Hutchinson v United Superannuation Pty Ltd [2002] FCA 1479

FEDERAL COURT OF AUSTRALIA

Hutchinson v United Superannuation Pty Ltd [2002] FCA 1479 LEON JAMES HUTCHINSON v UNITED SUPERANNUATION PTY LTD AND CITICORP LIFE INSURANCE LTD Q 84 OF 2002 DOWSETT J 27 NOVEMBER 2002 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 84 OF 2002

BETWEEN: LEON JAMES HUTCHINSON

APPLICANT

AND: UNITED SUPERANNUATION PTY LTD

FIRST RESPONDENT

CITICORP LIFE INSURANCE LTD

SECOND RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 27 NOVEMBER 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 84 OF 2002

BETWEEN: LEON JAMES HUTCHINSON

APPLICANT

AND: UNITED SUPERANNUATION PTY LTD

FIRST RESPONDENT

CITICORP LIFE INSURANCE LTD

SECOND RESPONDENT

JUDGE: DOWSETT J

DATE: 27 NOVEMBER 2002

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The present applicant was injured in a motor vehicle collision on 6 May 1999, suffering a blow to the head. He returned to work a few days later but experienced problems with concentration and vertigo and ceased work on 4 June 1999. He claimed to be totally and permanently disabled for work within the meaning of certain superannuation arrangements which were in place. However his claim was determined adversely. There were two relevant decisions under different arrangements. Both were reviewed by the Tribunal and are presently in issue. Nothing hangs on the distinction between them. The applicant applied to the Superannuation Complaints Tribunal (the "Tribunal") pursuant to s 14 of the Superannuation (Resolution of Complaints) Act 1993 Cth (the "Act"). Section 14 permits a complaint to the Tribunal that such a decision is, or was, unfair or unreasonable. Section 37 confers power upon the Tribunal to review a decision rejecting a claim of the present kind. Subsection 37(6) provides that the Tribunal must affirm a decision if it is satisfied that the decision was fair and reasonable in the circumstances. In the present case the Tribunal dismissed the applicant's complaint. 2 Pursuant to s 46 of the Act, a party may appeal to this Court from a determination of the Tribunal on a question of law. The amended notice of appeal identifies four grounds of appeal which are said to raise questions of law. The first is that the Tribunal did not give adequate reasons for the purposes of s 40 of the Act. The second is that there was no evidence before the Tribunal that the applicant had "a range of transferable skills" as found by the Tribunal. The third was that the Tribunal failed to take relevant considerations into account, namely the opinions of certain medical practitioners. The fourth was that the Tribunal applied the wrong test. The applicant has experienced serious difficulties in identifying anything which can be accurately described as a question of law. However it is appropriate that I deal with these grounds in turn with a view to identifying why they must fail for present purposes, regardless of whether they are questions of law. 3 In its reasons the Tribunal set out its understanding of the duty of the decision-makers. It referred particularly to the following passage from Scott v National Trust [1998] 2 All ER 705 at 717 as follows: Trustees must act in good faith, responsibly and reasonably. They must inform themselves, before making a decision, of matters which are relevant to the decision. These matters may not be limited to simple matters of fact, but will on occasion (indeed quite often) include taking advice from appropriate experts, whether the experts are lawyers, accountants, actuaries, surveyors, scientists or whomsoever. It is however for advisers to advise and for trustees to decide: trustees may not (except insofar as they are authorised to do so) delegate the exercise of their discretions, even to experts. 4 With this understanding of the nature of the decisions which it was considering, the Tribunal then proceeded to consider the matter before it, concluding that: In all of the circumstances, given the Complainant's relatively young age and range of transferable skills, the Tribunal was satisfied that the decisions of the Trustee and the Insurer to reject the claim were fair and reasonable in all of the circumstances. 5 There can be no dispute that the above passage accurately describes the appropriate test. However the applicant points to the fact that at the beginning of the paragraph which I have quoted, the Tribunal recorded that: ... (it was) not convinced that the complainant's condition was permanent. 6 The applicant's criticism is that this was in fact the question which the Tribunal considered and that its subsequent reference to the decisions as being fair and reasonable was really only a cosmetic addition. In other words, the Tribunal has not addressed the true question, disposing of the matter upon the allegedly erroneous basis that it was not convinced that the applicant's condition was permanent. As I observed in the course of argument, it is not clear to me that this argument could lead to a successful outcome for the applicant. If the Tribunal were satisfied that the decisions were unfair or unreasonable, it would then have had to consider how the discretions should have been exercised. If the Tribunal was not satisfied that the complainant's condition was permanent, any such exercise would inevitably be unfavourable to the applicant. 7 Be that as it may, I consider that the Tribunal addressed the correct question, namely whether or not the decisions were fair and reasonable. This flows from the structure of its reasons which are, contrary to other submissions made on behalf of the applicant, quite cogent and detailed. The history of the matter is set out in detail. The jurisdiction of the Tribunal is discussed, and the relevant documentary provisions set out. The expert evidence is then summarised and at the end of the evidence, the issues before the Tribunal are identified. In particular, the Tribunal observed: The main issue before the Tribunal is whether the decisions of the Trustee and the Insurer to deny the disablement claim were in their operation in relation to the Complainant, fair and reasonable in the circumstances. 8 The Tribunal summarised the applicant's medical condition and then summarised the medical evidence and the attitude taken by both the decision-makers and the Tribunal to it. It firstly observed: Whilst the medical opinions were not conclusive, the Tribunal could not conclude that the decisions made by the Trustee and the Insurer to reject the complainant's claim for a TPD benefit were in any way unfair or unreasonable in the circumstances. 9 The Tribunal then referred to the role of the decision-makers, to the authority to which I have already referred and to other authorities. On p 399 of the Appeal Book it observed: It is not for the Tribunal, however, to assess the process by which the Trustee made its decision. The Tribunal must look at the outcome of the Trustee and Insurer decisions and must assess whether the consequences of those decisions are fair and reasonable in their operation to the Complainant. 10 Reference was then made to the decision of the Full Court of this Court in National Mutual Life Association of Australasia Limited v Campbell [1999] FCA 1717 as follows: … the Full Court suggested that the Tribunal could not find an insurer decision to be unfair or unreasonable because the Tribunal 'merely preferred' one body of evidence over another. The Court found that the Tribunal had not 'merely preferred' one medical report over another, but had turned its mind to the nature of the illness (post-traumatic stress disorder) and the weight accorded to the respective independent and treating doctor's medical reports by the insurer. 11 The Tribunal continued: Turning its mind to the nature of the illness in this case, it was relevant that a neuropsychologist was of the view that the Complainant could perform his pre-injury duties at perhaps a lower level and that a neurologist did not detect any abnormality on examination. This evidence, coupled with the evidence from the complainant's own GP (Dr Lo) that complete recovery from this 'minor injury' was expected, led the Tribunal to conclude that the Complainant was likely in the future to engage in work for which he is reasonably qualified by education, training or experience. 12 The Tribunal observed: As at the date of the hearing, the Complainant was approximately 46 years of age with a range of transferable skills. He has experience in making on line bookings and in giving clerical support to a sales department, including in an on line capacity. He has worked as a travel consultant, an international liaison officer and in reservations for an airline. On moving to America in 1990 he gained work in a collections company and was promoted to a Customer Service Liaison Officer. However, the Complainant complained that he was unable to perform clerical duties due to short term memory less and that he was unable to use keyboards for any length of time without pain. 13 The Tribunal was well aware that the question which it was to answer was that posed, in effect, by s 14, namely whether the decisions were unfair and unreasonable having regard to personal factors specific to those of the applicant. I can see no justification for the view that the Tribunal failed to address the question with which it was charged. It is true that it made an observation as to its state of understanding of the complainant's condition. It seems to me, however, that this was invited by the way in which the applicant conducted the case before the Tribunal. A concerted attack was launched upon the evidence of unfavourable medical practitioners. I do not in any sense criticise the applicant for adopting that course. However that attack was obviously designed to demonstrate that other evidence, which indicated a different outcome, ought to have been preferred. This, in effect, invited the Tribunal to form its own view as to the effect of the medical evidence. In the course of considering whether or not the decisions were fair and reasonable it appears to have considered that matter. It cannot be criticised for having done so. It was not convinced that the complainant's condition was permanent. There was adequate evidence to support that view. 14 It is also submitted that the Tribunal failed to take account of the opinion of Dr Wolfman. Dr Wolfman appears to have been a consulting medical practitioner who saw the applicant in 1993 and diagnosed him as suffering from epilepsy. His report was referred to in some of the medical evidence although it was not before the Tribunal. It seems to have been inconsistent with some of the more recent medical evidence obtained following the 1999 incident. That does not lead to the conclusion that the Tribunal ought to have gone looking for Dr Wolfman's report and given more consideration to it. The Tribunal was aware that Dr Wolfman had seen the applicant in 1993 but had much more recent medical evidence upon which to act. I see nothing in this point. It is also said that the Tribunal failed to take account of the fact that Dr Loxton had seen the applicant on one occasion only, and that she was not the applicant's "own GP". I do not understand the relevance of this. These matters could go to nothing other than credit. I do not understand them to have been pressed in oral submissions. The credibility of Dr S was in issue. The applicant asserted that the views of Dr S were "invalid as he has no formal neuropsychological training." Dr S was not advanced as a person with neuropsychological training but rather as a consultant in rehabilitative medicine. The criticism was therefore without foundation. 15 It was also said that there was no evidence to justify the inference that the applicant had transferable skills. I have referred to the relevant passage. All that the Tribunal meant was that he had experience in a range of industries which were still active industries, implying that the skills were still in demand. They appear to be of relevance to a broad range of occupations. The Tribunal also noted the applicant's complaint that he was unable to perform clerical duties, but it was unconvinced that the applicant's condition was permanent. There was evidence to justify that conclusion. 16 Finally, as to the adequacy of the Tribunal's reasons, the Tribunal summarised its understanding of the evidence in some detail. I assume that the criticism is as to the way in which it converted its understanding of the evidence into its conclusion. This occurs on pp 398 - 400 of the Appeal Book, commencing with an examination of the role of the original decision-makers, followed by a brief consideration of the critical aspects of the evidence earlier identified and the particular circumstances of the complainant. In the second last paragraph on p 10 of its reasons, it referred to evidence which pointed to the conclusion that the complainant's condition involved a minor injury which was likely to yield no permanent consequences. In so doing, it identified its reason for concluding that the decision of the trustee was not unfair or unreasonable. There were good reasons for coming to the conclusion that the applicant did not satisfy the relevant test. The Tribunal merely identified some of them, perhaps the most important. I cannot see that any fair criticism can be made of the adequacy of the reasons. The appeal must be dismissed. 17 I order the applicant to pay the respondent's costs of the application.