The Tribunal's erroneous consideration
62 The submission advanced by MetLife that the Tribunal's misunderstanding of the nature of "constructive rejection" caused it to ask itself the wrong questions and to consider erroneous material in answering them should be accepted. By failing to undertake a qualitative analysis of MetLife's conduct in relation to its dealing with Ms Hart's claim, it failed to address the correct issue in relation to "constructive rejection"; namely whether MetLife had failed to comply with its obligations of good faith and fair dealing. By failing to address the correct issues, the Tribunal wrongly attributed to MetLife responsibility for the delay of approximately 23 months prior to Ms Hart first making a claim on it. Its conclusion that three and a half years had elapsed since the original lodgement of the claim was logically irrelevant to MetLife's conduct given the claim was only made upon it in February 2018. More than half of the time which the Tribunal considered as being "unacceptable" in relation to the dealing with Ms Hart's claim was not relevant to the issue of whether MetLife had breached its duty of good faith and fair dealing and thereby constructively rejected her claim. It is clear the Tribunal mistakenly thought that it was, and that strongly supports the proposition that the Tribunal was applying an erroneous test.
63 Whilst Dr Austin for FSS submitted that the Tribunal's comments in this respect were somewhat "intemperate", they were much more than that. They reflected the erroneous conclusion that in assessing whether there had been a constructive rejection, it should take into account the extended delays by FSS and TAL Life in the period prior to any claim being made upon MetLife.
64 The first sentence of the Tribunal's reasons at [76] further supports the determination that it misunderstood the nature of the task which it had posed for itself. There, the Tribunal stated that "[i]t is quite clear from the above facts that at no time has [Ms Hart] done other than accede to the requests of [FSS], [MetLife] and [TAL Life]". Even allowing for the nature of decisions from administrative decision-making bodies, that sentence is somewhat obscure. It is not clear what were the "above facts" to which the Tribunal referred. Its reasons suggest they were those set out in the chronology at [75] and the parties before the Court seemed to accept that was so. However, nothing in any of the facts stated in the chronology concerned or were related to the making of requests of Ms Hart or of her compliance with them.
65 Dr Austin, accepting that first sentence referred to the facts set out at [75], submitted the Tribunal was not referring to all of the medical evidence which had been requested by MetLife, but to "whether the forms were properly lodged and whether the complainant [Ms Hart] has filled out the paperwork … to the requests" made of her. There is, with respect, no textual or contextual support for that proposition. Given the history of the matter and of MetLife's complaint about Ms Hart's lack of positive responses to requests for medical evidence, the statement was intended to respond to that complaint. It is apparent that the Tribunal had accepted Ms Hart's assertion that she had complied with all requests to attend medical appointments. The most probable explanation for this fundamental and egregious error is, again, that the Tribunal had conflated the position of the two insurers. In the period prior to 18 February 2018, Ms Hart had attended at medical appointments on numerous occasions and an array of reports, letters and certificates were produced. It is unclear whether these attendances were required by FSS, TAL Life, the NSWPF, or Ms Hart's lawyers, or were for the purpose of medical treatment. Nevertheless, they included psychiatric reports, including a number from an Associate Professor Robertson who seemed to regard Ms Hart as being unable to work as a result of PTSD consequent upon "numerous traumatic events". These were no doubt relevant to the claim which she had made to TAL Life to the effect that she was unable to work due to her psychological conditions.
66 The difficulty is that the medical information obtained to that point in time related to Ms Hart's claim on TAL Life whereas MetLife's position is that its liability only arises in respect of Ms Hart's physiological condition and it has no responsibility for her TPD claim resulting from her psychological condition which occurred after it ceased to be on risk. The issue of whether MetLife had responsibility for Ms Hart's claim raised questions not specifically considered in the material gathered prior to the claim being made upon it. In particular, whether Ms Hart's PTSD was causally linked to her physiological injuries, and whether her psychological injuries by themselves cause her to be TPD.
67 In the above context, the import of MetLife's propositions number 1 and 2 (set out in [73] of the Tribunals' reasons) to the effect that there had been no failure on its part to determine the claims due to Ms Hart's failure to act in good faith, and that it had not acted unreasonably and unfairly, is self-evident. Its requests related to the provision of medical records and Ms Hart's attendance at independent medical examinations were concerned with its potential liability and not the differently based liability of TAL Life. The Tribunal's erroneous conclusion that Ms Hart had satisfied the relevant requests could only have been reached because it conflated the requests made by TAL Life, which were complied with, with the subsequent requests by MetLife, which were refused. It, like Ms Hart, had difficulty distinguishing between the two separate insurers. The result is that it did not direct itself to the correct question of whether MetLife, in respect of its own conduct and its own potential liability, acted fairly and reasonably in dealing with the claim on its policy. The Tribunal must have directed itself to a more general question, being whether the conduct of both insurers and FSS, taken together, provided a fair and reasonable response to the claim and, then, to visit its negative conclusion on MetLife. As Mr Williams SC for MetLife submitted, this demonstrated a serious error of law on its behalf.
68 Mr Williams SC alternatively submitted that the Tribunal's approach must have resulted from it overlooking a substantial amount of evidence as well as MetLife's submission that its evidence had demonstrated its good faith and reasonableness in dealing with Ms Hart's claim. Support for that conclusion can be gained from the contents the Tribunal's reasons at [77] where it asserted that MetLife was in receipt of sufficient medical information on which it might decide the claim made to it. That conclusory statement lacked any reference to the evidence or the findings on the material questions of fact which supported it: cf s 25D of the Acts Interpretation Act 1901 (Cth). One of the important issues which MetLife had to decide was whether Ms Hart's circumstances met the criteria for TPD under the PBR Policy as affected by the IFSA Guidance Note. In the circumstances, that meant whether she was, by reason of her injuries, incapacitated to such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience. Or, in colloquial terms, whether she had no real chance before she reached her retirement age in 2031. Necessarily, any conclusion to that effect that would have required an assessment of her functional capacity into the future; being an issue which MetLife had openly sought to investigate by requesting Ms Hart attend the medical assessments it had arranged. As MetLife's liability would only arise if Ms Hart's incapacity for work was directly or indirectly related to the condition which rendered her "not at work" on the working day immediately preceding the "takeover date" - namely her back pain - a distinction had to be drawn between that incapacity and any lack of capacity consequent upon Ms Hart's psychological conditions. This issue was not fanciful. In its recitation of the medical evidence, the Tribunal (at [60] - [62]) referred to reports of psychiatrists which indicated that Ms Hart was unfit for work by reason of suffering PTSD which arose as a result of the "numerous traumatic events [Ms Hart] witnessed in a (sic) work as a police officer from 2003 to 2014" or as a result of "cumulative exposure to traumatic stressors". Statements by Ms Hart recite numerous events which she claimed to have witnessed in the course of her duties and the impact which she claimed they had on her psychologically. Necessarily, any reasonable insurer would need to consider whether any causal connection existed between Ms Hart's back pain and her PTSD or whether her PTSD was an unrelated condition.
69 It follows that in performing its proper function the Tribunal was obliged to consider whether the accumulated medical evidence, which was not necessarily directed to the issues of MetLife's liability, was sufficient for the evaluative purposes. Its omission to do so, which included failing to consider MetLife's attempts to ascertain further material, was a serious departure from its statutory function and a misapplication of the provisions of the SRCA.
70 The respondents submitted that the finding in [77] was one of fact and, therefore, immune from review on an appeal on a question of law: SRCA, s 46(1). However, although it is factually conclusory, it was neither directed to nor answered the multiple questions to which a determination was required in the proper performance of the Tribunal's function.
71 They also submitted that the question of law relied upon by MetLife purported to read into the definition of "decision" an additional requirement that the failure to make a decision must involve a lack of reasonableness. That submission should be rejected. MetLife's submissions did not involve any embroidery on the words of the definition. It was the Tribunal which identified the relevant decision as being a constructive refusal of the claim, a term that is given a particular meaning by the several authorities. Such a decision is quite different to a mere refusal and involves questions of the insurer's compliance with the duty of good faith and fair dealings. Contrary to the respondents' submissions, the Tribunal did not approach its task on the basis that MetLife had not made a decision, but that that it had constructively rejected the claim. In those circumstances, it should have, but failed to, ask itself or answer the question whether, in the manner in which it dealt with the claim, MetLife breached its duties of good faith and fair dealing. To exacerbate its error, in reaching the conclusion it did, it attributed the earlier delays by FSS and TAL Life in dealing with Ms Hart's claim to MetLife.
72 In the course of his submissions, Mr Williams SC also framed the error of law as being a misapplication of the Tribunal's obligations under the SRCA. He submitted that the conclusions in [76] shows the Tribunal "simply failed to have regard to the claim that MetLife was making". There is force in that submission. As identified above, given s 33 of the SRCA permits those who might be affected by the Tribunal's decisions to make written submissions, there is a necessarily implication that, in its deliberative process, the Tribunal is required to have regard to the contentions made in any such submissions. Here, one of MetLife's central submissions was that it had not acted unfairly or unreasonable, as a result of Ms Hart's failure to respond to its requests for information and the undertaking of assessments. The Tribunal's finding in [76] shows that it overlooked that submission and the substantial evidence advanced in support of it. In doing so, it erred in law by its misapplication of s 33 of the SRCA.
73 Although the respondents attempted to clothe the Tribunal's reasons in the above respect with a different complexion and sought to rely upon the principle that reasons should not be construed too carefully: Wu Shan Liang at 271 - 272: ultimately, the meaning of the reasons is apparent and reveals an erroneous approach was adopted by the Tribunal in relation to the questions before it.
74 Dr Austin submitted that the Court cannot assess the Tribunal's conclusion that MetLife had failed to act reasonably, fairly or in good faith, as that would require it to descend into a factual analysis which was not consistent with a limited appeal on a question of law. The difficulty with this submission is that MetLife does not ask the Court to examine whether the Tribunal's factual conclusions were correct. Its submissions were to the effect that an examination of the Tribunal's factual findings evidenced that it posed for itself the wrong legal question and that it misunderstood its statutory obligation to have regard to the contentions advanced to it. Each of those are legitimate issues of consideration in support of an appeal on a question of law.
75 For Ms Hart it was also submitted that, even if it be accepted that the Tribunal misunderstood the nature of the decision MetLife made, so long as there existed a "failure to make a decision", the Tribunal had jurisdiction in relation to the matter and no error could arise. FFS supported this submission. However, the difficulty with that approach is that it is not at all clear that MetLife "failed" to make a decision. It could not have done so unless the time had arisen whereby it was obliged to make one. Prior to such a time there could be no "failure", but merely an absence of a decision. In order to ascertain whether MetLife had failed to make a decision, it would have been necessary to ascertain what were the circumstances on which the obligation to make it were conditioned and, then, whether they had occurred. Here, MetLife submitted that, by reason of Ms Hart's failure to provide the information which it reasonably required to assess her claim, it was under no obligation to make a decision. Although the Tribunal made some generalised findings concerning the sufficiency of the information provided to FSS and the insurers, it did not turn its mind to these specific issues which needed to be addressed in order for it to conclude that MetLife had, relevantly, "failed to make a decision". Had it sought to found its jurisdiction on that basis, it would have undertaken the necessary considerations and made the required findings. It is pellucidly clear that it did not approach the matter in that way, but determined that MetLife had rejected the claim, albeit constructively. With respect, the respondents' submission on this issue did not accord sufficient respect to the words used by the Tribunal when it explicitly concluded that MetLife had "constructively rejected" Ms Hart's claim.
76 It is not appropriate to leave this issue without observing that each of the respondents filed written submissions asserting that MetLife had failed to make a decision on Ms Hart's claim for over three years. That inflammatory submission was false and demonstrably so. It would seem that the respondents' legal representatives fell into the same error as the Tribunal by attributing responsibility for the delays by FSS and TAL Life in dealing with Ms Hart's initial claim on TAL Life to MetLife. That was most inappropriate and particularly so when the evidence disclosed that MetLife's responses to the claim and issues arising therefrom were, on all occasions, timely and apposite. It is clear that Ms Hart became angry and frustrated with the manner in which her claim was being assessed, which was understandable in the circumstances. Unfortunately, she vented her frustrations towards MetLife, even though its actual involvement arose only from February 2018.