Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCA 247

SUPREME COURT OF QUEENSLAND CITATION: Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCA 247 PARTIES: JOSEPH DAVID EDINGTON (appellant) v BOARD OF TRUSTEES OF THE STATE PUBLIC SECTOR SUPERANNUATION SCHEME (respondent) FILE NO/S: Appeal No 9344 of 2015 Appeal No 12164 of 2015 SC No 8074 of 2011 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2015] QSC 245 DELIVERED ON: 30 September 2016 DELIVERED AT: Brisbane HEARING DATE: 27 July 2016 JUDGES: Gotterson JA and Dalton and Burns JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Appeal dismissed. 2. The appellant is to pay the respondent’s costs of the appeal on the standard basis. CATCHWORDS: EQUITY – TRUSTS AND TRUSTEES – PROCEEDINGS BETWEEN TRUSTEE AND BENEFICIARIES OR THIRD PARTIES – where the appellant was a member of the superannuation scheme administered by the respondent – where the appellant suffered total permanent disablement (“TPD”) – where the appellant’s claim for a TPD benefit under the superannuation scheme was rejected because the Board was satisfied that the disablement was related to a pre-existing medical condition which was not disclosed prior to becoming an insured member or upon increasing his units under the scheme – where a judge of the trial division refused to set aside the decision made by the Board – where the appellant alleges that the Board fell into error in evaluating the ‘competing’ medical opinions for the purpose of making the decisions – where the appellant alleges that the Board breached its duty to accord him natural justice by -- 1 of 27 -- 2 failing to notify and give him an opportunity to make submissions on material adverse to his claim – whether the judge of the trial division erred in refusing to set aside the decision of the Board CONTRACT – INTENTION TO CREATE CONTRACTUAL RELATIONS – where the appellant was a member of the superannuation scheme administered by the respondent – where the appellant suffered TPD – where the appellant’s claim for a TPD benefit under the superannuation scheme was rejected because the Board was satisfied that the disablement was related to a pre-existing medical condition which was not disclosed prior to becoming an insured member or upon increasing his units under the scheme – where a judge of the trial division refused to set aside the decision made by the Board – where the appellant alleges that the judge of the trial division erred in deciding that the appellant failed to establish the requisite intention to create contractual relations on the part of the appellant and the Board – where there was no expression of intention to create contractual relations – where there is an already existing trustee-beneficiary relationship – whether an intention to enter into a contractual relationship, which would co-exist with a trust relationship, ought to be implied Superannuation (State Public Sector) Act 1990 (Qld), s 12 Superannuation (State Public Sector) Deed 1990 (Qld), s 4, s 77, s 84, s 86, s 88 Alcoa of Australia Retirement Plan Pty Ltd v Frost (2012) 36 VR 618; [2012] VSCA 238, considered Chapman v United Super Pty Ltd [2013] NSWSC 592, cited Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2015] QSC 245, approved Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8, cited Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36, considered Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5, cited COUNSEL: P W Hackett, with A Katsikalis, for the appellant S E Brown QC, with G J Handran, for the respondent SOLICITORS: Black & Co Lawyers for the appellant Crown Law for the respondent [1] GOTTERSON JA: The appellant, Joseph David Edington, commenced employment with the Department of Primary Industries on or about 10 September 2001. He was employed as a Field Assistant in the Department’s Fire Ant Eradication Program. He became a member of the State Public Sector Superannuation Scheme, known as “QSuper”, upon commencement of his employment. The respondent, Board of Trustees of the State Public Sector Superannuation Scheme (“the Board”), a statutory body corporate administers QSuper. -- 2 of 27 -- 3 The QSuper Deed and insurance terms [2] QSuper is established by a Deed entered into on 14 June 1990. The Deed is subordinate legislation.1 Under the terms of the Deed, the Board must provide insurance against death or total and permanent disablement (“TPD”) to members of QSuper.2 The expression “total and permanent disability” is defined in the Deed to mean: “disablement of a degree which, in the opinion of the board after obtaining the advice of not fewer than 2 medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience.”3 The Board must also decide the terms on which the death or TPD insurance is offered to members.4 [3] There are corresponding provisions in the Deed with respect to the provision of income protection insurance to members.5 The Board must keep an Accumulation Account for each member.6 [4] The Board published the terms on which it had decided that death or TPD insurance would be offered to members.7 One term, clause 3.2, provided for automatic membership, as an insured member, of the Accumulation Account death and TPD insurance arrangements, at a particular rate, for new employed members, that is to say, persons who became State public sector employees after 1 May 2000. The rate was measured by “units” held. Another term, clause 10, permitted the member to increase voluntarily the amount of cover by the acquisition of more units. [5] It was common ground that under clause 3.2, the appellant acquired four units of cover effective from 10 September 2001. On 10 December 2001, he voluntarily increased the amount of cover by acquiring an additional 17 units. The amount of death and TPD insurance benefits applicable to 21 units of insurance cover was $991,200. [6] Certain other terms denied an entitlement to be paid a benefit for this type of insurance in certain circumstances. Relevant for present purposes are clauses 6.2(c) and 6.5(c). The former of these, which related to the date when the member became an insured member, provided: “No insurance benefit will be paid for a claim unless: (i) the member has been an insured member for fewer than 10 continuous years; and (ii) the member did not lodge a personal medical statement at or about the date on which the member became an insured member; and 1 Superannuation (State Public Sector) Act 1990 (Qld) s 12(2). Consistently with that, the Deed’s provisions are denoted as “sections”. 2 Section 84. 3 Section 4. 4 Section 86. 5 Section 88. 6 Section 77. 7 Terms for arrangements which commenced on 1 May 2000; Affidavit E M Fletcher sworn 23 May 2012 Exhibit “EMF-8”: AB701-714. -- 3 of 27 -- 4 (iii) it is established to the satisfaction of the board that the total and permanent disablement or death or temporary disablement was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date on which the member became an insured member.” (emphasis supplied) [7] Clause 6.5(c) was in analogous terms but related to the circumstance where the number of units had been increased. Thus, items (ii) and (iii) thereof were referenced to the date of the increase in the number of units. [8] The appellant did not lodge a personal medical statement either at the date when he became an insured member of QSuper or, subsequently, at the date when he increased his units. He did not then disclose the fact that he had a pre-existing medical condition, namely, schizophrenia. The claim and events which preceded it [9] In reasons published on 21 August 2015, the learned primary judge outlined events which preceded the lodgement of a claim for insurance cover. His Honour said: “[66] On 2 January 2002, whilst hurriedly trying to exit a domestic property to escape two Rottweilers when carrying out a fire ant inspection, the [appellant] injured his right ankle. It transpired that the [appellant] had not in fact been at risk of being hurt by the dogs because there had been another fence between them and the [appellant]. [67] After that incident the following work-related incidents occurred to the [appellant]: (a) on 19 January 2002 he aggravated his right foot injury whilst walking; (b) on 7 February 2002 he hurt his right foot walking up a driveway; (c) on 29 February 2002 he suffered injury to his right foot when he fell after being chased off a property by dogs; (d) on 31 May 2002 he lost his footing when his right foot gave way while he was climbing through a fence; (e) on 8 July 2002 he suffered further aggravation of the injury to his right foot walking on uneven or rough ground. [68] Following the incident on 8 July 2002 the [appellant] visited his doctor who recommended that he take sick leave. After the [appellant] explained to that doctor his symptoms of tiredness and other vague symptoms of back pain, anxiety and stress ‘which had appeared after the initial dog incident of 2 January 2002, and the fear and anxiety that the further dog incident on 29 February 2002 had aroused in me’, the doctor suggested to the [appellant] that apart from the foot injury, the [appellant] -- 4 of 27 -- 5 may also have been ‘suffering from the effects of post- traumatic syndrome’.8 [69] The [appellant’s] last day of work was 8 July 2002.”9 [10] The appellant made a claim for income protection and was paid those benefits from 26 July 2002 to 23 June 2003. He also lodged a claim for a TPD benefit. He did so on 12 February 2003. Rejection of the TPD claim [11] On 26 August 2004, the respondent Board decided to reject the claim for a TPD benefit (2004 decision).10 The Board determined that the appellant had suffered TPD. The basis of the rejection was that the Board was satisfied that this disablement was related to a pre-existing medical condition which was not disclosed, but, consistently with the terms of insurance, should reasonably have been disclosed by the appellant. Thus, in the Board’s opinion, clause 6.2(c) applied to disentitle the appellant to TPD insurance cover in respect of the initial units and clause 6.5(c) so applied in respect of the after-acquired units. [12] The 2004 decision was litigated. The history of that litigation was summarised briefly by the learned primary judge as follows: “(a) On 5 November 2004 the [appellant] sought a review of the Board’s decision by the Superannuation Complaints Tribunal (“the Tribunal”) pursuant to the Superannuation (Resolution of Complaints) Act 1993 (Cth). On such a review the Tribunal undertakes a hearing de novo for the purpose of determining for itself whether or not the decision of a trustee of a superannuation fund was, in its operation in relation to a complaint, fair and reasonable. (b) On 2 October 2006, the Tribunal affirmed the decision of the Board. The [appellant’s] appeal to the Federal Court was dismissed on 14 December 2007. However on 15 May 2008 an appeal from that decision to [a full court of the Federal Court] was allowed by consent, previous orders set aside and the matter remitted to the Board to decide the matter, informed by a further medical report favourable to the [appellant] which had not been before the Board when it decided to reject the claim.”11 [13] On 25 September 2008, the Board decided for a second time to reject the appellant’s claim for a TPD benefit (“2008 decision”). Whilst it determined that the appellant had suffered TPD, the Board also was satisfied that the disablement was related to a pre-existing medical condition which should reasonably have been disclosed. The 8 His Honour noted that these quotes are from the appellant’s letter to the Board dated 2 August 2004, which was before the Board at the time of the impugned decision (and also the 2004 decision) to which reference is made later in these reasons. 9 AB1329-1330. 10 This decision was, in fact, a decision to affirm the decision of a duly-appointed delegate to decline the TPD claim made on 23 May 2003. The decision was made upon a review requested by the appellant. 11 Reasons [6]. The summary was drawn from the interlocutory decision of Mullins J in Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211 at [17]-[47]. -- 5 of 27 -- 6 Board resolved to affirm its previous decision that the appellant was not entitled to a TPD benefit. [14] This decision, too, was the subject of litigation which the learned primary judge also summarised. His Honour noted: “(d) On 15 January 2009 the [appellant] again sought a review of the Board’s decision by the Tribunal. (e) On 11 September 2009, the Tribunal affirmed the decision of the Board. On 21 May 2010, the [appellant’s] appeal to the Federal Court was successful, Reeves J determining that the Tribunal had misdirected itself about the nature of its powers of review. On 1 February 2011, the Board’s appeal to [a full court of the Federal Court] was allowed, with the consequence that the Tribunal’s decision affirming the Board’s decision of 25 September 2008 was reinstated.”12 [15] In the wake of his unsuccessful review challenging the 2008 decision, the appellant commenced proceedings in the trial division of the Supreme Court on 12 September 2011 with the objective of having the rejection decision reversed. These proceedings sought both relief under s 8 of the Trusts Act 1973 (Qld) and contract- based remedies. The making of the 2008 decision [16] The Board made its 2008 decision in circumstances where it had first been briefed with a number of documents. The learned primary judge listed those documents as follows: “(a) A submission to the Board for the purposes of its decision which was made by ‘QSuper’ and signed by QSuper’s ‘Manager Legal Review’; (b) The equivalent submission by QSuper which had been placed before the Board at its meeting on 26 August 2004 together [with] a multiplicity of medical and other reports which were marked as appendices “A” to “R”; (c) A report by a Dr De Leacy Psychiatrist dated 22 October 2005; (d) A report by Dr Reddan Psychiatrist dated 9 March 2006; (e) The determination and reasons of the Tribunal in relation to the hearing it conducted in respect of the Board’s 2004 decision; (f) The decision of Justice Collier of the Federal Court on appeal from the Tribunal; (g) The decision of the Full Federal Court on appeal from Justice Collier; (h) A further report of Dr Reddan Psychiatrist dated 15 July 2008; (i) Three submission[s] by the [appellant’s] solicitors dated respectively 4 August 2008, 18 August 2008 and 11 September 2008; 12 AB1312. -- 6 of 27 -- 7 (j) A memorandum of advice from Mr McLeod, Barrister dated 22 August 2008; (k) Two letters from Q-Super’s case manager dated 26 May 2003, one to DPI and one the [appellant].”13 [17] It is convenient, at this point, to set out a number of preliminary observations made by his Honour with respect to certain of those documents. The observations provide a substantive and chronological context to the issues in dispute in this appeal. They are: “[78] As to the two QSuper submissions: (a) As I have mentioned, the Board’s 2004 decision was an appeal from a decision of a delegate pursuant to s 30 of the Deed. (b) The Board’s 2008 decision was not an appeal from a decision of a delegate but was occasioned by virtue of the matter having been remitted back to the Board by the Full Federal Court. (c) Neither of the QSuper submissions were “decisions” of delegates of the Board. (d) The 2004 QSuper submission was a report which I infer was prepared by a person appointed for that purpose pursuant to the power so to do which was conferred on the Board by s 7 of the Act (which permitted the Board to employ staff ‘engage consultants; and do anything else necessary or convenient to be done for, or in connection with, the performance of its functions’). It seems to be common ground that the author was a staff member of a wholly owned subsidiary of the Board, namely QSuper Limited. (e) The 2008 QSuper submission was a similar report which I infer was prepared by a person appointed either pursuant to s 7 or part 3A of the Act (which had been introduced in 2007). Part 3A of the Act created a mechanism by which a particular ‘government superannuation officer’ could be appointed such that the officer could be directed to prepare such reports or could take steps to ensure that particular public service employees were assigned to that task. [79] As to the reports of Drs De Leacy and Reddan: (a) A report of Dr Reddan had been before the Board on the occasion of its 2004 determination and was adverse to the [appellant]. It formed one of the appendices to the 2004 QSuper submission. (b) The report of Dr De Leacy was a report favourable to the [appellant] which had not been before the Board on the occasion of its 2004 determination. It concluded that 13 Reasons [76]. These documents, at AB195-379, are part of Exhibit 1. -- 7 of 27 -- 8 the post-traumatic stress disorder (“PTSD”) which had been caused by a work-related dog incident had rendered the [appellant] TPD within the meaning of the insurance terms. It was critical of the report of Dr Reddan. (c) The report of Dr Reddan dated 9 March 2006 was a terse responsive report which indicated that she did not change her view. The report dated 15 July 2008 was a longer report. It developed her reasons for not changing her views and specifically referred to the report of Dr De Leacy, including by articulating flaws therein. [80] As to the submissions by the [appellant’s] solicitors dated respectively 4 August 2008, 18 August 2008 and 11 September 2008: (a) By letter dated 4 August 2008, the [appellant’s] solicitors contended that the consequence of the Full Court decision in relation to the Tribunal was that Dr Reddan’s report of 15 July 2008 was objectionable and should not be considered by the Board. The letter stated that in light of that submission, the [appellant] did not propose to obtain any further medical evidence and asked that the Board consider the matter. (b) By letter of 18 August 2008, the [appellant’s] solicitors - (i) reiterated their submissions that it was not contemplated that fresh evidence would be generated for the consideration of the Board; (ii) contended that the Board’s duty as a trustee acting in good faith such that it should not ‘now seek to overcome what it might perceive to be deficiencies in the case against Mr Edington by obtaining fresh customised evidence from Dr Reddan’; (iii) submitted that the Tribunal found that the operative condition was PTSD or anxiety disorder; and (iv) concluded with the proposition that the Board should make its deliberation and that the report of Dr Reddan dated 15 July 2008 would not be placed before it for consideration. (c) By letter dated 11 September 2008, the [appellant’s] solicitors - (i) noted that the Board had advised the [appellant] that its legal advice was that it was necessary to obtain a further report from Dr Reddan and that the [appellant] had been invited to make further -- 8 of 27 -- 9 submissions in light of the use that would be made of the report; (ii) reiterated the points that had been made in the previous letter, including that the Tribunal had found that the operative condition was PTSD or anxiety disorder; (iii) made submissions and criticisms concerning the substance of Dr Reddan’s report of 15 July 2008, including by the following (emphasis added): (i) There is simply no empirical evidence which would point to a change in Mr Edington’s mental state when it comes to his schizophrenia. All the evidence points to Post Traumatic Stress Disorder. (ii) There is no evidence that but for the dog attack and its traumatic psychological effects that Mr Edington would not have continued to work with the Fire Ant Authority. The various matters reported by him as having occurred in the work place did not necessarily point to a steady decline in his capacity to do the work. These complaints may have been most reasonable and his recording of them as he was obliged to do may well have been simply a manifestation of concrete thinking attributable to his stable residual schizophrenia. That is there is no evidence that Mr Edington could not have continued to work in the absence of the major stressor event in the dog attack. In conclusion, Mr Edington has been left with a chronic Post Traumatic Stress Disorder because instead of assisting in treating the problem QSuper decided to have him retired. (d) The upshot of the foregoing was that by the time the matter came before the Board in 2008, it was both accurate and fair for the Board to regard the [appellant’s] position as contending for the proposition that the [appellant’s] TPD was due to a PTSD or anxiety disorder which had been caused by the work-related dog incident referred to in Dr De Leacy’s report.” [18] I would add that the 2008 QSuper submission document concluded by offering two options for the Board’s consideration.14 Option A was that on further review of the evidence, the Board determines that the appellant has a TPD; that his TPD was related to his schizophrenia which should reasonably have been disclosed had 14 AB204-207. -- 9 of 27 -- 10 personal medical statements been submitted when he became an insured member and when he increased the cover; and that, accordingly, the Board affirms its decision that the appellant was not entitled to the insurance benefit claimed. Material findings for Option A were set out.15 Option B was that on review of the evidence, the Board determines that the appellant’s symptoms of stress, which were due to his reaction to the dog incident in 2002, have caused his TPD and that he was entitled to the benefit claimed. [19] The Board’s minutes of its meeting on 25 September 200816 are dated 23 October 2008. The minutes record the determinations and resolutions to which I have referred. They also set out the Board’s material findings. Those findings were repeated in a Statement of Reasons for the decision.17 In that document, the issue for the Board to resolve was stated to have been whether the appellant’s TPD related to a pre-existing condition pursuant to QSuper’s insurance terms. [20] The material findings are these: “1. Mr Edington was employed as a Field Assistant, Fire Ant Control by the Department of Primary Industries. Mr Edington entered the QSuper Accumulation Account on 10 September 2001, with 4 insurance units effective from 10 September 2001 and 17 insurance units effective from 10 December 2001. 2. On 2 January 2002, Mr Edington sustained an injury to his right foot whilst inspecting a domestic property for fire ants. The injury was sustained as Mr Edington had to hurriedly exit the property because of a challenge by two Rottweiler dogs. 3. Mr Edington was retired from the Department of Primary Industries on 23 June 2003 and his income protection was paid for his foot injury under the Insurance Terms up to this date. 4. Mr Edington has been examined by various medical practitioners and the following diagnoses and comments have been made: (a) Dr Butler, Treating Psychiatrist, in his report dated 13 January 2003 diagnosed schizophrenia paranoid sub type with ongoing residual negative symptoms and an anxiety disorder. Dr Butler stated that the schizophrenia was first diagnosed in 1996. (b) Dr Olsen, Consultant Physician in Occupational and Environmental Medicine, in his report dated 2 April 2003 made a primary diagnosis of an injury to Mr Edington’s right foot as well as his back and neck, and a secondary diagnosis of schizophrenia (which he noted as being first diagnosed in 1996). 15 These are the findings subsequently set out in the minutes and the Statement of Reasons to which I refer. 16 AB380-382 in Exhibit 1. 17 AB383-394 in Exhibit 1. -- 10 of 27 -- 11 (c) Dr Reddan, Consultant Psychiatrist, in her report dated 3 May 2003 diagnosed schizophrenia. Dr Reddan stated that the schizophrenia was first diagnosed in the mid-1990s. (d) Dr Jamieson, Consultant Orthopaedic Surgeon, in his report dated 9 May 2003 made a primary diagnosis of right heel pain. (e) Dr De Leacy, Consultant Psychiatrist, in his report dated 22 October 2005 diagnosed schizophrenia, paranoid type, chronic, and post-traumatic stress disorder, chronic. 5. Dr Butler, Consultant Psychiatrist, stated in his report dated 13 January 2003 that since the diagnosis of schizophrenia, Mr Edington’s work options have been drastically reduced and that his illness limits his capacity to learn new skills, sustain attention, maintain concentration and process information. Dr Butler stated that the sort of job that could be suitable for Mr Edington would probably be part time and involving predominantly manual duties. 6. Ms Jooste, Treating Psychologist, stated in her report dated 11 March 2003 that with suitable counselling and therapy, Mr Edington should make a full recovery from the traumatic effects of the Rottweiler incident, and that his original condition of schizophrenia would continue as before. 7. Dr Olsen, Consultant Physician in Occupational and Environmental Medicine, stated in his report dated 2 April 2003 that as Mr Edington is struggling with his psychiatric illness, he cannot predict the short term progress and that Mr Edington would qualify for total and permanent disability. 8. Dr Olsen also stated in his report dated 2 April 2003 that Mr Edington only requires ongoing treatment for his schizophrenia, and that it was remarkable that he was working in the fire ant eradication program and his illness is moderating his ability to apply himself in the way that would be necessary for him to return to any work. 9 Dr Reddan, Consultant Psychiatrist stated in her report dated 3 May 2003 that: (a) Mr Edington will be permanently unable to perform the duties of his position as a field assistant and that the most significant issue which prevents him from returning to that position is the residual symptoms of schizophrenia. (b) Mr Edington’s anxiety around dogs would not prevent him from returning to some form of work. (c) The negative features of Mr Edington’s schizophrenia on its own have been and are of sufficient severity to impair Mr Edington’s capacity for sustained work. -- 11 of 27 -- 12 10. The Board notes that Mr Edington was extremely defensive about his schizophrenia to Dr Reddan and apart from admitting that he may have been hospitalised, once or twice, he refused to provide any details. 11. Dr Reddan, Consultant Psychiatrist further stated in her report dated 3 May 2003 that Mr Edington had told her that his psychiatric history was of absolutely no relevance and that he had only come to Dr Reddan’s evaluation to discuss his work related injuries. 12. Dr De Leacy, Consultant Psychiatrist, stated in his report dated 22 October 2005 that although Mr Edington’s anxiety symptoms may result from him being more susceptible as a result of his schizophrenia, his current symptoms of stress which had been discussed in this report were not due to schizophrenia but due to a severe stress reaction from the dog incident in 2002. 13. The Board notes that when Mr Edington was seeking reemployment, Dr Butler, Psychiatrist, in his report dated 17 July 2003 stated that Mr Edington recently described a considerable improvement in his physical symptomatology and that he no longer had the marked anxiety associated with exposure to dogs. 14. The Board notes that when Mr Edington was appealing to the Superannuation Complaints Tribunal, he was examined by Dr De Leacy, Psychiatrist, who stated in his report dated 22 October 2005 that Mr Edington reported an extreme fear of dogs and that he had a range of symptoms that fulfilled the DSMIV criteria for post-traumatic stress disorder by having the requisite number of symptoms from each category of intrusive symptoms, avoidance symptoms and hyperarousal symptoms. 15. Dr Reddan, Consultant Psychiatrist, stated in her report dated 15 July 2008 that the dog incident in 2002 was not a severely traumatic event for a diagnosis of post-traumatic stress disorder. Further, Dr Reddan stated that it was the schizophrenia which prevented Mr Edington from successfully maintaining a longitudinal work history. 16. The Board prefers the reasoning outlined in the medical reports by Dr Reddan, Consultant Psychiatrist because of the different medical histories given by Mr Edington to Dr Butler and Dr De Leacy. 17. The Board believes that Mr Edington’s current disablement was related to his schizophrenia which was diagnosed before he took out his 21 units of insurance and which should reasonably have been disclosed had a personal medical statement been submitted by him around the dates he received his insurance units in September 2001 and December 2001. -- 12 of 27 -- 13 18. With respect to Mr Edington’s disablement, the Board is satisfied after having considered all the evidence that it rendered him unlikely ever to be able to work again in a full- time job for which he is reasonably qualified by education, training and experience. 19. The Board notes that Mr Edington was retired on ill health grounds upon the decision of the Department of Primary Industries, and not QSuper.”18 The questions determined by the learned primary judge [21] The proceeding commenced in September 2011 progressed by way of pleadings. An amended claim was filed by leave on 4 July 2014.19 In a further amended statement of claim filed on 15 April 2015,20 the appellant pleaded in paragraph 41(f) that the decision of the Board that it was not satisfied that the TPD was not related to the pre-existing schizophrenia was not properly formed in accordance with the Board’s obligations to the appellant either as a trustee or an insurer. Paragraph 42A pleaded a contract between the appellant and the Board for payment of an insurance benefit to him. Paragraph 43 was critical to the pleading. It alleged that the Board failed to exercise its duties as trustee and its obligations under the contract as insurer in ways that were particularised in paragraphs 44 to 47E.21 Paragraph 50 alleged that having regard to what had been pleaded, the only opinion reasonably open to a trustee or an insurer in the position of the Board acting reasonably, in good faith and fairly, was that the appellant’s TPD was not related to the pre-existing schizophrenia condition. All these pleaded allegations were put in issue in an amended defence also filed on 15 April 2015.22 [22] At the request of the parties, the learned trial judge set down some five questions for separate determination. After a hearing in April 2015 and receipt of further written submissions in July 2015, his Honour made an order on 21 August 2015 which answered those questions. The questions and the respective answers to them were as follows: “Question 1: Should the decision made by the Board as trustee on 25 September 2008 be set aside on the grounds set out in paragraphs 41(f), 44-47E and 50 of the Further Amended Statement of Claim? Answer: No Question 2: If yes to question 1, should the Plaintiff’s TPD claim be remitted back to the Board for reconsideration, or determined by the Court? Answer: In view of the answer to question 1, it is unnecessary to answer this question. Question 3: Was there a contract in existence between the Plaintiff and the Board for the provision of insurance benefit? 18 AB391-394. 19 AB1019-1021. 20 AB1022-1062. 21 The paragraph in fact referred to paragraphs 44 to 47C but was evidently meant to be read as referring also to paragraphs 47D and 47E which had been added by amendment. 22 AB1063-1111. -- 13 of 27 -- 14 Answer: No Question 4: If yes to question 3, in forming the opinion that the total and permanent disablement of the Plaintiff was related to schizophrenia, did the Board breach the terms of an insurance contract on the grounds contained in paragraphs 41(f), 44-47E and 50 of the Further Amended Statement of Claim? Answer: In view of the answer to question 3, it is unnecessary to answer this question. Question 5: If yes to question 4, is the opinion required of the insurer one which becomes a matter for determination by the Court? Answer: In view of the answer to questions 3 and 4, it is unnecessary to answer this question.” 23 [23] Later, on 3 November 2015, his Honour made further substantive orders dismissing the appellant’s amended claim and ordering the appellant to pay the Board’s costs of the proceeding to be assessed on the standard basis.24 The appeals [24] On 18 September 2015, the appellant filed a notice of appeal against the order made on 21 August 2015.25 Later, on 1 December 2015, the appellant filed a separate notice of appeal against the orders made on 3 November 2015.26 [25] The grounds of appeal in the notice of appeal filed on 18 September 2015 are set out in some 34 paragraphs. Those grounds are adopted by the notice of appeal filed on 1 December 2015. There are no substantive additional grounds of appeal in it. [26] The 34 paragraphs to which I have referred challenge the findings made by the learned primary judge in certain of the paragraphs in the reasons for judgment published on 31 August 2015. They did so by criticising one by one each of the paragraphs in the reasons where a challenged finding was expressed. The appellant’s outline of argument of some 221 paragraphs followed the same pattern. [27] There was a very considerable degree of repetition in both documents arising from two circumstances. One was that, in a number of instances, the same substantive finding was expressed in more than one of the criticised paragraphs in the reasons. The other was that there were themes which were common to many of the criticisms. In implicit recognition of this, counsel for the appellant identified three issues for address in oral submissions. He informed the Court that those issues embraced the appellant’s principal points. He accepted that they were extracted from, and summarised, the important points in his client’s appeal.27 [28] It is appropriate in these circumstances to adopt the issues addressed in oral submissions as the framework for analysis of the appellant’s appeal. As a prelude 23 AB1305-1306. 24 AB1359. 25 AB1366-1374. 26 AB1375-1378. 27 Appeal Transcript 1-21 ll5-31; 1-26 ll15-29. -- 14 of 27 -- 15 to that, I note that the appellant does not contend that the learned primary judge misapprehended any of the legal principles to be applied. Issue 1 [29] This issue involved an attack upon the Board’s decision concerning a relationship between the appellant’s TPD and his pre-existing schizophrenia. The Board had fallen into error, the appellant alleged, in evaluating the “competing” medical opinions for the purpose of making the decision. The learned primary judge had erred in failing to find error on the Board’s part in this regard.28 [30] In developing this issue, the appellant submitted that there are a number of respects in which the Board erred. It is convenient to consider them individually. [31] Categorisation of medical reports: At paragraph 108 of the reasons for judgment, the learned primary judge categorised the medical evidence before the Board into three groups, namely: “(a) the medical opinion which supported the hypothesis of PTSD due to a work-related dog incident, namely: (i) the evidence of the registered psychologist, Mrs Jooste, contained in her letter of 19 November 2002 (which had been wrongly dated 2001) and her report of 11 March 2003; and (ii) the report of the psychiatrist, Dr De Leacy dated 22 October 2005; (b) the views of Dr Butler, Consultant Psychiatrist, contained in his reports of 13 January 2003, 17 July 2003, 15 July 2004 which contradicted the hypothesis of PTSD due to a work- related dog incident;29 and (c) the reports of Dr Reddan dated 3 May 2003, 9 March 2006 and 15 July 2008 which rejected the hypothesis of PTSD due to a work-related dog incident and attributed causality to the negative symptoms of schizophrenia.” [32] The appellant submitted that his Honour’s grouping replicated an error made by the Board by overlooking a significant point of commonality between the opinions of Dr De Leacy and Dr Butler. It was submitted that both psychiatrists had excluded the negative effects of the appellant’s schizophrenia as being a cause of his TPD. That commonality ought to have been reflected by categorising the reports in which those opinions were expressed into a fourth group. Once that group was recognised, it was further submitted, a clear division of opinion between Dr De Leacy and Dr Butler on the one hand and Dr Reddan on the other, would have been appreciated. [33] It is clear that Dr De Leacy did not believe that the residual features of the appellant’s schizophrenia had prevented him from working.30 His opinion, therefore, was that the TPD was not related to the pre-existing schizophrenia. 28 Ibid ll35-42. 29 Dr Butler was the appellant’s treating psychiatrist at the Logan Central Adult Mental Health Service. His three reports were Appendices “F”, “N” and “Q” to the 2004 QSuper submission to the Board. 30 Report paragraph 5: AB307. -- 15 of 27 -- 16 [34] However, the validity of the appellant’s submission is dependent upon Dr Butler having expressed substantially the same opinion. It is therefore necessary to consider his three reports to ascertain whether he did express such an opinion. [35] In his report dated 13 January 2003, Dr Butler identified three contributors to the appellant’s “work limitation”. He said: “The primary psychiatric diagnosis is that of Schizophrenia paranoid sub type with ongoing residual negative symptoms. Also Mr Edington suffers from an anxiety disorder not otherwise specified and orthopaedic problems referred to in the report by Dr Daunt and the podiatrist report of 9 November 2002. Mr Edington’s schizophrenic illness was diagnosed in 1996. At the time he was suffering from significant symptoms which required treatment with anti psychotic medication. Although the medication controlled his more overt symptoms he continued to display residual symptoms of schizophrenia which affected his motivation and social engagements. He was first made aware of the nature of his illness in the mid 1990s. The second diagnosis pertains to an anxiety disorder which resulted from the unfortunate incident whilst working as a Field Officer in Fire Ant Surveillance. Subsequent to that incident he has suffered from some phobic anxiety with relation to exposure to dogs and has experienced some avoidance. Also there has been an increase in his baseline level of agitation. I have taken his history several times regarding this matter and I do not believe that he has suffered from a fully fledged post traumatic stress disorder, the third diagnosis also pertains to the incident occurring whilst a Field Officer. He received substantial damage to his leg/ankle which has significantly restricted his mobility since. It is not my area of expertise to comment specifically upon it and such information would be required from other practitioners. To my knowledge neither of the last two diagnosis were pre existing prior to 10 December 2001. The three diagnoses all contribute to Mr Edington’s work limitation. Additionally he has some longstanding difficulties with literacy, which, in combination with his schizophrenic illness has greatly restricted the nature of available employment options. Hence, it is likely that with specific reference to the issue of ill health retirement, that the anxiety disorder and the physical disorder are the most pertinent contributing factors.”31 [36] The next report dated 17 July 2003 was written after the appellant’s employment had been terminated. It was written in support of his reinstatement to his previous position. Dr Butler made the following observations: “… I have ongoing concerns about the process of his discontinuation of his employment. If indeed his inability to continue employment is primarily related to his having a schizophrenic illness then it automatically begs the question of what his work performance was like prior to his injury and why appropriate action was not taken at that time. I noted in my report of the 13 January 2003 that the reasons for his being unable to work at that time were because of his 31 AB234-235. -- 16 of 27 -- 17 anxiety reaction to a feared dog attack and a physical injury he sustained at the time. It was also noted that his schizophrenic illness and his limited literacy skills could impair his capacity to engage in alternative employment particularly that of a clerical nature. Recently Mr Edington describes a considerable improvement in his physical symptomatology and he no longer has the marked anxiety associated with exposure to dogs. In my opinion, the most appropriate cause(sic) of action would be for him to be reinstated in his previous position provided that his work performance is monitored to determine his ongoing suitability for that position. If he was adequately able to fulfil the various job description requirements of his occupation prior to injury then there is a reasonable chance that he will be able to meet those obligations again. Alternatively further consideration for other duties within the auspices of the Fire and Surveillance Authority could be considered.”32 [37] Dr Butler’s final report dated 15 July 2004 was written for a similar purpose. He said: “… At the time of my original report dated 13 January 2003 I noted the ongoing impact of his schizophrenic illness upon retraining and employability as well as the salient effect of the emotional and physical consequences of the dog attack upon his ability to work specifically with the Fire Ant Surveillance Authority. Conclusions at that time were rather open ended given my limited knowledge of his physical morbidity and incomplete nature of his progressive recovery. I maintain the view that I expressed at the time that the major cause of his immediate disability was the anxiety and physical symptoms directly related to the dog attack and that his schizophrenic illness was a secondary issue. Consequently, on the basis of the information supplied by Mr Edington it appears that he has made a substantial physical recovery and no longer has the phobic anxiety regarding dogs. It seems likely that if, his previous position were available he would be able to fulfil the necessary requirements.”33 A little later, he added: “With respect to this, I believe that the disability prohibiting his unemployment was not directly linked to a pre-existing condition and, has subsequently proved to be a largely temporary impairment…”34 [38] It can be seen from Dr Butler’s second and third reports that he did not accept that the appellant had a TPD. He thought that he was capable of working in his previous position. Dr Butler acknowledged that the appellant had a temporary period of unemployability. He thought that the dog attack was the major cause of it but, relying on the appellant’s own report, he concluded that, by the time that his second report was written in July 2003, that cause had abated. 32 AB282. 33 AB286. 34 AB287. -- 17 of 27 -- 18 [39] Dr Butler did, in his latest report, state that he believed that the “disability prohibiting” the appellant’s employment was “not directly linked” to a pre-existing condition. However, that statement addressed the appellant’s temporary unemployability and not a TPD. Further, it negatived a direct linkage only to that unemployability. Dr Butler did not, at any point, express an opinion that the appellant’s TPD was not related to the pre-existing schizophrenia. [40] In these circumstances, I cannot accept the appellant’s attribution of error to the Board or the learned primary judge by having misapprehended Dr Butler’s opinion and a resultant failure to categorise his reports with that of Dr De Leacy. [41] Material finding 16: The appellant, in oral submissions, drew attention to paragraph 16 of the Board’s material findings. At paragraph 130 of the reasons, the learned primary judge observed that the “different medical histories” of which the Board was speaking were the different histories given by the appellant to Dr De Leacy on the one hand and to Dr Butler on the other. [42] I have already referred to Dr Butler’s account that, by July 2003, the appellant had self-reported that he no longer had marked anxiety associated with exposure to dogs. However, he told Dr De Leacy in October 2005 that he had “an intense fear of dogs” with “recurrent and intrusive distressing recollections of the event” and of having “recurrent distressing dreams” of the event.35 [43] The appellant’s submissions on this matter began with a reference to the decision of Reeves J in which his Honour appears to have understood the paragraph as referring to a medical history given by the appellant to Dr Reddan which differed from a consistent, but different, history given by him to Drs Butler and De Leacy.36 The appellant sought to employ that understanding to criticise the Board as having not detailed in the finding what the inconsistencies were and for having engaged in a “mere adoption” of the finding as it had been submitted to the Board by QSuper. [44] In my view, the matters raised by the appellant in regard to paragraph 16 do not bespeak error on the part of the Board or of the learned primary judge. It is tolerably clear that paragraph 16 comprehended the differences in the accounts respectively given by the appellant to Dr Butler in 2003 and then to Dr De Leacy more than two years later. It is a difference which a reader of the respective reports would have readily appreciated. [45] Rejection of the appellant’s criticisms of Dr Reddan’s report: Dr Reddan’s report dated 15 July 200837 was made against a background where she had provided a report on 3 May 200338 and she had been provided with Dr De Leacy’s report and Dr Butler’s later two reports. In her later report, Dr Reddan affirmed her previously expressed opinion that it was the appellant’s residual symptoms of schizophrenia that prevented him from returning to work. [46] Dr Reddan explained her reasons for affirming her opinion. In the course of so doing, she commenced upon some aspects of the observations made by Dr De Leacey. Dr Reddan said: “Dr De Leacy’s report indicates that he evaluated Mr Edington 2½ years after my evaluation, at the request of Mr Edington’s solicitors 35 AB301. The “event” to which Dr De Leacy was referring was the dog incident on 2 January 2002. 36 [2010] FCA 504 at [39]. 37 AB356-358. 38 Appendix “J” to the 2004 QSuper submission to the Board: AB256-270. -- 18 of 27 -- 19 and, in the context of Mr Edington seeking a review of a decision by QSuper. Dr De Leacy was not entirely aware of Mr Edington’s longitudinal history of reported injuries or incidents at work and Mr Edington’s history, in 2003, and the accompanying material suggests that he ceased work around the middle of 2002 primarily because of symptoms in his foot. The longitudinal history suggests that Mr Edington struggled to obtain but, more relevantly, maintain work as a result of his chronic Schizophrenia. The negative symptoms of Schizophrenia are more disabling in the long term than the positive or acute psychotic symptoms. It would appear that Dr De Leacy may not have been aware of Mr Edington’s occupational history and the significant impact of his Schizophrenia on his occupational history. Mr Edington began working in the fire ant program in approximately September 2001 but, by 4 January 2002, he was reporting incidents at work. There were subsequent reports of incidents occurring on 19 January 2002, 7 February 2002, 29 February 2002, 31 May 2002 and 8 July 2002. His treating psychiatrist, Dr Butler, had reported that Mr Edington had problems being around other people and, in 2003 he expressed considerable distrust of his work mates. These problems as well as his negative symptoms, are likely to have significantly affected his response to fairly minor injuries and to have made it increasingly difficult for Mr Edington to cope at work. The incident where Mr Edington, and a co-worker entered a yard and heard dogs barking occurred as far as could be determined, on 29 February 2002. At interview on 29 April 2003, Mr Edington reported that he and his co-worker heard growling from what sounded like two large dogs but they did not actually see the dogs nor were they chased by them. He reported that, as he tried to get over the fence, he fell and landed on cement, causing an injury to his right foot. The dogs were actually unable to attack [him] and his co- worker. Mr Edington described this incident spontaneously without distress or evidence of avoidance. By the time Mr Edington was evaluated by Dr De Leacy 2½ years later, he reported considerably more fear. In any event, although it would have initially been frightening to hear the dogs growling and it would have been appropriate for [him] and his co-worker to exit the property quickly, this is not a severely traumatic event for an adult male and a severely traumatic event is required for a diagnosis of PTSD. Mr Edington described anxiety about dogs but this did not amount to a Specific Phobia which, in any event, would not prevent Mr Edington from returning to work. A Specific Phobia is a treatable condition if he had sought treatment from the mental health clinic where he attends. As previously stated, the referring letter refers to Dr Butler stating that Mr Edington no longer had severe anxiety of dogs as early as 2003. Symptoms of PTSD are almost always referred to 'spontaneously and, in a medicolegal context, it is important not to ask leading questions, as suggestibility is heightened in that context. It should be noted that, when interviewed in 2003, Mr Edington was quite -- 19 of 27 -- 20 guarded and defensive about his Schizophrenia but not at all about any work related injuries. Dr De Leacy’s comments about why Mr Edington did not describe the incident or his symptoms in 2003 the same way as he had in 2005 are personally directed and they reflect a failure to consider other alternative explanations. Clearly Mr Edington has wanted to work but he suffers from a major mental illness and, as previously stated, the most disabling aspect of Schizophrenia is the negative symptoms rather than the acute positive psychotic symptoms. It is the Schizophrenia which prevented Mr Edington from, as previously stated, successfully maintaining a longitudinal work history…”39 (emphasis supplied) [47] The learned primary judge responded to criticisms made for the appellant of Dr Reddan’s reports at paragraph 131 of his reasons. His Honour described the criticisms as “grossly overstated”. He then made the following observations: “(a) The evidence before Dr Reddan was that there were two dog incidents: one which occurred on 2 January 2002 and another which occurred on 29 February 2002. The evidence before the Board included the plaintiff’s own letter which referred to both incidents being productive of stress. (footnote omitted) (b) I agree that in a section of Dr Reddan’s third report (and to a lesser extent the first report) she seems to have confused the second incident with the first incident and that confusion is a valid criticism of one aspect of her reasoning. (c) But the confusion does not give rise to the conclusion that no reasonable person in the Board’s position could have accepted the reliability of Dr Reddan’s analysis. (d) In evaluating the reliability of the reports, the inconsistency in medical histories was far more significant and the failure of Dr De Leacy even to advert to it was a far weightier criticism of his reasoning than was the impugned aspect of Dr Reddan’s reasoning. (e) For completeness I note that the plaintiff also criticised the fact that in evaluating whether the plaintiff was TPD Dr Reddan assessed the impairment by reference to the position description that the DPI had produced for the position which the plaintiff occupied… In my view a reasonable person would regard that as legitimate reasoning by the doctor.” [48] On appeal, the appellant focussed upon Dr Reddan’s reference to the dog incident as one that occurred on 29 February 2002. That, the appellant submitted, revealed a very significant misunderstanding by Dr Reddan of the appellant’s history to a point of ignoring, or ignorance of, the dog incident that had occurred on 2 January 2002 and, according to the appellant, was the source of his extreme stress. [49] There were, in fact, two work-related dog incidents reported by the appellant. They were referred to by Dr Reddan in her report dated 3 May 2003. During the 39 AB356-358. -- 20 of 27 -- 21 evaluation on 29 April 2003, the appellant described the incident on 2 January 2002. Dr Reddan’s report contains the following summary of the appellant’s description of it: “…He stated that he and his partner entered a property at Woodridge and they were not initially aware that there were any dogs on the property and the residence had no warning signs about dogs. He stated that when he and his partner heard some growling from what sounded like two large dogs, they ran off. They did not actually observe the dogs, nor were they chased by them. He stated that as he tried to get over the fence, he slid and crashed to the cement. He stated that the dogs were unable to escape, as there was a gate in the stairwell. He stated that when he fell his partner, Mark, would not assist him. He stated that he got up with great difficulty and was then ‘wonky’ on his legs. He stated that he hobbled over to the other side of the footpath and telephoned his team leader. He stated that his team leader arrived and drove him back to the depot. He stated that by that stage he was in ‘general pain all over,’ particularly in his feet and legs. He stated that he was ‘practically crippled,’ but none of his work mates would assist him. He stated that he was instructed to go home and apply for WorkCover payments.”40 Later, she noted that the appellant said that, “as a result of the incident on 2 January 2002”, he developed both problems with his foot and a phobia of dogs.41 [50] There is a brief reference in Dr Reddan’s first report to the recording in an employer incident report of a report by the appellant of another dog incident on 29 February 2002.42 The reference is in these terms:- “…He reported that on 29 February 2002 he suffered an injury to his right foot after being chased off a property by dogs and falling behind a fence…”43 Dr Reddan did not refer to any oral account of that incident having been given by the appellant during the evaluation. [51] It is evident that when she wrote her report dated 15 July 2008, Dr Reddan was aware of the incident on 2 January 2002. Her reference in that report to the appellant’s “longitudinal history” plainly comprehended that incident. Her description of the incident which she went on to identify as having occurred on 29 February 2002, matched in detail her description in her first report of the appellant’s account of the incident on 2 January 2002 given by him during the evaluation. Moreover, it did not match her short extract of the incident reported as having occurred on 29 February 2002. [52] It is apparent that Dr Reddan erred in assigning the later date to the incident which the appellant had described orally during the evaluation. Plainly, Dr Reddan was referring to the incident on 2 January 2002. That error would have been readily inferred by members of the Board on reading Dr Reddan’s report. It would not have given cause to them to question the reliability of Dr Reddan’s report. His Honour was correct to reach a conclusion to that effect. 40 AB257. 41 AB265. 42 The report is curious in that there was no day dated the 29th of February 2002. 43 AB265. -- 21 of 27 -- 22 [53] For completeness, I mention that in the course of argument of the appeal, the possibility that Dr Reddan’s reference to 4 January 2002 in the list of work incidents might have been an erroneous reference to 2 January 2002, was canvassed. It is, I think, clear that it was not. In her first report Dr Reddan noted that the employee incident reports recorded that on 4 January 2002 the appellant had reported that he had developed a skin rash as a result of irritation from a chemical at work. [54] When the error is seen as one of the incorrect assignation of the date, there is no force in the appellant’s contention that Dr Reddan proceeded on a misunderstanding that none of the incidents in January and February 2002 in which the appellant was involved prior to 29 February 2002, concerned dogs. [55] Moreover, the opinion expressed by Dr Reddan in the quoted paragraph, which listed those and later work incidents, clearly was that problems with being around workmates and distrust of them, as well as negative symptoms of schizophrenia, were likely to have significantly affected the appellant’s response to fairly minor injuries and to have made it increasingly difficult for him to cope at work. The point being made by Dr Reddan was that the pattern revealed by those incidents typified the longitudinal history of a struggle to obtain and to maintain work which Dr Reddan had set out in her earlier report.44 This was particularly so with respect to employment from 1994 when the appellant began receiving the disability support pension. [56] Failure to have regard to chronology: The appellant submitted that the Board’s evaluation of the medical opinions failed to have regard to the chronological fact that the appellant’s TPD was diagnosed after the incident on 2 January 2002. That circumstance compelled a deduction that the TPD must have been caused by that incident. [57] This submission employs the assumption that because an event occurs after another, that event must have been caused by the other. Reasoning on the basis of such an assumption, as the appellant does here, is flawed in logic.45 The flaw is deepened when the reasoning is sought to be used to exclude any other preceding event from having had a causal relationship with the event which occurs later in time. [58] Not considering physical injuries: The appellant has criticised the Board for not having considered the impact of the work-related injury to his foot. There was an associated criticism that the Board had approached the appellant’s position as one staked on his TPD being solely related to the PTSD diagnosed by Dr De Leacy. This was a shortcoming for which, it was submitted, the learned primary judge had failed to make allowance. [59] There are two points to be made about these criticisms. The first is that, as the respondent has noted, in the reviewed determination dated 2 October 2006, the Tribunal, which had before it opinions of Dr D White, Orthopaedic Surgeon, dated 27 October 200546 and 2 December 2005,47 stated that there was a consensus of medical opinion that the appellant’s ankle injury, and his neck and back pain would not prevent him from undertaking semi-sedentary work such as his pre-injury employment.48 The 44 AB262, 269. 45 Such reasoning is conventionally deprecated as manifesting the post hoc, ergo propter hoc fallacy. 46 AB394.4-394.6. 47 AB394.7-394.8. 48 AB327. -- 22 of 27 -- 23 appellant did not reignite an argument linking his TPD to those injuries when his TPD claim was subsequently remitted to the Board. [60] The second point is that in correspondence addressed to QSuper dated 11 September 2008,49 the appellant’s solicitors had put his position as one which attributed his TPD to PTSD.50 This correspondence was before the Board on 25 September 2008. [61] Having regard to these two points, I do not consider the appellant’s criticisms as being justified. [62] Failure by the Board to make further enquiries: The appellant submitted in reply that, consistently with the decision of the High Court in Finch v Telstra Super Pty Ltd51 and of the Court of Appeal of Victoria in Alcoa of Australia Retirement Plan Pty Ltd v Frost,52 the Board should have made further enquiries of the psychiatrists whose opinions were before it. [63] In making this submission, the appellant did not criticise the distillation of the propositions derived by the learned primary judge from Finch at paragraphs 46 and 48 of the reasons for the judgment or his Honour’s assessment at paragraph 49 thereof of the guidance given in Alcoa as to the implications of the high duty on the trustee of a superannuation fund recognised in Finch. [64] The high duty to which his Honour referred was one which he had described as requiring the trustee “to make enquiries so as to properly inform itself of the relevant information”. As to the content of that duty, his Honour drew upon the reasons of Nettle JA (as his Honour then was)53 in Alcoa. He gave particular emphasis to the following observations made by Nettle JA: “[59] … Superannuation fund trustees are bound to give properly informed consideration to applications for entitlements and, if that necessitates further inquiries, then they must make them. [60] So to say does not mean that a trustee is required to do the impossible. Nor is it to suggest that a trustee is expected to go on endlessly in pursuit of perfect information in order to make a perfect decision. The reality of finite resources and the trustee’s responsibility to preserve the fund for the benefit of all beneficiaries according to the terms of the deed means that there must be a limit. Like the judge below, I accept that a trustee is not under an obligation to go on endlessly seeking more and more information.” [65] I now turn to the further enquiries that the appellant submitted the Board ought to have made. During his reply, counsel for the appellant submitted there were three steps that the Board should have taken by way of further enquiry. The first was that clarification should have been sought from Dr Reddan as to her understanding of the date of the first dog incident and if that revealed a misunderstanding on her part, then she should have been asked whether, with the misunderstanding corrected, her 49 AB368-371. 50 Extracts from this correspondence as set out in paragraph 80 of the reasons for judgment which I have quoted. 51 [2010] HCA 36; (2010) 242 CLR 254. 52 [2012] VSCA 238; (2012) 36 VR 618. 53 With whom Redlich JA and Davies AJA agreed. -- 23 of 27 -- 24 opinion with respect to schizophrenia would change. The same clarification should have been sought from Dr De Leacy. [66] Secondly, an agreed summary of the appellant’s longitudinal work history should have been put to both Dr Reddan and Dr De Leacy with the question whether it changed their opinions. Thirdly, the same question with the agreed summary should have been put to Dr Butler.54 [67] So far as the first step is concerned, for the reasons I have given, Dr Reddan’s error in referring to the dog incident on 2 January 2002 as having occurred on 29 February 2002 was apparent. It would have been readily inferred by the members of the Board on reading her reports that she understood that that incident had in fact occurred on 2 January 2002. Dr De Leacy did not make a corresponding error in his report. In the circumstances, it was not necessary to seek clarification from either doctor in this respect. [68] With regard to the second step, the longitudinal work history to which Dr Reddan referred was the appellant’s history in the workforce, not merely his employment at the Department of Primary Industries. There is no evidence to suggest that Dr Reddan misapprehended the appellant’s work history. The point she made in her third report was that Dr De Leacy may not have been aware of that history, not that he misunderstood it. In short, there was no reason for the Board to believe that either psychiatrist had formed their opinion upon an inaccurate picture of the appellant’s longitudinal work history. In these circumstances, the occasion for preparation of an agreed longitudinal work history in which prior inaccuracies were corrected, did not arise. [69] As to the third step, Dr Butler was of the view that the appellant did not have a TPD. There would have been no point in making any enquiry of him which asked him to hypothesise that the appellant did have a TPD and then to express an opinion as to its cause or causes. [70] In light of these considerations, I am unpersuaded that the enquiries proposed by the appellant were ones that the Board was required to make consistently with its duty to properly inform itself of relevant information. I would add that the Board had before it a very substantial amount of information. There was a clear difference of opinion between Dr Reddan and Dr De Leacy as to whether there was a relationship between the appellant’s TPD and his pre-existing schizophrenia. The Board made a reasoned choice as to which opinion it preferred. The position the Board was in is analogous with that of the trustee in Chapman v United Super Pty Ltd55 whose decision to reject a TPD claim on the basis of a choice made between competing medical opinions was unsuccessfully challenged in the Supreme Court of New South Wales. [71] To summarise, the appellant has alleged that the Board erred in a number of respects in its decision-making process. For the reasons I have given, in my view, none of the errors raised under Issue 1 has been made out. Issue 2 54 Appeal Transcript 1-51 ll12-26. 55 [2013] NSWSC 592. -- 24 of 27 -- 25 [72] The second issue, which is allied to the first, builds upon the recognition by the learned primary judge that the trustee of a superannuation fund has a duty to give real and genuine consideration to the material before it in making a decision on a claim. That duty, his Honour observed, may require the trustee to give attention to the requirements of natural justice and to give the claimant a chance to address adverse information.56 [73] It will be recalled that Dr Reddan’s third report, which was adverse to the appellant’s claim, was given to him. His solicitors made submissions with respect to it and those submissions were before the Board. [74] In oral submissions, the appellant’s counsel contended that the 2008 QSuper submission itself should have been given to the appellant.57 Two aspects to that submission were cited as canvassing matters of which the appellant ought to be have been notified and given the opportunity to make submissions. [75] The first aspect concerned a matter which had been raised before the learned primary judge with respect to the formulation of Option B in the submission.58 The complaint made by the appellant was that the option was not cast as the obverse of Option A; that is to say, cast as the Board being satisfied that the appellant’s TPD was not related to his pre-existing schizophrenia. Cast as it was, the option implied an onus on the appellant to prove that his dog incident-related stress symptoms were the cause of his TPD, it was submitted. The second aspect was the possibility that the Board might adopt the different medical histories given by the appellant to Dr Butler and Dr De Leacy as justifying a preference for Dr Reddan’s opinion as was envisaged by paragraph 16 of the material findings. [76] As to the first aspect, the options as presented reflected the material before the Board. Specifically, Option B reflected the submission made by the appellant’s solicitors largely in reliance upon Dr De Leacy’s opinion. To have cast Option B merely as the obverse to Option A would have left unmentioned the appellant’s principal contention concerning the responsibility of a PTSD for his TPD. For it to have been mentioned was beneficial to the appellant. In my view, Option B was not cast in a way that was adverse to the appellant. It was not incumbent upon the Board to have referred it to him for comment on that account. [77] I hold a similar view with respect to the different medical histories. As I have explained, paragraph 16 of the material facts did not misapprehend the different medical histories given by the appellant to Dr Butler and to Dr De Leacy respectively, as reported by them. Those histories differed markedly with respect to any continuing stress symptoms suffered by the appellant arising from the dog incident on 2 January 2002. The Board was entitled to accept each psychiatrist’s account of what the appellant had told him in that regard. The Board was not obliged to assume a possibility that either psychiatrist may have been mistaken as to the account given to him and, on the basis of such an assumption, offer the appellant an opportunity to correct any mistake. [78] For these reasons, the appellant has failed to establish a breach of duty on the part of the board in failing to accord him natural justice. 56 Reasons [57]. 57 Appeal Transcript 1-22 ll5-13. 58 Reasons [137]. -- 25 of 27 -- 26 Issue 3 [79] The third issue arises out of the answer given by learned primary judge to Question 3. His Honour found that the appellant had failed to establish the requisite intention to create contractual relations on the part of the appellant and the Board.59 [80] Intention is a necessary element of a contract.60 The relevant intention may be express or implied.61 Whether there is such an intention in particular circumstances is to be determined objectively from the “outward manifestations” of the parties’ intentions.62 [81] Here, there was no expression of intention to create contractual relations. Ought such an intention be implied? That question needs to be answered in the context of the evident trustee-beneficiary relationship that did exist between the appellant and the Board, and, it may be noted, had existed between the respective trustees and claimants in Finch and Alcoa. So seen, the question can be modified to one of whether an intention to enter into a contractual relationship which would co-exist with the trust relationship, ought to be implied. [82] It is highly relevant to answering the question to inquire whether there is a basis for concluding that the parties intended their relationship to include any substantive right or obligation which was outside those rights and obligations which were incidents of the trustee-beneficiary relationship and which, it might be thought, the parties intended would be enforced on the basis of contract only. The appellant did not identify any such right or obligation. That, to my mind, is all but fatal to his contention that a shared intention to create contractual relations ought to be inferred. It strongly suggests that the question should be answered in the negative. I agree with his Honour’s conclusion against a concurrent contractual relationship and with his reasons for it. [83] I would add that even if the question were answered in the affirmative, such an answer would not assist the appellant in a material way. In oral submissions, his counsel informed the Court that the appellant would rely on the same matters to prove a breach or breaches of contract as he had relied on to prove a breach or breaches of trust.63 To put it another way, if the appellant failed to prove any breach of trust, he would have failed also to have proved any breach of contract. Disposition [84] The appellant has not succeeded on any of the three issues which embrace the principal points raised by his grounds of appeal. His appeal must therefore be dismissed. It is appropriate that he pay the Board’s costs of the appeal on the standard basis. Orders 59 Reasons [175]. 60 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360-362 per Dixon CJ, McTiernan and Kitto JJ, applied in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25]. 61 See the authorities collected in Carter on Contract at para 08-020, f 4. 62 Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 428 per Mason ACJ, Murphy and Deane JJ. See also Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ. 63 Appeal Transcript 1-25 ll6-8. -- 26 of 27 -- 27 [85] I would propose the following orders: (1) Appeal dismissed. (2) The appellant is to pay the respondent’s costs of the appeal on the standard basis. [86] DALTON J: I agree with the reasons of Gotterson JA and with his proposed orders. [87] BURNS J: I agree with the reasons of, and the orders proposed by, Gotterson JA. -- 27 of 27 --