consideration
59 The primary submission on behalf of the appellant on this appeal was that the Tribunal erred in holding, as it did, that for a complainant to succeed under the definition of "disablement" in cl 1.1 of the FAB Scheme trust deed, two conditions had to be met. The second of those was, in the Tribunal's words, "a resultant preclusion from ever working" in an area for which the complainant had relevant qualifications. It was submitted that there was no justification for importing this gloss upon the word "unable" in the definition. Rather, it was submitted, the Trustee had to be satisfied of nothing more than that there was "a medical state of physical or mental incapacity", and that, by reason of that incapacity, the complainant could not presently work in the relevant area.
60 If we may say so, that submission is entirely unpersuasive. When asked whether an injury, such as a broken hip, which prevents a person from engaging in ordinary employment, but is unlikely to lead to any permanent impairment, constitutes "disablement" for the purposes of the FAB Scheme, the answer given on behalf of the appellant was that it might. The same was said of potentially long-term illnesses such as chronic fatigue syndrome. On the other hand, short-term conditions, such as influenza, were distinguished on the basis that they did not give rise to "incapacity" on the part of the complainant, within the meaning of that term in rule 1.1.
61 Sensibly, an alternative submission was put forward on behalf of the appellant. It was contended that a distinction should be drawn between a statement to the effect that a person would never again be able to work in an area for which that person had relevant qualifications, and a statement to the effect that the person would not be able to do so "now and for the foreseeable future". It was submitted that a person who fell within the second of these two formulations, though not the first, was still relevantly "disabled" within the meaning of rule 1.1.
62 The primary judge referred separately to these two formulations at [65] of his reasons for judgment. It was submitted, however, that his Honour had erroneously conflated them, in effect treating them as having the same meaning. It was because his Honour saw no difference between them that he concluded that the Tribunal had not erred when it rejected the appellant's claim on the basis that she had not demonstrated "a resultant preclusion from ever working" in a relevant area.
63 There were several strands to this modified form of the appellant's submission. It was noted, for example, that the definition of "disablement" in rule 1.1 did not have attached to it any qualifying adjective such as "total" or "permanent". The expressions "physical or mental incapacity" and "unable" stood alone. They did not have the additional language that followed the word "unable" in the policy, namely "and unlikely ever again to be able…".
64 The stark contrast became even more apparent when it was seen that the additional language appeared in a paragraph in the Residual Fund trust deed which immediately preceded the paragraph that replicated the definition of "disablement" in rule 1.1 of the FAB Scheme trust deed. The drafter of the Residual Fund trust deed plainly saw a sharp distinction between these two formulations, and, by implication, regarded the limb that was applicable to the appellant as less stringent than that which replicated the TPD definition.
65 A useful starting point, when considering the appellant's argument, is to have regard to the ordinary and natural meaning of the two key terms in the definition of "disablement" in rule 1.1, namely "incapacity" and "unable".
66 The Oxford English Dictionary relevantly defines "incapacity" as including:
"Want of capacity; inability, powerlessness; incompetence, natural disqualification; incapability".
67 There is nothing in this definition that distinguishes between an incapacity that is temporary and one that is permanent. Some assistance may be gained from the attachment of the words "physical or mental" to "incapacity", suggesting, at least in the context of "mental incapacity", a condition that is more than merely transient or temporary. It is a matter of common knowledge that a number of mental illnesses, though perhaps amenable to treatment, tend to be of lengthy duration. It is difficult to predict with any certainty whether and if so, when, any treatment will be effectual.
68 Even so, it does not follow that such a condition is necessarily permanent. One would hardly speak of a person unable to attend work because of an illness of finite duration as having a "physical incapacity".
69 Some assistance can be gained from authorities that have considered the term "incapacity" in the context of statutes dealing with ability to work. It is perhaps significant that these cases tend generally to focus upon the seriousness of the precipitating condition, rather than its duration: see, for example, Sinanoglou v Australian Iron and Steel Pty Ltd (1967) 68 SR (NSW) 279 at 289 and Repatriation Commission v Moss (1982) 59 FLR 226 at 240. In Ball v William Hunt & Sons, Limited [1912] AC 496 at 499-500, Earl Loreburn LC observed that an incapacity in the context of the Workmen's Compensation Act 1906 (UK) required a "physical defect" which rendered a person's labour "unsaleable" in any market reasonably accessible to that person.
70 There is one case that, though not directly in point, provides some additional assistance. In Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Insurance Cases ¶61-175, the plaintiff submitted a claim for a disablement benefit under a particular retirement fund. The relevant clause in the rules of the fund provided that an employee would be entitled to a lump sum as a disablement benefit upon his disablement "in being incapacitated for further employment". Hodgson J observed that the word "employment" in that context connoted full-time employment which was reasonably open to the member. His Honour went on to say, at 77,999:
"[t]he requirement that the incapacity be "for" further employment, carries with it, I think, the requirement that the incapacity be permanent or substantially permanent. Mere temporary incapacity would clearly be insufficient."
71 When one turns to the word "unable", the various Oxford English Dictionary definitions include:
"Not able, not having ability or power, to do or perform (undergo or experience) something specified"
…
Lacking ability in some implied respect; incompetent, inefficient".
…
Characterized by want of ability; inefficient, ineffectual
…
Of persons: Incapable of, not qualified for, some position
…
Not able to be (done); impossible".
72 The primary judge observed, correctly, that the meaning of the word "unable" depends upon context. There is nothing inherently "permanent" about the status of "incapacity" leading to "inability". A person may be unable to do something today that the person will, in all likelihood, be able to do at some stage in the future. For example, someone may have no grasp of mathematics at one point, but become an accomplished exponent at a later time. Indeed, there is authority for the proposition that the word "unable" should not be read, in ordinary parlance, as equivalent to "impossible": Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214 [1908] VLR 214 at 218 per A'Beckett J.
73 In fact, the primary judge was plainly well aware of the difficulty of injecting a false note of scientific certainty into what is, at best, an uncertain process of prediction. His Honour added a gloss to the notion of "unable" in the definition of "disablement" when he said, at [65], that this term connoted "permanently unable" or "unable now and for the foreseeable future".
74 With respect, that must be right. The problem is that, on one interpretation of the Tribunal's reasons, it did not see the matter that way. Rather, it imposed upon the appellant a greater hurdle than the FAB Scheme required, insisting that she satisfy the Trustee that, by reason of her state of physical or mental incapacity, she would never be able to work again in an area for which she had relevant qualifications.
75 Although the Tribunal regarded the two definitions of "disablement" that have been previously discussed as "compatible", in the sense that they both imply a component of future service, it seems to us to have gone further. It went on to say that, in its opinion, it was fair and reasonable that a member "is permanently unable to engage in any gainful occupation or business". It is true that it made that statement in the context of rejecting the appellant's submission that "unable" meant "unable" at a particular point in time. However, we think that, in the course of rejecting that submission, as it correctly did, the Tribunal created a false dichotomy between disablement that is permanent, and disablement that exists only at the present time.
76 The position seems to us to be more complex than this. In truth, there are more than two positions that can be taken. The question is whether an inability, by reason of physical or mental incapacity, to engage in gainful employment for the foreseeable future, renders a person "unable" to engage in such work, in the sense in which that term is used in rule 1.1. We consider that it does.
77 The distinction between a condition that is permanent, and one that is of indefinite duration, but will last for the foreseeable future, was, in a sense, at the heart of the decision of the High Court in Al-Kateb v Godwin(2004) 219 CLR 562. The context was entirely different, but both the majority view, and that of the dissentients, reflected precisely this distinction.
78 In addition, the distinction between these two formulations seems to be shared by a number of the medical experts who prepared reports concerning the appellant's future prospects. It may be difficult to say of a 33 year old woman whose diagnosis is uncertain, and whose condition is the subject of considerable controversy, that the likelihood is that she will never be able to work again, whether as a flight attendant, or in any alternative employment of a relevant kind. Not one medical expert was prepared to go so far as to state in unequivocal terms that her prognosis was as bleak as this. However, it is not nearly so difficult to say of a person (as a number of the medical experts did of the appellant) that she is totally incapacitated now, and that she is unlikely, at least for the foreseeable future, to be able to engage in any gainful employment.
79 There is a lurking possibility that the appellant's case, which was essentially that she was incapacitated now, and would be unable to work for the foreseeable future was never properly considered by the Tribunal. That is because her case, as supported by a number of medical experts, did not rise to the level of establishing that she would never again be able to work. However, given the definition of "disablement" in rule 1.1, the appellant was entitled to have her case considered not on the basis that she would never be able to work, but rather on the basis that she would not be able to do so for the foreseeable future.
80 The matter is perhaps illustrated by posing the following question. What would the Trustee have been required to do, under the FAB Scheme, had the medical opinions uniformly taken the following form:
"I cannot say whether or not the applicant for the benefit is permanently incapacitated. However, I can say that she is incapacitated now, and will be unable to work for the foreseeable future."
81 This question poses a litmus test for whether or not there is a difference between "permanently incapacitated", and "incapacitated now and for the foreseeable future". In the primary judge's reasons for judgment, at [65], the two formulations appear to be treated as indistinguishable. Indeed, counsel for the respondent endorsed that interpretation of his Honour's remarks, submitting that there was no difference between the tests, and describing the latter as merely a practical expression of how a decision-maker arrives at a finding of permanency.
82 It was submitted on behalf of the respondent that the question set out above is incapable of answer. It was submitted that this was because it required construction of what the medical experts might mean by "permanent" and "foreseeable", and what test might be brought to bear upon the facts that would lead to their reticence to opine permanency or otherwise. It was submitted that if the reticence to express an opinion was because the experts considered that scientific certainty was required in order to achieve requisite "permanence", that would be a misreading of what the FAB Scheme actually required. The law does not require proof of facts to a scientific certainty. Prognosis regarding ability to engage in particular types of work was, at best, an educated guess, and did not, in any event, involve a purely medical question. It was submitted that a better guide to the meaning of the relevant definition could be found from the scheme as a whole, noting the benefits payable under different exigencies. This was precisely the approach that had been taken by the primary judge.
83 There is some force in these submissions. There is also considerable force in the submission that the Tribunal's reasons for decision should be read in accordance with the well-known admonition of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31], that the
"reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed".
84 Giving due weight to these submissions, we are nonetheless of the view that the test posited by the Tribunal was incorrect as a matter of law. Its decision cannot be salvaged by the adoption of any of the respondent's submissions on the appeal. There is a fundamental difference, in our view, between an incapacity that is permanent (even allowing for some latitude in the scientific certainty required for that assessment), and an incapacity that exists now, and will continue to exist in the foreseeable future. The latter test represents a significantly less stringent hurdle for an appellant to overcome, and is the correct test to apply in relation to the definition of "disablement" in rule 1.1.
85 In formulating the test in that way, we acknowledge that there is a difference between an injury such as a broken leg which has a finite, though perhaps uncertain, duration before it will heal, and a condition that may never remit. It is the inability of the medical experts to see an end to the incapacity in the foreseeable future that seems to us to bring the case within the realm of "disablement", as it applies to the appellant. The problem with the Tribunal's decision is that it does not allow for that possibility.
86 The risk that the Tribunal applied a more stringent test than was actually applicable to the appellant, in the circumstances of her case, makes it wrong, in our view, to allow the Tribunal's decision to stand. It is one thing to recognise, as the Tribunal did, that its task was merely to determine whether what the Trustee did was "fair and reasonable". That requires the Tribunal to focus upon the outcome of the Trustee's deliberations, rather than the process by which that outcome was achieved. It is another thing altogether to view the Trustee's decision through the prism of an incorrect statement of the legal test that the appellant had to overcome in order to qualify for the benefit sought.
87 On one view, the Tribunal may have regarded the medical evidence in support of the appellant's case as more cogent than the evidence in opposition to her case, and still found against her. If it did so, simply on the basis that the Trustee's decision was fair and reasonable, there would be nothing wrong, as a matter of law, with that course. If, however, it did so because none of the medical experts sympathetic to the appellant's claim were prepared to say that she would never work again, that would, in our view, constitute clear error on its part. It is for that reason that the matter must be remitted to the Tribunal to be reconsidered according to law.
88 This case illustrates, yet again, the dangers of importing into the language actually employed in an instrument that is intended to govern the rights and obligations of the parties words that they have not themselves chosen to adopt. The expressions actually used by the parties, "physical or mental incapacity" and "unable", involve ordinary words, and should be given their ordinary meaning. They are likely to be well-understood, in particular, by medical experts, and seem to have been clearly understood by the experts who prepared medical reports in this case. That may be why a number of those experts expressed themselves in the terms that they did, namely by considering what prospects the appellant had of gainful employment in the foreseeable future. Given the uncertain nature of the appellant's condition, and the even greater uncertainty as to her long term prognosis, the experts, quite sensibly, appeared to follow the adage "never say never".
89 Experience shows that in cases of this type medical experts often express widely divergent views. If a test that requires a prognosis of permanent disability is applied, even if that test is applied with some flexibility, allowing for the difficulty of expressing any opinion with certainty, the prospects of a complainant being able to satisfy that test must be significantly lower than those required to satisfy a lesser test of inability to work for the foreseeable future. The distinction between these two formulations is not, as the respondent submitted, a product of mere "reticence" on the part of medical experts. It is rather a reflection of the difficulty of anticipating what is likely to occur in relation to certain physical or mental conditions, including that of the appellant.
90 Put simply, if the accepted medical opinion is that a person has an injury or illness that that is sufficiently serious, and non-transient, to amount to "a physical or mental incapacity", and that person is unable to work now, and for the foreseeable future, that, in our view, is "disablement" within the meaning of rule 1.1 of the FAB Scheme.
91 It must not be forgotten that by the time the Tribunal delivered its reasons for decision, in February 2005, the appellant had not worked for a period of just over seven years. There was nothing in the evidence to suggest that recovery was imminent. Whatever anomalies there may be in the compensation available under the FAB Scheme for someone suffering from her condition, compared to someone suffering from, for example ill-health, the actual lump sum payable to the appellant under that scheme, having regard to what she has been through, can hardly be described as a windfall.
92 Before the primary judge, the appellant sought an order that the matter be remitted to the Tribunal to be determined according to law. Section 46 of the SRC Act expressly provides for the making of such an order. There remain factual matters for the Tribunal to resolve, namely, whether the evidence of the medical experts supports a finding that the appellant is unable to work now, and for the foreseeable future.
93 The appeal should be allowed, with costs. The orders made by the primary judge should be set aside, and in lieu thereof, there should be an order that the respondent pay the appellant's costs of the appeal below. The matter should be remitted to the Tribunal so that it can consider again, this time applying the correct test for "disablement", whether the Trustee acted in a fair and reasonable manner when it rejected the appellant's claim.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Weinberg and Allsop.