FEDERAL COURT OF AUSTRALIA
Carrette v Superannuation Complaints Tribunal [2017] FCA 640
File number: NSD 1854 of 2016 Judge: ALLSOP CJ Date of judgment: 29 May 2017 Catchwords: SUPERANNUATION – where trustee had rejected complainant’s claim for a total and permanent disablement benefit – review of decision of the Superannuation Complaints Tribunal affirming decision of the trustee – where Tribunal erred by failure to engage with critical parts of medical evidence before it – orders made remitting matter to be determined by the Tribunal in accordance with reasons Legislation: Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37, 46 Cases cited: Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472
Mercer Superannuation (Australia) Ltd v Billingshurst [2016] FCA 1274
Date of hearing: 29 May 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance
Insurance ListCategory: Catchwords Number of paragraphs: 42 Counsel for the Applicant: Mr KC Fleming QC with Mr A Quinn Solicitor for the Applicant: Somerville Laundry Lomax Solicitors Counsel for the Second Respondent: Mr MT Hickey with Ms S Forder Solicitor for the Second Respondent: Crown Law ORDERS
NSD 1854 of 2016 BETWEEN: DARRYL ROBERT CARRETTE
Applicant
AND: THE SUPERANNUATION COMPLAINTS TRIBUNAL
First Respondent
BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
29 MAY 2017
THE COURT ORDERS THAT:
1.The decision of the Superannuation Complaints Tribunal dated 20 September 2016 be set aside.
2.The matter be remitted to the Tribunal for re-hearing.
3.The second respondent pay the costs of the applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an appeal on a question of law under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act) from a decision of the Superannuation Complaints Tribunal (the Tribunal) made on 20 September 2016. In October 2016, a Notice of Appeal was filed in this Court. The matter was placed into the Insurance List. Directions were made on 7 December 2016 for bringing the matter to trial and in April 2017, the matter was set down to today for hearing. May I begin by saying that my capacity to deliver judgment today is in no small part a consequence of the quality of assistance that I have received from counsel and solicitors, both in their written submissions and orally today.
The Tribunal’s decision was a review under Pt 6 of the Act of a decision of the trustee, in this case the Board of Trustees of the State Public Sector Superannuation Scheme. The Tribunal consisted of a presiding member and another member, one of whom was medically trained. The nature of this…
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Details
- Case
- [2017] FCA 640
- Decision Date
CaseChat Overview and Summary
Carrette was the plaintiff and the Superannuation Complaints Tribunal was the defendant in this case, which was heard in the Federal Court of Australia. The plaintiff's claim for a total and permanent disablement benefit was rejected by the trustee, and the decision was reviewed by the Superannuation Complaints Tribunal, which upheld the trustee's decision. The plaintiff sought judicial review of the Tribunal's decision, arguing that the Tribunal had erred in failing to properly consider critical parts of the medical evidence before it. The court was required to determine whether the Tribunal had erred in its decision by not adequately engaging with the critical parts of the medical evidence before it, and whether the plaintiff's employment with the Queensland Department of Main Roads had caused his total and permanent disablement.
The court found that the Tribunal had indeed erred by failing to adequately engage with critical parts of the medical evidence before it. The court noted that the Tribunal had failed to consider the evidence of the plaintiff's ongoing symptoms after 1999, which suggested that his residual symptoms were in part modified by ongoing treatment. The court also found that the Tribunal had not properly considered the evidence of the differences between the plaintiff's symptoms following his employment with the Queensland Department of Main Roads and those following his employment with the NSW Police Force. The court held that the Tribunal's failure to properly consider this evidence amounted to a failure to engage with critical parts of the medical evidence before it.
As a result of the Tribunal's error, the court set aside the Tribunal's decision and remitted the matter to the Tribunal for re-hearing. The court also ordered the defendant to pay the plaintiff's costs. The court emphasised that the Tribunal was required to properly consider all relevant evidence before it, including critical parts of the medical evidence, in order to make an informed decision. The court held that the Tribunal had not done so in this case, and that its decision was therefore flawed.
In summary, the court found that the Tribunal had erred in failing to adequately engage with critical parts of the medical evidence before it, and that this error was sufficient to vitiate the Tribunal's decision. The court set aside the Tribunal's decision and remitted the matter to the Tribunal for re-hearing, and ordered the defendant to pay the plaintiff's costs.
The court found that the Tribunal had indeed erred by failing to adequately engage with critical parts of the medical evidence before it. The court noted that the Tribunal had failed to consider the evidence of the plaintiff's ongoing symptoms after 1999, which suggested that his residual symptoms were in part modified by ongoing treatment. The court also found that the Tribunal had not properly considered the evidence of the differences between the plaintiff's symptoms following his employment with the Queensland Department of Main Roads and those following his employment with the NSW Police Force. The court held that the Tribunal's failure to properly consider this evidence amounted to a failure to engage with critical parts of the medical evidence before it.
As a result of the Tribunal's error, the court set aside the Tribunal's decision and remitted the matter to the Tribunal for re-hearing. The court also ordered the defendant to pay the plaintiff's costs. The court emphasised that the Tribunal was required to properly consider all relevant evidence before it, including critical parts of the medical evidence, in order to make an informed decision. The court held that the Tribunal had not done so in this case, and that its decision was therefore flawed.
In summary, the court found that the Tribunal had erred in failing to adequately engage with critical parts of the medical evidence before it, and that this error was sufficient to vitiate the Tribunal's decision. The court set aside the Tribunal's decision and remitted the matter to the Tribunal for re-hearing, and ordered the defendant to pay the plaintiff's costs.
Orders
Orders of the court
1. The decision of the Superannuation Complaints Tribunal dated 20 September 2016 be set aside.
2. The matter be remitted to the Tribunal for re-hearing.
3. The second respondent pay the costs of the applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
For ease of reference, I set out what appears under questions 1, 2, 3 and 4, and the summary on page 5 of that report (see pages 138 to 141 of Pt C):1.Do you agree with the analysis and conclusion drawn by Ms Stern in her above mentioned report?Broadly, I would agree. However, there is some evidence that Mr Carrette had some enduring symptoms after 1999 and only stopped antidespressants three years before he commenced with Queensland Main Roads, suggesting that his residual symptoms were in part modified by ongoing treatment.Complex posttraumatic stress disorder is a valuable construct used in relation to his condition. The limitations of its usage arises out of the fact that it is not included in the DSM system.The content of his preoccupations following his employment at Main Roads, the nature of the stressors and the manifestations, for example his severe suicidal ideation, are significant and relevant differences. She clearly articulates the reasons for the differences with which I substantially agree.2.Has the chronic PTSD suffered by our client following his employment at the Queensland Department of Main Roads caused a total and permanent disablement (as defined in the policy) to our client?In my opinion, the total and permanent disablement experienced by Mr Carrette was substantially determined by his employment with the Queensland Department of Main Roads. His level of functioning prior to his employment in contrast to that following his employment is clearly apparent. The nature of the stressors he was exposed to in the course of that employment were manifest in the new signs and symptoms as expressed in his preoccupations following his employment with the Queensland Department of Main Roads. These led to a particular pattern of affect dysregulation and loss of self-esteem that were not present prior to his employment with Main Roads. This causal pathway accounts for the substantial aspects of his disability that were caused by this employment.3.Are the signs or symptoms exhibited by Mr Carrette following his employment with the Queensland Department of Main Roads different to the signs or symptoms exhibited by him during and following his employment with the NSW Police Force?I have answered this in my previous report. His symptoms were different to the extent of the content of his traumatic preoccupations and the severity of his affect dysregulation. The emergence of suicidal ideations as stated by Ms Stern in her report of 11th January 2013 are further important signs and symptoms for consideration.As summarised above, Malhi (2013) indicates that a given symptom namely blindness can have multiple causes. Whilst there was some similarity between the symptoms Mr Carrette had following his employment with the Queensland Department of Main Roads, they had a substantially different cause. Thus, a significant dimension of his clinical presentation in the first instance in the form of an adjustment disorder was different from his previous presentation.4.Are Mr Carrette’s current symptoms of chronic PTSD different from the symptoms of his PTSD caused during his employment with the New South Wales Police from the following perspectives:a) CausationHis symptoms following his employment with the NSW Police Force were different from these symptoms that he developed following his employment with the Queensland Department of Main Roads in several ways. Firstly, the content of his traumatic memories which drive the underlying dysregulation and point to the critical exposures were different. In the course of his duties, as summarised by Ms Stern, as a police officer he was exposed to death and suffering that were a substantial component of his ruminations.In contrast, the threats and criminality of his colleagues and the way that he was dealt with in relation to these matters were the content of his ruminations following his employment with the Queensland Department of Main Roads. Also the pattern of his acute distress and the triggers and the aspects of his workplace which he sought to avoid were also substantially different. These argue to the different mechanisms of causation.b) DiagnosisAs set out in the quote from Malhi, psychiatric diagnoses are based on symptoms. The same symptom can have multiple independent causes. Hence, it is a mistake to assume that the same diagnosis represents the same mechanisms of causation. The different diagnosis which Mr Carrette initially experienced was that of an adjustment disorder. Otherwise the diagnosis was a chronic posttraumatic stress disorder and major depressive disorder and he had previously been given these diagnoses. However, diagnoses as stated above do not characterise the issues of causation or necessarily the underlying pathology leading to the condition.c) Location, type and naturePrior to his employment by Main Roads, Mr Carrette had residual symptoms of posttraumatic stress disorder but from a clinical perspective, the condition was in remission. The nature of the stressor as set out in the A Criteria and the re-experiencing in the B Criteria were new and different following his employment. To that end, there were new triggers and aspects of his environment which he had avoided which had not previously been the case. To this extent, this was a different type of posttraumatic stress disorder. From a clinical perspective, its characteristics were different.Ms Stern’s opinion raises the issue as to whether he had a complex posttraumatic stress disorder. This emphasises the associated symptoms of posttraumatic stress disorder which whilst not core to the diagnosis, they are relevant in understanding its manifestations and consequence.In summary, the location of disorder namely in the brain, was the same but the type changed from being residual symptoms to a full blown chronic unrelapsing condition which had different traumatic exposures and memories as covered by the A and B Criteria. Also, aspects of the C Criteria, namely the avoidance of symptoms, were different.In the event the symptoms are different, have the symptoms he has suffered following his employment with the Queensland Department of Main Roads been the cause of his total and permanent disablement?Critical to understanding the cause of his total and permanent disablement is the course of Mr Carrette’s symptoms. In the absence of the stresses of his employment with the Queensland Main Roads, it is my opinion that he would have remained much as he was in the period between 2000 and the commencement of his employment. He was functioning at a reasonable level and actively engaged in his family and work life.The stresses that he experienced with the Queensland Department of Main Roads and his continued intrusive preoccupation with what transpired are the cause of his subsequent symptoms and led to his total and permanent disablement. His background minor symptoms and subsequent stresses to leaving that employment only have made a minor contribution to his current state.SummaryIn stating my opinion above that Mr Carrette developed significant new symptoms and that his employment with the Queensland Main Roads was the substantial cause of his current disability, in this report and in my report of 16th January 2013 I confirm that I have read Rule 428 of the Uniform Civil Procedural Rules 1999 (Queensland) and confirm that – d. The factual matter stated in my reports are, as far as I know, true; ande. I have made all enquiries considered appropriate; andf. The opinions stated in my report are genuinely held by me; andg. The report contains references to all matters I consider significant; andh.I understand my duty to the court as an expert and I have complied with that duty.
Ratio Decidendi
Legal Principle Established
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