connection at all between the two conditions, but rather that any such connection could not be one to which the description ‘clear’ could appositely be applied.

37    At this point one may be tempted to ask rhetorically: why does this exercise in fine grain semantics matter? Certainly, that question occurred to me. Before turning to Mr Kelsey-Sugg’s actual answer to this question on the specific facts of this case, it is convenient to begin with an example which may throw the problem at hand into clearer relief. Imagine a person with a pre-existing medical condition consisting of having only one arm. The person habitually drives their car by alternating the remaining arm between the steering wheel and the gear stick of their manual car. Whilst changing gears the person loses control of the vehicle and crashes the vehicle. A range of injuries are suffered which result in the person being TPD. In this example there is undoubtedly a causal connection between the TPD and the pre-existing medical condition. Reasonable minds may differ, however, on whether it can be said that the connection is clear one. Why precisely minds do differ on the question is itself to an extent obscure. Perhaps it is an intuitive sense that the kind of causal connection contemplated by cl 6.2(b) is one in which the causality should lie in the medical domain. Or maybe a closer examination of the facts would suggest a more exiguous connection than first appears. Here the thinking might be that although the underlying medical condition – the absence of an arm – caused the person to drive with one arm, it was not the direct cause of the accident. A further interceding event was necessary – the use of the remaining arm in a way which resulted in the loss of control of the vehicle and a set of final steps consisting of the crashing of the vehicle in such a manner as to result in injuries leading to TPD. Viewed in this way, that is as a chain of events with each link in the chain being causally indispensable, the pre-existing medical condition remains a cause of the TPD in the sense that it is a necessary although insufficient cause. Its role as a clear cause, however, is more contestable.

38    It is not necessary to resolve this conundrum. What the illustration serves to demonstrate is the nature of Mr Edser’s argument. Accepting for the sake of argument that the panel’s conclusion that Mr Edser had a pre-existing medical condition of depressive illness is correct, he submits that in the causal space between it and his TPD lie a series of events whose causal potency must be assayed. These events are the bullying and threats he suffered. As the panel noted, the TPD was variously diagnosed as an adjustment disorder with mixed anxiety and depressed mood, major depressive disorder and PTSD. It was impossible, so Mr Edser submits, to determine whether his pre-existing condition was a clear cause of his TPD without having some understanding of the extent of the role that the bullying and threats had played in the TPD.

39    To take an example, the bullying and threats might have been so extreme that any person, no matter how well-adjusted, would have suffered an adjustment disorder, a major depressive disorder and PTSD if exposed to them. Mr Edser’s submission did not, however, depend on a thought experiment of this kind. Instead, he submitted that the evidence of one of the doctors who gave evidence to the panel made this very point. This doctor was Professor Alexander McFarlane, a Professor of Psychiatry in the School of Medicine at the University of Adelaide, who is an acknowledged expert in the field. He was retained by AFCA and asked a number of questions. One of the matters upon which he was asked to advise was:

…whether there was a relationship between the complainant’s medical condition prior to the 2011 cover date and his condition in 2014 or whether they were unrelated.

40    In his report, Professor McFarlane reached the conclusion that:

…having considered the body of information provided, the episodes of depression that the complainant had experienced prior to 2011 are related to the condition that he developed and experienced in 2014. Those prior episodes influenced both the severity of his symptoms and the probability of their reoccurrence.

41    In reaching that conclusion he made this observation along the way:

The question then arises as to what the relationship is between Mr Edser’s prior episodes of depression and the episode of depression he developed subsequent to this employment in November 2011. It is important to not dismiss the significance of the stressors that Mr Edser was exposed to in his employment or their capacity, independent of his prior history or vulnerability, to cause a psychiatric disorder. In this context, the word vulnerability indicates that an individual has a greater probability of developing an episode of depression due to the fact of his experiencing previous episodes of depression. In my opinion, there was a significant risk to his mental health as a consequence of the exposures that are the subject of the compensation claim arising from this period of employment beginning in 2011. In this setting risk refers to the probability that an asymptomatic individual will develop an episode of a psychiatric disorder. However, that is not the question that I have been asked to express an opinion about. The question is as to the nature of the relationship between his prior episodes or psychiatric symptomatology and his subsequent symptoms.

(Emphasis added)

42    Mr Kelsey-Sugg placed particular reliance upon the emphasised passage for two purposes. First, to demonstrate that the bullying and threats would have presented a significant risk to Mr Edser’s mental health even if he had been an asymptomatic individual (I return later to the ambiguity in Professor McFarlane’s use of the expression ‘asymptomatic individual’). Secondly, to show that the panel had been informed of this by Professor McFarlane who nevertheless proceeded to answer the question the panel had asked him

43    The final form of Mr Edser’s submission was that if the bullying and threats had themselves been sufficient to cause the TPD then this would entail that the TPD was ‘not related to’ his pre-existing depression. So far as the construction of cl 6.2(b) was concerned, this would be because whilst the pre-existing depression might be seen as causally connected to the TPD (as Professor McFarlane accepted) the connection was not one which was, in the requisite sense, clear. On this view, AFCA could not answer the question posed by cl 6.2(b) without also asking Professor McFarlane about the role that the threats and bullying played in the TPD because it was only by doing so that the size of the role played by the pre-existing condition could be determined.

44    Mr Kelsey-Sugg submitted that this argument was supported by the decision of Sackville J in Preston v AIA Australia Ltd [2014] NSWCA 165 at [81], where it was said that:

Without attempting an exhaustive classification, there is a third kind of case which was the subject of discussion in oral argument. An insured might suffer an accidental physical injury which is sufficient in itself to cause permanent disablement. The accident might also aggravate or activate a pre-existing condition which, independently of the direct consequences of the physical injury, is also sufficient in itself to cause total disablement. An example is an accident in which the insured suffers a serious hand injury and also a back injury which aggravates an existing back condition. Let it be assumed that each of the hand injury and the aggravated back condition is sufficient to prevent the insured working at his or her usual occupation and thus renders the insured totally disabled. In this situation, the better view is that the injury to the hand results solely and directly in total disablement and does so independently of the aggravation of the pre-existing back condition.

45    It was submitted that this was an example of a similar style of reasoning, that is to say, an example of a court having approached pre-existing medical conditions in a way which seeks to gauge their causal significance.

46    In assessing this submission it is important to keep one’s eye focussed on the precise nature of the debate. That nature is framed by the question of law which has been posed. That question is Question 4 of the Amended Notice of Appeal, which is in the following terms:

4.    Whether the Authority erred in law by misconstruing and/or misapplying the words ‘not related to’ in sub-clause 6.2(b)(ii) of the Insurance Terms, as requiring in effect that there be no ‘causal nexus’ between the pre-existing medical condition and the total and permanent disablement, when that was not what sub-clause 6.2(b)(ii) required.

47    So expressed, there are two contentions. The first is that the panel in fact applied a test to Mr Edser’s case which required, in order for the TPD benefit to be payable under cl 6.2(b)(ii), that there should be no causal nexus between the pre-existing medical condition and the TPD. The second is that in doing so it misapplied cl 6.2(b)(ii) because the words ‘not related to’ did not authorise such an approach.

48    With respect to the panel, there is a degree of ambiguity in the approach that it took to the question of the requisite connection. Early in its reasons it gave some attention to the meaning of the words ‘related to’ in cl 6.2(b) and reached this conclusion:

In this context the panel was satisfied this intention was met if the words ‘related to’ were given the construction of a ‘clear connection’ being a ‘causal nexus’, rather than the wider ambit of ‘any connection’.

49    It then said:

The panel therefore considered if the complainant’s identified pre-existing medical condition was causally or clearly connected to the complainant’s TPD, clause 6.2 operated to exclude payment of his TPD benefit.

50    These two paragraphs are inconsistent. In the first, the panel suggests that ‘related to’ should connote the presence of a clear connection and that the nature of the connection is a causal one. In the second paragraph, however, it says that it will be sufficient if there is a causal connection or a clear connection. The difference between the two paragraphs is that the causal connection in the second does not appear to have to be a clear one and the clear connection does not appear to have to be causal. A more generous reading of these two paragraphs is that they should be read together and as involving the application of a clear causal connection test. Doing so would avoid the apparent inconsistency between the eschewing of an ‘any connection’ test in the first paragraph and the imposition of a connection test in the second paragraph not tethered to notions of causation.

51    There is of course authority which counsels against reading the reasons given by administrative decision makers with an overly pedantic outlook, particularly where they comprise non-professional lawyers: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. If matters rested there, I would apply Wu Shan Liang and afford the panel’s reasons this more generous interpretation.

52    That, however, is not the end of the matter. Subsequently in its reasons the panel made this statement:

The panel therefore accepts the complainant’s TPD is clearly connected to both his vulnerabilities to and his recurrent presentations for, and diagnoses of depression and anxiety and find that ‘but for’ the existence of the pre-existing medical conditions, the 2012 workplace stressor may not have resulted in him becoming TPD.

53    (The reference to ‘vulnerabilities’ is not presently relevant and may be safely disregarded.) This passage would appear to be more consistent with the second paragraph set out above in the sense that it proceeds on the assumption that the clear connection question is not a causal one. I say that because if the panel had been applying the clear connection standard as a part of a test for causation then it would have had no need to go on to refer to the but-for standard. Put another way, if ‘clear connection’ connoted causation it would necessarily include a but-for element. Read that way, it would appear that the panel applied a clear connection test (not involving causation) and a separate causation standard (the but-for test) and that it found that both were satisfied. Again, however, this may be said to involve over-analysis in the Wu Shan Liang sense.

54    The last word on the topic was the panel’s eventual conclusion which was couched in these terms:

Accordingly, the panel found the complainant’s pre-existing medical condition and his TPD were causally or clearly connected with the meaning of clause 6.2 of the insurance terms.

55    This too utilises the language set out in the second paragraph of its introductory discussion. What test then did the panel apply? This is, at the end of the day, a question of fact. Although I am conscious of the warning in Wu Shan Liang, I do not think that in this case it would be appropriate to take the panel other than at its word. In part, this is because a construction of the panel’s earlier discussion of the meaning of ‘related to’ as involving the postulation of a clear connection test does not gel with the later paragraphs which are not expressed that way. If I went down that path, I would not only need to construe differently the discussion of the meaning of ‘related to’ I would also then need to read the panel’s later discussion of the facts other than in their own terms. Doing so would result in the panel’s reference to the but-for test for causation being inexplicable.

56    In part my disinclination to give the panel’s reasons the benefit of the doubt under Wu Shan Liang also springs from the fact that the panel was very much alive to the significance of the meaning of ‘related to’ and adopted an approach to it revealing considerable sophistication. So much is shown by the fact that its construction was aided by reference to case law. For example, immediately before it stated its views on the meaning of ‘related to’ it had said this:

While it is accepted by case law that the words’ related to’ can operate under a wide ambit to mean ‘any connection’ it has also been held by courts the words should be considered in the ‘context in why they are used’. [Toohey’s Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 603 and Hatfield v Health Insurance Commission [1987] FCAR 462].

57    The panel accepted that cl 6.2 operated as an ‘exclusionary provision’. That is, that its intention was to preclude the payment of TPD benefits where TPD was connected to a previous medical condition, the signs and symptoms of which existed prior to cover being issued. In the panel’s opinion the clause operated as a ‘risk management measure’ given that the complainant was not required prior to the insurance commencing to make disclosures about his health or undergo any underwriting assessment.

58    One may infer, therefore, that the panel was conscious of the significance of the case law and – from a constructional point of view – the status of cl 6.2 as an exclusionary clause. This is not the handiwork of a legal ingénue. Consequently, I am not prepared to read the panel’s reasons other than on their own terms. To read the reasons as if they actually said that the panel was applying a clear connection test would be an exercise in wishful thinking on my part.

59    I therefore conclude that the better reading of the panel’s reasons is that it applied a two-limbed test to determine whether the words ‘related to’ were satisfied. This test entailed a consideration of whether: (a) there was a causal connection between Mr Edser’s pre-existing medical condition and his TPD; or (b) there was a clear connection (that being one which was not causal) between the two.

60    The panel then proceeded to apply both limbs of this test to Mr Edser’s case. Insofar as the first limb was applied, the panel’s treatment of it is set out above and involved the application of a but-for test for causation. It appears to me that Mr Edser is essentially correct to submit that in effect this put the panel in a position where it needed to satisfy itself that there was no causal relationship between his pre-existing medical condition and the TPD. Perhaps a more precise way of putting the matter is that the panel appears to have proceeded on the basis that if the TPD would not have occurred but for the existence of his pre-existing medical condition, then it could be said that the two were related within the meaning of cl 6.2(b)(ii).

61    The next question is whether this involved a misapplication of cl 6.2(b)(ii). In my view, it did. I accept QSuper’s submission that cll 6.2(b) and 6.2(c) travel together. Both require the positing of a single question: whether the TPD is related to a pre-existing medical condition. If the answer is no, then subject to its other requirements, the claim may proceed under cl 6.2(b). If the answer is yes, then subject to its other requirements, the claim may proceed under cl 6.2(c). The question in both cases is, however, the same. I do not accept Mr Edser’s submission that one should attempt to interpret ‘not related to’ in cl 6.2(b)(ii) in isolation. There is a single question about the meaning of the term ‘related to’. The answers which are received to that question then direct the decision maker down the complementary lines of inquiry in either cl 6.2(b) or cl 6.2(c).

62    The question which then arises is when is TPD ‘related to’ a pre-existing medical condition. This is question of construction of cl 6.2(b)(ii). The words ‘related to’ are elastic and, depending on context, connote a wide range of relationships of connection. As Beaumont and Lehane JJ observed in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 of the relationship required by the words ‘relates to’:

..it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.

63    I pressed both parties on what they thought the standard required by ‘relates to’ was. For Mr Edser, Mr Kelsey-Sugg submitted that what was required was that the pre-existing medical condition be a dominant, proximate or effective cause of the TPD (T71.27-31). For QSuper, Mr Holyoak submitted that it required that there should be a clear causal relationship with the pre-existing medical condition (T43.14-15).

64    There is no evidence of what the authors of the insurance scheme intended by cl 6.2(b). However, QSuper submitted that its purpose was tolerably clear. Where members became insured without having to make an application for that insurance, the insurer (i.e. QSuper) needed for prudential reasons to reduce its exposure to pre-existing claims. Put another way, in any TPD insurance arrangement, the question of whether there are any pre-existing conditions needs to be addressed. It may be addressed, as it often is, at the inception of a contract of insurance by the putative insured disclosing to the putative insurer their medical history and the putative insurer then imposing an exclusion or adjusting the premium in some way. Alternatively, cover may be granted without any disclosure of prior conditions but on terms which limit the availability of a benefit when claims are made on the policy that arise from or are related to pre-existing medical conditions.

65    I accept that this appears most likely to be the philosophy underpinning cl 6.2. It seems tolerably clear that a relationship of mere causation in the but-for sense cannot suffice for the purposes of cl 6.2(b) and (c). For example, it would seem eccentric that an insured member who was severely injured in a car accident on the way to a consultation with a general practitioner about a pre-existing medical condition would be denied an entitlement to the TPD benefit. Yet, if ‘relates to’ connotes a but-for causation requirement, cl 6.2(b) would operate to deny the benefit on account of the fact that, but for the pre-existing medical condition, the TPD would not have ensued.

66    On the other hand, I do not accept Mr Kelsey-Sugg’s proposal that the term ‘relates to’ requires the pre-existing medical condition to be the proximate, dominant or effective cause of the TPD either. This seems to be rather too much for the language of cl 6.2(b)(ii) to bear. In particular, I see nothing in its wording which indicates that cl 6.2(b)(ii) cannot operate where there are multiple non-trivial and sufficient causes of the TPD, including amongst them a pre-existing medical condition.

67    It seems to me that the most plausible interpretation of cl 6.2(b)(ii) is the one proposed by QSuper: that the connection required is one of clear causation. This standard will not be satisfied by the mere satisfaction of the but-for test. The decision maker will need to be satisfied that the pre-existing medical condition is causally connected to the TPD in a way which is clear.

68    Consequently, I accept that the panel did not correctly apply the correct causal standard. Instead, it asked itself two questions, neither of which was the correct one. It was not correct to ask whether the TPD was merely causally linked to the pre-existing medical condition because this was apt to encourage the application only of a but-for standard of causation. This risk appears, in fact, to have come to pass. Nor was it correct to ask – as the panel did – whether there was a clear connection without a causal element.

69    I would therefore allow Mr Edser’s claim on the basis of Question 4 and would answer the question ‘yes’. I reject QSuper’s submission that the question did not involve a question of law. It involved the proper construction of the words ‘relates to’, which is a question of law.

70    For completeness, it will be seen that it has not been necessary to deal with Mr Edser’s submission that Professor McFarlane’s evidence required the conclusion that the bullying and other threats were themselves sufficient causal factors to have resulted in Mr Edser’s TPD. The present appeal provides no means by which that contention could be assessed since it is not encompassed in the question posed.

71    In any event, there was other evidence before the panel on the issue cutting in both directions. Contrary to the submissions made on behalf of QSuper, I do not think that the argument advanced by Mr Kelsey-Sugg is in principle unavailable before the panel. Once a test of clear causation is applied I do not see the language of cl 6.2 as altogether ousting any contention that the effect of the bullying and threats was itself so substantial that it denied any clearly causative role to his pre-existing medical condition. It will depend on the facts. Certainly, if this argument is advanced to the panel on remitter it is a matter that it will need to address.

72    By the same token, and although I am not expressing a concluded view on the matter, there are some difficulties, surmountable perhaps, with the passage from Professor McFarlane’s report upon which Mr Edser places reliance. In particular, there are two ambiguities in the report which would need to be resolved for any proper consideration of the issues which arise. The first is the Professor’s reference to asymptomatic individuals. It is not clear whether by this Professor McFarlane meant persons devoid of any form of psychological disorder or whether he intended to refer to persons with an underlying condition not presently displaying symptoms. The second is that although he said that the stressors might produce psychiatric symptoms in such an individual, this does not necessarily equate to the symptoms which Mr Edser developed. Put another way, the stressors might have induced psychiatric symptoms in otherwise healthy individuals but it may not have made them TPD. In any event, the present litigation does not afford an opportunity to determine these issues.

Questions 2 and 6: The Insurance Contracts Act 1984 (Cth)

73    Section 47 of the Insurance Contracts Act 1984 (Cth) (‘Insurance Contracts Act’) provides:

 (1)    This section applies where a claim under a contract of insurance is made in respect of a loss that occurred as a result, in whole or in part, of a sickness or disability to which a person was subject or had at any time been subject.

(2)    Where, at the time when the contract was entered into, the insured was not aware of, and a reasonable person in the circumstances could not be expected to have been aware of, the sickness or disability, the insurer may not rely on a provision included in the contract that has the effect of limiting or excluding the insurer’s liability under the contract by reference to a sickness or disability to which the insured was subject at a time before the contract was entered into.

74    This provision harks from the lost golden era in which Commonwealth statutes were still written in English. The panel touched upon the Insurance Contracts Act but not s 47 in its reasons:

While not argued by the parties, it is noted and accepted by AFCA that the Insurance Contracts Act 1984 does not apply in the circumstances of this complaint. This position was determined on similar facts to those in this complaint by the Queensland Supreme Court of Appeal in Eddington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCQ 247.

75    Mr Edser submitted that in doing so the panel denied him procedural fairness. In his written submissions he also contended that ‘Eddington’ (I interpolate, Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCA 247) did not establish that the Act did not apply to his claim. This contention was associated with Questions 2 and 6 which are as follows:

2.    Whether the Authority erred in law by accepting and/or proceeding on the basis that the Insurance Contracts Act 1984 (Cth) did not apply to the circumstances of the complaint before it.

6.    Whether the Authority erred in law by making a determination adverse to the Applicant without according the Applicant procedural fairness.

76    I do not consider that Mr Edser was denied procedural fairness on this issue. If the panel had not mentioned the Insurance Contracts Act it is clear that there would have been no denial of procedural fairness. In circumstances where Mr Edser was not submitting that the panel should apply s 47 to his claim, it is difficult to see how the panel’s conclusion that the Act containing s 47 did not apply was adverse to his interests as he had chosen to advance them. If Mr Edser had advanced an argument that the panel should apply s 47 then I would accept that it would have been procedurally unfair for it to reject that submission on the basis that the Act did not apply without hearing from him. But that is not what happened.

77    There being no denial of procedural fairness there is no occasion to consider QSuper’s submission (or AFCA’s) that the Insurance Contracts Act does not apply to Mr Edser’s claim. The relevance of that contention is, as I understand it, that even if Mr Edser was denied procedural fairness on this issue, it was immaterial since the Insurance Contracts Act does not in fact apply. There are two possible bases upon which that contention might be pursued. First, it might be said that the relationship between Mr Edser and QSuper did not involve a contract of insurance but was rather in the nature of a trust relationship. This being so, the Insurance Contracts Act could not apply to Mr Edser’s claim since by s 8 it applies only to contracts of insurance. The determination of that issue would require close attendance to the factual circumstances in which Mr Edser became an insured member. While the existence of a trust relationship does not necessarily negative the possibility of a contractual relationship if the requisite intention to create legal relations is otherwise established, I would accept that it is certainly an obstacle which would need to be overcome.

78    Secondly, even if there was a contract of insurance between Mr Edser and QSuper then s 47 might be irrelevant on the basis that QSuper was engaged in ‘State insurance’ within the meaning of s 9(2). That provision carves out from the application of the Act contracts entered into in the course of State insurance. Consideration of this issue would require an analysis of the nature of QSuper as a statutory corporation, its relationship with the State of Queensland as a polity and some consideration of the concept of state insurance in s 9(2) and s 51(xiv) of the Constitution. It is not necessary to express a view about either matter.

79    I would thus answer Questions 2 and 6 ‘not necessary to answer’ and ‘no’ respectively.

Conclusions

80    Question 5, the only question not already dealt with, was not pressed. Similarly, although the amended notice of appeal sought to have this Court make a finding of fact, this was abandoned at the hearing.

81    In light of my conclusions on Question 4, Mr Edser is entitled to the relief he seeks. The orders I will make are that:

(1)    The determination of AFCA dated 26 February 2021 be set aside.

(2)    The matter be remitted to AFCA for redetermination in accordance with these reasons.

82    My impression is that QSuper must bear Mr Edser’s costs of the appeal and that I should make no order in relation to AFCA’s costs. However, I will hear the parties if they wish by arrangement with my Associate.

Associate:

Dated: 18 November 2021