National Mutual Life Association of Australasia Limited (ACN 004 020 437) v Scollary

Federal Court of Australia|2002-05-31|Before: Ryan J

REASONS FOR JUDGMENT 1 This is an appeal pursuant to s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth)("the Act") from a determination of the Superannuation Complaints Tribunal ("the Tribunal"). Section 46 of the Act provides, so far as is relevant; "(1) A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal. ... ... ... ... ... (3) The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate. (4) Without limiting by implication the generality of subsection (3), the orders that may be made by the Federal Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court. (5) The Federal Court must not make an order awarding costs against a complainant if the complainant does not defend an appeal instituted by another party to the complaint." 2 The respondent, Mr Scollary, was born on 16 January 1937. He commenced work as a crusher operator with Readymix Quarries on 10 July 1990. On 13 December 1990 he became a member of the CSR Australian Superannuation Fund ("the Fund") which was insured by the appellant, The National Mutual Life Association of Australasia Limited ("National Mutual"). Rule 18.1(b) of the Rules governing the Fund provided for a member to be paid a disablement benefit as determined by the Insurer. The First Schedule to the policy issued by National Mutual contained this definition; ""Total and Permanent Disablement" in relation to a Life Assured means having been absent from employment with the Company through injury or illness for six consecutive months and in the opinion of the Association after consideration of medical evidence having become incapacitated to such an extent as to render the Life Assured unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education training or experience... ... ...." 3 On 18 August 1992 Mr Scollary was injured at work when attempting to remove a rock from the jaws of a root crusher with a crowbar. He was struck on the right side of the face by the crowbar and sustained a variety of injuries including maxillo-facial damage, reduced vision in one eye, double vision and nasal and sinus injuries which required surgery. Mr Scollary continued working at the quarry until June 1994 when he began to receive workers compensation payments. He ceased work permanently on 22 March 1995 and lodged a claim on 16 May 1995 for a benefit for Total and Permanent Disablement ("TPD"). Both National Mutual and the Trustee of the Fund, after considering his claim on 25 September 1995, 11 December 1995 and 3 December 1996, rejected his claim on each occasion. On 15 January 1997 Mr Scollary applied to the Tribunal for a review of those decisions. A hearing was held on 18 May 2000 before two Tribunal members. 4 After reviewing a body of medical reports, the Tribunal, in its reasons, rehearsed Mr Scollary's education, training and experience, saying; "The Complainant completed a Tribunal-generated questionnaire as to his training experience and education. It revealed he left High School in Year 10 in 1952 and that he has no trade or professional qualifications. He has worked in the following capacities: · Victoria Railways - 8 years · Woolshed Rouseabout - 4 years · Crusher Operator - 2 years · Unloading trucks at silos - 1 year · Shark fishing - 3 years · A crusher operator in the quarry industry - 10 years". 5 The Tribunal then went on to consider the medical reports submitted in respect of the respondent's injuries. It began by discussing the report dated 23 June 1994 by Mr Monsour, an oral and maxillo-facial surgeon. The Tribunal noted that, as the report had been prepared for workers compensation purposes, it did not assess Mr Scollary for TPD, but Mr Monsour did conclude that Mr Scollary would have "significant residual, particularly neurological disability in the long term." The Tribunal then examined the report of an ophthalmologist, Dr Kirkwood, dated 27 July 1994, noting that he also had not addressed the issue of TPD, but that he did "conclude that the Complainant is limited in the type of work he can do due to his double vision on looking up and resultant difficulty in judging distances." 6 The Tribunal then proceeded to discuss the report dated 23 November 1995 of Dr Hutchinson, a psychiatrist, observing: "Dr H concluded that the Complainant was not suffering from 'any incapacitating depression, anxiety or other psychiatric disorder.' However he did not specifically address the issue of capacity for work or types of work that could be undertaken … The Tribunal feels that Dr H's report is not helpful only in so far as it concludes that the Complainant does not suffer a psychiatric disorder that would be 'incapacitating'. However the issue of psychological effects of facial injury with resultant deformity and of chronic pain on his capacity to work have not been addressed." 7 The Tribunal next discussed the report given by Dr Landy, a neurologist, dated 8 September 1995, opining that there was no reason why Mr Scollary "shouldn't be able to undertake light unskilled work." Yet, the Tribunal observed; "He stops short of giving any examples of the type of work that the Complainant could do, bearing in mind he must be 'reasonably qualified by education, training or experience' for such work. The Complainant left school at 15 and has no formal qualifications other than the training provided to become a plant operator. He has worked in quarries most of his life." 8 The report of 18 July 1995 by Dr Redmond, a neurosurgeon, was also criticised by the Tribunal for its conclusion that Mr Scollary could perform 'light unskilled work', as no suggestion was then given of "any occupation that would meet the definition of 'light unskilled work' that did not involve operating machinery for someone whose experience and training has involved working in quarries most of his life." The Tribunal next considered a report dated 5 October 1994 by Dr Wing, an ear, nose and throat specialist. The Tribunal noted that, although Dr Wing had concluded that Mr Scollary "shouldn't get any ongoing problem", that must be understood as confined to otolaryngological problems, not the respondent's overall impairment. 9 The Tribunal also briefly commented on the reports of Mr Scollary's general practitioner, Dr Frielingsdorf, who had advised him to cease his employment in the quarry, but had been unable to suggest any other occupation which he might be capable of undertaking. Finally, the Tribunal considered the report dated 13 November 1996 of Dr Weidmann, a neurosurgeon, who had conceded that Mr Scollary had a "partial permanent impairment of bodily function as a result of his injuries" but did not believe that he was unemployable, suggesting instead that he could undertake "any form of unskilled work". However, the Tribunal noted that the type of work contemplated by Dr Weidmann had been left unspecified and concluded that: "... ... to say a person is not 'unemployable' is not the same as suggesting he is fit for work for which he is 'reasonably qualified by education, training or experience'. The Tribunal is satisfied that 'a light form of unskilled work' does not necessarily correspond to the type of work the Complainant has undertaken throughout his working life." 10 The Tribunal concluded its consideration of the medical reports by summarising their effect in these terms; "The Tribunal felt that no doctor examining the Complainant has adequately addressed the definition of 'Totally and Permanently Disabled' as defined in the Insurance Policy with respect to the work the Complainant could do. In the Tribunal's opinion, 'light, unskilled work' is not consistent with the heavily manually oriented work that the Complainant has carried out during his working life. Furthermore, the Tribunal is of the opinion that the overall health of the Complainant should be taken into consideration when determining his capacity for work. Each Specialist has commented on the injuries suffered and the disabilities which result with respect to his own area of expertise. The Tribunal believes that this has led to an under-estimation of the effects of the combination of injuries suffered by the Complainant. ... ... ... ...… In summary, the Complainant has suffered significant injuries that have rendered him incapable of: · working in noisy environments · working in cold weather · working at heights or in other situations where binocular vision is important for safety · operating machinery In addition, he is constantly distressed by chronic pain acknowledged to exist by all the doctors and which the Complainant has submitted makes concentration very difficult for him. The Tribunal accepts that submission. Under these circumstances, the Tribunal finds that due to his injuries, the Complainant could not realistically work in a job for which he is 'reasonably qualified by education, training or experience' and therefore meets the definition of TPD. Since the Tribunal's decision is different to the decision of the Trustee and Insurer in relation to its operation to the Complainant, the Tribunal finds the decision of the Trustee and Insurer to be unfair and unreasonable to the Complainant." 11 The Tribunal's reasons ended with this statement of its "decision"; "DECISION The decision of the Tribunal is to set aside the decisions under review and substitute a decision that the Complainant satisfies the Insurance Policy of Totally and Permanently Disabled and is entitled to the benefit claimed."

Grounds Of Review 12 It has been contended on behalf of National Mutual that the Tribunal misunderstood its task under s 37 of the Act. Moreover, Counsel pointed to a number of statements in the course of the Tribunal's reasoning which were said to be factually incorrect. Particular attention was drawn to the inconsistency between the Tribunal's statement that Mr Scollary "has worked in quarries most of his life", and the earlier description of his work history quoted at [4] above which involved twelve years as a crusher operator but sixteen years in other positions. However, I note that, on Mr Scollary's application form, he had detailed sixteen years as a crusher operator and sixteen years in other occupations, which tends to suggest a concentration on quarry work punctuated by episodes of recourse to other work. 13 The applicant took further issue with the Tribunal's comments that Mr Scollary "has no formal qualifications other than the training provided to become a plant operator." This, it was submitted, ignored at least the probability that training had been required for his positions in the railways, as a woolshed rouseabout and a shark fisherman. The applicant also noted that the Tribunal had not referred to Mr Scollary's statement, in his "Registration of Complaint Form" to the Tribunal, that he was "willing to do other work with the company but was told there was none". 14 In addition, the applicant questioned the Tribunal's consideration of the report of Dr Frielingsdorf who, it was said, had claimed not that Mr Scollary would be unable to engage in any work for which he was suited, but merely that he, Dr Frielingsdorf did not know. Moreover, Dr Frielingsdorf had contemplated the possibility that Mr Scollary may have been capable of "other employment", as, in a letter dated 3 April 1995, he had stated that "[o]n medical grounds he has been advised to seek other employment". Counsel for the applicant also contended that, although the Tribunal had said that no medical practitioner had adequately addressed the definition of TPD, the only ones who purported to address the definition had either expressed the view that Mr Scollary was fit for some form of work or stated that they did not know. In addition, the applicant submitted that it was misconceived for the Tribunal to assert that a medical report did not consider the definition of TPD merely because it had not referred to it in explicit terms. Finally, the applicant was critical of the Tribunal's description of Mr Scollary's past activities as "heavily manually orientated", which was said to leave it unclear whether he had engaged in heavy manual work or work which was predominantly manual. In this context it was noted that the Employer's Statement in relation to the claim indicated that the physical requirements of Mr Scollary's job involved 10% walking, 10% climbing (ramps, steps etc) and 80% standing, but made no reference to lifting or heavy work. It is to be observed, however, that the only other options available on the form directed attention to "crawling", "kneeling" and "climbing - ladders, scaffolding etc", providing no scope for a reference, without interpolation, to lifting or heavy work. The Employer's Statement is relied on as resolving the ambiguity in the Tribunal's statement in favour of its meaning that the work was predominantly manual, as there was no evidence that heavy work had been involved. 15 Counsel for the applicant then identified the principal issues in the proceeding as being; "(a) whether the Tribunal asked itself the correct questions for the purposes of s 37(6) of the Superannuation (Resolution of Complaints) Act 1993 (C'th) (the "Act"); (b) whether a decision of an insurer and/or trustee is necessarily unfair and unreasonable by reason only of the fact that the Tribunal would have reached a different decision; (c) whether the Tribunal is entitled to impose its own decision with respect to the matter under complaint, rather than determining whether it is satisfied that the decision of the Applicant and of the Trustee, in its operation in relation to the complainant, was fair and reasonable in all the circumstances as required by s 37(6) of the Act" 16 Section 37 of the Act defines the Tribunal's functions in reviewing a decision of a trustee or insurer, providing in sub-s (3) that the Tribunal must make a determination in writing: "(a) affirming the decision; or (b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or (c) varying the decision; or (d) setting aside the decision and substituting a decision for the decision so set aside." 17 The same section then goes on to provide, by sub-ss (4) and (6) that; "(4) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists. ... ... ... ... ... (6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to: (a) the complainant; and (b) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision-maker) who: (i) has become a party to the complaint; and (ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit; was fair and reasonable in the circumstances." 18 The applicant claims that the Tribunal misapplied s 37(6) of the Act in that it should have affirmed the decision of the trustee and insurer if it was satisfied that the decision was fair and reasonable in the circumstances. However, the applicant submits that the Tribunal instead asked itself whether it believed Mr Scollary to have been totally and permanently disabled, not whether the decision of the primary decision makers had been fair and reasonable. In this respect, it was contended, the Tribunal had misdirected itself as to the question it was required to ask in a way analogous to what had occurred in National Mutual Life Association of Australasia Limited v Jevtovic [1997] FCA 359 ("Jevtovic"), where Sundberg J observed; "In my view the Tribunal did not address itself to the question posed by sub-s(6). It initially asked itself the right question -"whether or not the decision of the Trustee was fair and reasonable in its operation to" the respondent. But then the Tribunal showed that it misunderstood what that question involved it doing, by saying that this "will involve the Tribunal considering whether the evidence before it enables the Tribunal to conclude that [the respondent] satisfies the requirements to be classified as totally and permanently disabled ...". The emphasis is mine. The sub-s(6) inquiry is not whether the Tribunal is of the opinion that the respondent is totally and permanently disabled, but whether it is satisfied that the trustee's and the insurer's decisions that he was not so disabled were fair and reasonable in the circumstances. The Tribunal repeated what in my view is the erroneous understanding of its task when it said "the role of a tribunal is to decide whether or not the correct or preferable decision has been made". The context in which this was said shows that the words "a tribunal" mean a tribunal such as the Tribunal. Later the Tribunal said that it must look at the definition of "totally and permanently disabled" when "making its decision concerning whether or not [the respondent] was entitled to be paid a total and permanently disabled benefit". The emphasis is mine. And later -"the Tribunal ... must now decide whether or not [the respondent] satisfies that definition". …. The Tribunal's ultimate conclusion is expressed in words which suggest attention to the sub-s(6) enquiry - the decisions below were not fair or reasonable. But it is clear from the Tribunal's initial statement of its understanding of its task, and from the process of its reasoning, that it did not ask itself whether the decisions complained of were fair and reasonable in the circumstances, but whether in its opinion the respondent was totally and permanently disabled." (original emphasis) 19 That judgment was referred to by a Full Court of this Court in National Mutual Life Association of Australasia Limited v Campbell (2000) 99 FCR 562, but was held to be inapplicable to the facts of that case. Merkel J in Briffa v Hay (1997) 75 FCR 428 also made findings in relation to s 37(6) of the Act. His Honour observed, at 437; "Obviously, in arriving at a determination the Tribunal might form its own views on the legal obligations of the trustee in relation to the decision or refer questions of law to the Court: see s 39. However, the view of the Tribunal or of the Court, in respect of those obligations, is not determinative of the issue of unfairness or unreasonableness which the Tribunal is to determine or of the compensatory relief the Tribunal might grant." 20 For the applicant it was submitted that here the Tribunal clearly misunderstood its task. In particular, reference was made to the Tribunal's final comment in its consideration of the matter, that; "Since the Tribunal's decision is different to the decision of the Trustee and Insurer in relation to its operation to the Complainant, the Tribunal finds the decision of the Trustee and Insurer to be unfair and unreasonable to the Complainant." [emphasis added] 21 That passage was said to be an explicit demonstration of error by regarding a mere difference of view on a factual matter as entailing unfairness or unreasonableness. The inference that such an error had been committed was said to be reinforced by the fact that the Tribunal pointed to no other fact than the difference between its factual conclusion and that of the insurer and trustee as making the decisions of the latter unfair or unreasonable. 22 Counsel for the respondent, however, denied that the Tribunal had erred in the way described in Jevtovic, as it was apparent from its process of reasoning that the Tribunal correctly understood its function. It was further submitted that the Tribunal's reasons, read in their entirety, made it clear that it found the decision of the trustee and insurer to be unfair and unreasonable on a number of grounds. Those grounds included the basing of the decisions on medical reports which were inadequate for determining the critical question of whether the respondent was able to engage in work for which he was reasonably qualified by education, training or experience. In addition, the Tribunal considered that no medical practitioner had adequately addressed the question of "total and permanent disability", and that, although several had pronounced the respondent fit for "light, unskilled work", they had not condescended to particulars of what work answered that description. Nor had they assessed whether the applicant was reasonably qualified by training or experience to engage in whatever sort of work they had in mind. 23 It was further submitted on behalf of the respondent that the Tribunal considered that the trustee and the insurer had paid insufficient attention to the overall health of the respondent and its effect on his capacity for work. It was accepted that some criticism may be made of the looseness of the Tribunal's final statement, but that single passage was said to be extraneous to the Tribunal's reasoning. The respondent invoked Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, as supporting the need for the Court to review the Tribunal's decision as a whole, and not focus simply on the phraseology of the ultimate conclusion. When its reasons are taken as a whole, so the argument went, the Tribunal, in fact, found that the decisions of the trustee and insurer were unfair and unreasonable because they had been based on inadequate medical reports and an insufficient consideration of critical factors, particularly a proper assessment of the combined effect of the respondent's various injuries.

"Fair And Reasonable" 24 In Pope v Lawler (1996) 41 ALD 127, R D Nicholson J discussed the phrase "fair and reasonable" observing, at 135; "The meaning of the words "fair and reasonable" is a question of fact. "Fair" is relevantly defined in The New Shorter Oxford English Dictionary 4th ed (1993) at 907 as "just, unbiased, equitable, impartial". "Reasonable" is defined in the same dictionary at 2496 relevantly as "within the limits of reason; not greatly less or more than might be thought likely or appropriate"." Those definitions have since been applied in a number of judgments at first instance in this Court including Jevtovic (supra), Briffa v Hay (supra) and Lykogiannis v Retailer Employee Superannuation Pty Ltd (2000) 97 FCR 361. However, the Full Court, in National Mutual Life Association of Australasia Limited v Campbell (supra), noted, at 571, that: "attempts to achieve a precise definition of words such as "unreasonable" and "unfair" are likely to run into difficulty. The legislature has quite deliberately used words of broad content." Furthermore, the notion of fairness in this context does not pertain to the process by which the decision has been arrived at but to the actual decision itself, in its operation in relation to the complainant; see Pope v Lawler, at 134. 25 Counsel for National Mutual has submitted that the Tribunal can be satisfied that a decision was "fair and reasonable in the circumstances" without concluding that it would itself have made the same decision. If the Tribunal could set aside the decision of the trustee or insurer simply because it disagreed with it, s 37(6) would be superfluous. The legislature had, instead, compelled the Tribunal to consider the separate and distinct question of whether, in all the circumstances, the decision was fair and reasonable. If that question be answered in the affirmative, the Tribunal is bound to affirm the original decision. In this case, the applicant contends, the Tribunal did not conclude that the trustee or insurer had failed to take into account any relevant material, had been biased or partial, had denied Mr Scollary natural justice or had taken into account flawed evidence. Instead, the Tribunal merely concluded that the decision makers had not taken into account the overall health of Mr Scollary. Given that several doctors had expressed the opinion that Mr Scollary was capable of performing some work, it can hardly be said, on the applicant's argument, that the original decision was unreasonable. The fact that the Tribunal may itself have drawn from the medical reports a conclusion different from that drawn by the trustee and insurer, does not make their decision unreasonable, as there are many issues on which reasonable minds may differ: Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Insurance Cases 61-113, at 77,536. Nor, the applicant argued, is a decision unfair simply because a different body reached a different conclusion on the evidence. 26 Mr Galvin for the respondent referred to Lykogiannis v Retailer Employee Superannuation Pty Ltd (supra), where Mansfield J pointed out, at 367, that, when one has regard to the Tribunal's ultimate function under s 37(6), it is relevant for it, in making its decision, to review the medical evidence. In this case, the Tribunal evidently reviewed the medical reports, and upon considering them, came to the conclusion that they were inadequate as guides to whether Mr Scollary would be able to engage in work for which he was reasonably qualified. It was further submitted that the Tribunal correctly realized that it is not reasonable to refuse a TPD benefit merely because some medical reports state that the complainant is capable of performing "light unskilled work". Those statements do not advance the inquiry into whether the complainant is able to perform work for which he is "reasonably qualified by education, training or experience". There was nothing to suggest that the trustee or insurer had made any enquiries whether the respondent was fit to continue at work for which he was reasonably qualified, namely manual labour like that usually undertaken by quarry plant operators. That omission, according to the respondent, was unreasonable. 27 It was also submitted on behalf of the respondent that, as each medical practitioner had confined his opinions of Mr Scollary's medical condition to his own field of expertise and had not assessed his overall health, the Tribunal was entitled to take the view that the trustee and insurer had acted unreasonably in not considering the cumulative effect of his injuries on his total state of health. It was observed in the same context that the Tribunal had considered the general obstacles to Mr Scollary's returning to work, noting that he had left school at 15 and had no formal qualifications or training other than that provided when he became a quarry plant operator. Moreover, he had been unable to work since leaving his employment with Readymix, and had suffered persistent headaches and pain in his face, preventing him from concentrating for any length of time, and his overall condition prevented him from working in noisy environments, cold weather, at heights, in circumstances requiring binocular vision, or in operating heavy machinery. When all those factors are considered, the respondent submitted, the Tribunal was right to determine that the trustee and insurer had acted unreasonably in not themselves taking them into account. 28 Finally, the applicant submitted that the Tribunal had, in any event, erred in finding that Mr Scollary's condition fitted the definition of TPD, as upon its own findings no medical practitioner had adequately addressed that question, and the Tribunal should, accordingly, have felt itself unable to substitute its own decision for that of the insurer and the trustee. Section 37(4) of the Act enables the Tribunal to substitute its own decision for that of the original decision-maker if such substitution is necessary to place the complainant as nearly as practicable in such a position that the unfairness or unreasonableness found by the Tribunal to exist no longer exists. In the circumstances of this case, according to the applicant, the Tribunal could do no more than remit the matter to the trustee and insurer, pursuant to s 37(3)(b) with a direction that they obtain medical opinions adequately addressing the relevant definition of TPD.

(a) What was the correct question? 29 In determining whether the Tribunal misunderstood its function under s 37 of the Act, it is necessary to consider what powers the Act confers on the Tribunal. 30 Section 37(1) confers on the Tribunal, for the purpose of reviewing a decision of a trustee all the powers, obligations and discretions that are conferred on the trustee, presumably by the relevant trust deed or rules governing the administration of the fund. Similarly, s 37(2) obliges the Tribunal to review any relevant decision of an insurer and for that purpose, the Tribunal "has all the powers, obligations and discretions that are conferred on the insurer ... ... ... ... ...." In this case, the decision which National Mutual, as the insurer, had to make was whether it could form an opinion, after consideration of medical evidence, whether the respondent was totally and permanently disabled in the sense used in the definition of TPD quoted at [2] above. 31 In my view, the powers exercisable by the Tribunal on the review included the power reposed in National Mutual of forming the requisite opinion, after consideration of medical evidence, with or without conducting something in the nature of a hearing de novo. Accordingly, the legislation requires determination of whether a Tribunal has attained the satisfaction stipulated in s 37(6) to await its consideration of whatever medical and other evidence is available to it, and after the conduct of whatever form of hearing or other investigation the Tribunal considers appropriate. This view derives support from the presence in the Act of s 36 which provides; "The Tribunal, in reviewing a decision or conduct: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) is to act as speedily as proper consideration of the review allows, having regard to: (i) the objectives laid down by section 11; and (ii) if the complaint relates to a fund - the interests of all the members of the fund; and (c) may inform itself of any matter relevant to the review in any way it thinks appropriate." 32 The primary question for the Tribunal in the present case, after it had informed itself in the manner just indicated, was whether it was satisfied that National Mutual's decision, in its operation in relation to the respondent, was fair and reasonable in the circumstances. As the Full Court in National Mutual v Campbell (supra) observed, at 570; "But the issue under s 37 is not whether the insurer's decision is impeachable under the general law. The issue is whether the s 14(2) complaint has been made out and whether, for the purposes of s 37(6) the Tribunal is satisfied that the decision, in its operation in relation to the respondent, was fair and reasonable in the circumstances. (We note that the present is not a case in which s 37(6)(b) is relevant.) The Tribunal, under s 37(2) stands in the shoes of the insurer subject only to the constraints to which we have earlier referred." 33 I am not persuaded that the Tribunal failed to address that question. This is not a case like Jevtovic (supra) where the Tribunal was found to have thought that the question turned solely on its [the Tribunal's] opinion of whether the respondent was totally and permanently disabled. As Merkel J implied in Briffa v Hay (supra), the Tribunal is not precluded from forming its own opinion on that question as a guide to whether the insurer's decision was fair and reasonable. In my view, that was all that was done here. The Tribunal did not merely substitute its opinion for that of National Mutual on the material which was before National Mutual. Instead, it went beyond that material to indicate the additional evidence which would have been required to make National Mutual's decision fair and reasonable. For example, it noted the issue left open by the report of Dr Kirkwood on the limiting effect of the respondent's double vision and regretted the failure of the psychiatric report to consider the psychological effects of his facial injury and chronic pain. Other reports suggesting the respondent's ability to do light, unskilled work, were criticised as based on unstated assumptions which were not shown to be applicable to the respondent. Finally, the Tribunal noted the absence of any medical or occupational evidence of the combined effects of all the respondent's injuries on the likelihood of his engaging in work for which he was reasonably qualified by education, training or experience. 34 The extent of those reflections on the sufficiency of the material before National Mutual is a powerful indication that the Tribunal looked beyond the decision which it would make on the same material to whether, given the deficiencies to which it pointed, National Mutual's decision was fair and reasonable. Accordingly, it can be said of the present decision of the Tribunal as the Full Court said in National Mutual v Campbell (supra), at 571; "A fair reading of the Tribunal's reasons as a whole shows that it was fully aware of the nature of its task. It directed its mind to the task imposed upon it by s 37(6) as well as to its function under s 37(3). There is no basis, in the present circumstances, for saying that it exceeded the limitation imposed upon it by s 37(4)."

(b) Did the Tribunal err by concluding that National Mutual's decision was necessarily unfair or unreasonable because the Tribunal itself would have reached a different decision? 35 Although, as indicated in [33] above the Tribunal may have regard to its own presumptive decision on the material before itself as a guide to the fairness or reasonableness of an insurer's decision, it would be an error for it to regard a difference between the two decisions as conclusive of the question identified in [32] of these reasons. The answer to the question may be one on which "reasonable persons may reasonably take different views" to use the language of North J in Doyle v City of Glasgow Life Insurance Co (1884) 53 L.J. Ch 527, at 529, quoted with approval by McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Ltd (supra), at 77,536. 36 However, the Tribunal here clearly did not regard the answer furnished by National Mutual in that light. It considered, in effect, that reasonable persons could not have answered the question as National Mutual did because, amongst other reasons, the medical evidence was not comprehensive enough to support a conclusion that Mr Scollary was able to undertake "light, unskilled work." Likewise, it concluded that there had been no consideration of whether his qualifications and experience equipped him for work of that kind, assuming it to be available. I cannot impute to the Tribunal any error of law in adopting those views which were open on the facts.

(c) Was the Tribunal entitled to substitute its own decision for National Mutual's decision which it set aside? 37 The answer to this question depends, in part, on the point in its reasoning at which the Tribunal substituted its own decision. As indicated at [35] above, it would be an error of law for the Tribunal to regard a difference between its view and the insurer's decision in respect of TPD as conclusive of the issues of fairness and reasonableness. However, once the Tribunal had properly concluded that it was not satisfied, as required by s 37(6), that National Mutual's decision in its operation in relation to the respondent was fair and reasonable in the circumstances, it was bound to determine on one or other of the courses indicated in s 37(3)(b), (c) and (d). A further barrier to taking the course indicated in s 37(3)(d) is erected by s 37(4). That sub-section allows the Tribunal to substitute its own determination for that of the insurer only if that substitution is designed to place the complainant as nearly as practicable in the same position as he or she would be in if the relevant unfairness, or unreasonableness or both were no longer to exist. However, that sub-section confers a discretion on the Tribunal. In a case like the present, it is principally relevant to consider, in the exercise of that discretion, the likelihood, if the matter be remitted to the insurer under s 37(3)(b), of a decision being reached which is different from that favoured by the Tribunal but still fair and reasonable in its operation in relation to the complainant. Other facts relevant to the exercise of that discretion might include the time which could be expected to elapse before the insurer could make a new decision and any detriment which might be occasioned to the complainant by the resultant delay. 38 In the present case the Tribunal left to be gathered by implication its reasons for substituting, pursuant to s 37(3)(d), its own decision for the decision set aside. However, although Counsel for National Mutual contended that the Tribunal should have remitted the matter to the trustee and National Mutual pursuant to s 37(3)(b), he did not contend that the Tribunal, in exercising the discretion contemplated by s 37(4), had taken account of extraneous or irrelevant matters or had failed to take into account some material consideration. In McAuliffe v Secretary, Department of Social Security (1991) 23 ALD von Doussa J, after referring to earlier authority, observed, at 293; "In my view when the reasons of the Tribunal are read as a whole, and in light of the documentary evidence as to the appellant's banking and business transactions including those which disclose receipts as a commission agent in real estate, and the applicant's taxation returns, the basis of the reasoning of the Tribunal may be inferred clearly enough." That passage was expressly approved by a Full Court of this Court in McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, at 617. For a similar injunction to take a broad approach to the written reasons of specialist tribunals, see Wu Shan Liang (supra), at 272, and the cases, in addition to McAuliffe, there cited. On a careful reading of the Tribunal's reasons as a whole, according them the benevolence mandated by those authorities, I have been unable to conclude that the Tribunal's discretion miscarried in either of the ways just indicated. Nor, upon the facts, is the result of the Tribunal's decision so unreasonable or plainly unjust that it should be inferred that the exercise of the discretion has miscarried; see eg House v The King (1936) 55 CLR 499, at 505. Accordingly, this third ground of attack on the Tribunal's decision also fails.

Conclusion 39 As the applicant has been unable to establish that the Tribunal committed an error on a question of law formulated in any of the three ways for which it contended, the application must fail. Accordingly, it will be ordered that the decision of the Tribunal be affirmed, the application to this Court be dismissed and the applicant pay the respondent's costs of the application. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Kevin D Le Plastrier, General Counsel, AXA Asia Pacific Holdings Limited

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Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)