Davis v Rio Tinto Staff Superannuation Fund Pty Ltd

Tribunal's decision 10 The Tribunal recounted the applicant's employment background and the provisions of the trust deed and insurance contract. It summarised a number of medical reports of the following practitioners: · Dr P - applicant's treating general practitioner · Dr Ba - orthopaedic surgeon retained by applicant's solicitors · Dr R - neurosurgeon retained by applicant's solicitors · Mr S - chiropractor retained by rehabilitation provider · Dr C - psychiatrist retained by employer's solicitors · Dr Bi - orthopaedic surgeon retained by insurer · Dr S - occupational physician retained by applicant's solicitors · Mr L - rehabilitation provider The Tribunal reviewed the medical evidence. It noted a report in April 1999 by Dr P to the effect that the applicant was unfit to return to his previous work as a loader driver but had skills in "computing, lab work and that type of thing". In August 2000 Dr P reported that the complainant had developed psychological problems after trying to retrain whilst working his usual job and "at the present moment" he believed the complaint was TPD. The Tribunal said that, in the light of the definition which requires an employee to be unlikely ever to be able to do a job for which he is reasonably fitted by education, training or experience, it was satisfied "that Dr P's reports stop somewhat short of an endorsement of the (applicant) being TPD." 11 The Tribunal noted Dr Ba's opinion that the applicant was unfit for work as a loader driver but that sedentary work would suit him better and that he was capable of performing many of the modified duties he had been doing in the workplace. Similarly Dr R was of the view that the applicant was fit for selected duties and Mr S noted in February 1998 that the applicant was "largely free of pain" if he carried out a restricted range of activities. Dr C, the psychiatrist, found that the applicant's stress condition should not incapacitate him for all work, nor should it prevent him from undertaking rehabilitation. Dr Bi believed the complainant was fit for work including that of a plant operator, provided his seating was appropriate and he avoided repetitive bending. His injuries were predominantly degenerative with no nerve involvement or disc prolapse. Dr Bi mentioned other jobs the applicant could perform such as shop assistant, courier/driver or console operator. Dr S considered the applicant unfit for work as a loader driver but "may be fit for some types of sedentary work". Mr L stated that the applicant had the ability and capacity to perform work of an administrative nature which he had undertaken at the College but, for reasons other than his ill health, he had not applied for positions for which he had the skill and ability. 12 The Tribunal said that taking all of that evidence into account it was satisfied that on balance the applicant was not fit to continue working as a loader/driver or in other positions involving heavy manual work. It preferred the views of the majority of medical practitioners over that of Dr Bi. It then turned its attention to whether or not the applicant was "incapacitated to such an extent as to render the Member unlikely ever to engage in any Gainful Work for which the Member is for the time being reasonably qualified by education, training or experience." 13 Only Dr S concluded that the applicant met the TPD definition and this was based on his belief that the applicant would need retraining to take up a sedentary position. The Tribunal referred again to the opinions of Dr Ba, Dr R, Dr Bi, Dr S and Mr L mentioned above. The Tribunal said: "The Tribunal is thus satisfied that the (applicant) has the capacity, skills and experience to work in a sedentary occupation. The (applicant) was involved in running a family plumbing business for 19 years which involved sales and deliveries, book-keeping, pricing, plans and supervision. He has also assisted in the operation of a family milk bar/take away and has gained further administrative skills while working at the [M] college. Thus the Tribunal is satisfied that the (applicant) has a capacity to work in a position he is "reasonably qualified by education, training or experience" to perform and that the decision of the Trustee and Insurer were fair and reasonable in the circumstances." 14 I should note that the reference by the Tribunal to a definition including the expression "Gainful Work" is to the definition of TPD obtained in the trust deed under which the Fund is established. However, the trust deed provides in effect that if there is a contract of insurance, the definition in that contract will prevail. Thus the relevant test was that provided in the insurance contract quoted at the outset of these reasons. Although the Tribunal strictly speaking should have referred to the definition in the contract of insurance rather than that in the trust deed, counsel did not submit that there was any relevant difference.

The relevant time 15 Under s 37 of the Act the function of the Tribunal was to determine whether the decision of the Trustee was fair and reasonable in the circumstances: see National Mutual Life Association of Australia [sic] Ltd v Campbell (2000) 99 FCR 562 and the cases therein cited. Counsel for the applicant submitted that the relevant time to consider whether the applicant was TPD within the meaning of the contract of insurance was 19 February 1999, that being six months from the date on which he last worked. I do not agree. What the Tribunal had to review and either affirm, vary or set aside was the decision of the Trustee made on 23 December 1999 and subsequently reviewed and affirmed by the Trustee on 1 June 2000 and 28 June 2000. Although not explicitly stated, it would seem that the Tribunal regarded its task as reviewing the decision of the Trustee as at the last mentioned date, an approach I think was correct. The system of review under the Act is to be distinguished from claims made by an insured under a policy: cf Giles & Giles v The National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Insurance Cases 74,525.

"Unlikely" 16 In Ivkovic v Australian Casualty & Life Limited (1994) 10 SR (WA) 325, Commissioner Roberts-Smith QC, sitting as a Commissioner of the District Court of Western Australia, had to consider a claim by an insured under a policy where the definition of TPD stipulated that the insured "… is unlikely ever to be able to follow his usual occupation and any other occupation for which he could be reasonably considered qualified by education, training or experience." 17 The Commissioner (at 351) criticised a decision of the insurer which "… had no regard to the plaintiff's realistic ability to follow his usual or any other occupation in the future and took no account of the opportunities that would or may be available to him to obtain such employment." 18 The Commissioner also said ( ibid): "… the conclusion that the plaintiff had failed to satisfy the defendant that he was totally and permanently disabled took into account only one aspect of his ability to follow his usual or any other occupation, namely his physical capacity. It had no regard to his education, training or experience and it had no regard to the prospects of a person in his situation ever actually being able to obtain employment in any relevant occupation. … I should also say in passing that the word 'unlikely' in the definition is of some significance. It clearly sets a much lower test than would be posed if an insured had to establish that he was incapable of following his usual or any other occupation. Thus, even if the evidence were to leave open a possibility that in the future an insured might be able to do so, if it is nonetheless established that he or she was unlikely to be so able, that would be sufficient to make out the claim."(emphasis in original) 19 I would adopt that reasoning in relation to the policy wording in the present case.

Questions of law raised on appeal 20 By his notice of appeal the applicant asserted "2…: (a) The Tribunal erred in concluding that the applicant has the capacity, skills and experience to work in a sedentary occupation when there was no evidence or insufficient evidence to support that finding. (b) Erred in law in finding that the applicant has a capacity to work in a position he is "reasonably qualified by education, training or experience" to perform when there was no evidence or insufficient evidence to support that finding. (c) Erred in law in failing to make any or any sufficient findings as to: (i) the extent of the applicant's incapacity; (ii) the gainful work for which the applicant is for the time being reasonably qualified by education, training or experience;or (iii) the regular remunerative work for which the applicant is reasonably suited by education, training or experience. (d) Erred in law in failing to consider the relevant provision of the trust deed namely whether the member (applicant) is incapacitated to such an extent as to render the member unlikely ever to engage in gainful work for which the member is for the time being reasonably qualified by education, training or experience or the relevant provision of the insurance contract namely whether it is unlikely he (applicant) will ever be able to engage in any regular remunerative work for which he is reasonably suited by education, training or experience and instead found that the applicant has a capacity to work in a position he is "reasonably qualified education, training or experience" to perform. (e) Failed to give any or any sufficient reasons for finding the applicant was not entitled to a payment of total and permanent disablement benefit."

Capacity (grounds 2(a) and(b)) 21 If the Tribunal had regard only to the prospects of employment of the applicant by considering his physical capacity in an abstract theoretical way, then this would involve a misunderstanding of the terms of the definition. However, the Tribunal's reasons make it clear that it went further. It looked in detail at medical evidence as to the sort of work the applicant was physically capable of doing, that is to say "computing, lab work and that type of thing" or work as "a shop assistant, courier/driver or console operator" or "some types of sedentary work". It had regard to his practical experience in the family plumbing business for nineteen years and in the milk bar as well as at the Australian Maritime College. The Tribunal was not obliged to consider whether actual positions with actual employers were open to the applicant. 22 It is true the applicant put arguments that, if accepted, would have led to a more pessimistic view of his employment prospects, perhaps to the extent of a finding that he was unlikely ever to engage in regular remunerative work. For example, it was said that the work he had done in the plumbing business involved either considerable lifting and bending, which he was now unable to do, or sales delivery and bookkeeping work which was now computerised and for which he did not have any or any sufficient computer skills. But at best, these were matters involving elements of fact, degree, opinion or judgment: Campbell at [33]. It is not for this Court to evaluate the evidence or what inference should be drawn from it, but rather to ascertain whether there was some evidence before the Tribunal on which its findings of fact could be based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. Speaking generally, the evidence disclosed that the applicant had had substantial experience in small business administration. Insofar as the applicant's computer skills were relevant to his employment prospects, it did not seem to be disputed, as the insurer put to the Tribunal, that he had completed · introduction to PCs with Windows 95, Word and Excel · Internet basics and e-mail (7 hours) and Word Introductory (14 hours)

Alleged failure to make findings (ground 2(c)) 23 In my view a fair reading of the Tribunal's reasons leads to the conclusion that it made findings as to all matters of fact on which it reached its decision; it did not have to make express findings on every factual matter which was in dispute: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [72] - [75].

Provisions of policy (ground 2 (d)) 24 The Tribunal did not misconstrue the terms of the policy. Read in isolation, the concluding statement of the Tribunal quoted above (at [13]) might suggest that it ignored the "unlikely ever" element of the test. However, only two paragraphs earlier in its reasons the Tribunal stated the correct test. This was in a context where the Tribunal was summarising the evidence as to the applicant's medical condition and his experience and skills for the kind of work he was physically able to do. The Tribunal asked itself the right question. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272) ". . . 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 reasons are expressed."

Failure to give reasons (ground 2(e)) 25 For the reasons already mentioned I think the Tribunal gave sufficient reasons.

Conclusion 26 The application will be dismissed with costs, including reserved costs. However, that order will only be in favour of the second respondent. Counsel appeared on behalf of the first respondent but did not advance any separate argument. Both respondents had a common interest in defeating the applicant's application and the proceeding discloses no actual or potential dispute between them.

I certify that the preceding twenty- six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Counsel for the Applicant: Mr B McTaggart

Solicitor for the Applicant: Ogilvie Jennings

Counsel for the First Respondent: Mr J Bronstein

Solicitor for the First Respondent: Murdoch Clarke

Counsel for the Second Respondent: Mr M. E. O'Farrell

Solicitor for the Second Respondent: Dobson Mitchell & Allport

Date of Hearing: 21 March 2002