AMP v RTA & Anor - [2001] NSWCA 186

No judgment structure available for this case.

Reported Decision:
[2001] Aust Torts Reports 81-619

New South Wales

Court of Appeal

CITATION: AMP v RTA & Anor; RTA v AMP & Anor [2001] NSWCA 186

FILE NUMBER(S): CA 40319/00; 40399/00

HEARING DATE(S): 16/05/01

JUDGMENT DATE:
2 August 2001

PARTIES :

AMP General Insurance Ltd (Appellant CA 40319/00; First Respondent CA 40399/00)
Roads & Traffic Authority of NSW (Appellant CA 40399/00); First Respondent CA 40319/00)
Margaret Boxsell (Second Respondent)

JUDGMENT OF: Spigelman CJ at 1; Heydon JA at 41; Davies AJA at 170

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 2859/98

LOWER COURT
JUDICIAL OFFICER : Coleman DCJ

COUNSEL: J D Hislop QC/K Andrews (AMP General Insurance Limited)
J A McIntyre SC (Roads & Traffic Authority of NSW)
M L Williams SC/Ms P M McDonald (Second Respondent)

SOLICITORS: Gillis Delaney Brown (AMP General Insurance Limited)
Hunt & Hunt (Roads & Traffic Authority of NSW)
Carroll & O'Dea (Second Respondent)

CATCHWORDS: Torts - Negligence - Liability - Foreseeability - Causation - Remoteness - Whether employer liable to deceased employee’s widow for damage caused to her by employee’s suicide - Employer breached duty of care to employee causing back injury - Employee applied for extension of limitation period in order to bring action for damages for back injury - Employee suffered stress from cross-examination in the hearing of application - Employee developed depression and committed suicide shortly after hearing - D

LEGISLATION CITED: Compensation to Relatives Act 1897
Fatal Accidents Act 1846
Fatal Accidents Act 1976
Law Reform (Miscellaneous Provisions) Act 1934
Motor Accidents Act 1988
Workers Compensation Act 1987
Workmen's Compensation Act 1906 (UK)
Workmen's Compensation Act 1925 (UK)

CASES CITED:
See attached

DECISION: See paragraphs 168 and 169

CASES CITED

Annetts v Australian Stations Pty Ltd

(2000) 23 WAR 35

Avoushadi v CIC Insurance Ltd

(1996) 23 MVR 385

Bennett v Minister of Community Welfare

(1992) 176 CLR 408

Bird v Australian Iron & Steel Pty Ltd

(1979) 53 WCR 327

Campbelltown City Council v Mackay

(1989) 15 NSWLR 501

Chappel v Hart

(1998) 195 CLR 232

Chester v Council of The Municipality of Waverley

(1939) 62 CLR 1

Church v Dugdale and Adams Ltd

(1929) BWCC 444

Commonwealth of Australia v McLean

(1996) 41 NSWLR 389

Coyne v Citizen Finance Ltd

(1991) 172 CLR 211

Donoghue v Stevenson

[1932] AC 562

Doughty v Turner Manufacturing Co Ltd

[1964] 1 QB 518

Frost v Chief Constable of South Yorkshire Police

[1999] 2 AC 455

Grime v Fletcher

[1915] 1 KB 734

Haber v Walker

[1963] VR 339

Holdlen v Walsh

[2000] NSWCA 87

Hughes v Lord Advocate

[1963] AC 837

Jaensch v Coffey

(1984) 155 CLR 549

Kavanagh v Akhtar

(1998) 45 NSWLR 588

King v Associated Battery Makers of Australia Pty Ltd

(1954) 28 WCR 105

Kirkham v Chief Constable of The Greater Manchester Police

[1990] 2 QB 283

Kooragang Cement Pty Ltd v Bates

(1994) 35 NSWLR 452

Mahony v J Kruschich (Demolitions) Pty Ltd

(1985) 156 CLR 522

March v E & M H Stramare Pty Ltd

(1991) 171 CLR 506

Marriott v Maltby Main Colliery Co Ltd

(1920) 13 BWCC 353

M’Kew v Holland

1970 SC (HL) 20

Mitchell v Hunt

(1960) 34 WCR 56

Morgan v Tame

(2000) 49 NSWLR 21

Mount Isa Mines Ltd v Pusey

(1970) 125 CLR 383

Murdoch v British Israel World Federation

[1942] NZLR 600

Muscat v NSW Harness Racing Club Ltd

(1994) 11 NSWCCR 1

Nader v Urban Transport Authority of New South Wales

(1985) 2 NSWLR 501

Orange v Chief Constable of West Yorkshire Police

[2000] EWCA Civ 611

Page v Smith

[1994] 4 All ER 522

Pallister v Waikato Hospital Board

[1975] 2 NZLR 725

Parry v English Steel Corporation Ltd

(1939) 32 BWCC 272

Pigney v Pointers Transport Services Ltd

[1957] 2 All ER 807; [1957] 1 WLR 1121

In re Polemis & Furness Withy & Co

[1921] 3 KB 560

Reeves v The Commissioner of Police of the Metropolis

[2000] 1 AC 360;

Richters v Motor Tyre Service Pty Ltd

[1972] Qd R 9

Rosendale v Simmie & Co Pty Ltd

(1939) 45 ALR 498

Rowe v McCartney

[1976] 2 NSWLR 72

Smith v Commissioner of Police (No 2)

[2000] 20 NSWCCA 27

White v Chief Constable of South Yorkshire

[1999] 2 AC 455

Withers v London, Brighton and South Coast Railway

[1916] 2 KB 772

Wyong Shire Council v Shirt

(1980) 146 CLR 40

Zavitsanos v Chippendale

[1970] 2 NSWR 495

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40319/00
CA 40399/00
DC 2859/98

SPIGELMAN CJ

HEYDON JA

DAVIES AJA

2 August, 2001

AMP GENERAL INSURANCE LIMITED v

ROADS & TRAFFIC AUTHORITY OF NSW and

MARGARET BOXSELL

ROADS & TRAFFIC AUTHORITY OF NSW v

AMP GENERAL INSURANCE LIMITED and

MARGARET BOXSELL

Torts - Negligence - Liability - Foreseeability - Causation - Remoteness - Whether employer liable to deceased employee’s widow for damage caused to her by employee’s suicide - Employer breached duty of care to employee causing back injury - Employee applied for extension of limitation period in order to bring action for damages for back injury - Employee suffered stress from cross-examination in the hearing of application - Employee developed depression and committed suicide shortly after hearing

An employee (“the Deceased”) of the Roads & Traffic Authority (“the Defendant”) was injured in an accident at work on 27 February 1993. In 1997 the Deceased decided to commence a common law claim for damages against the Defendant. The limitation period for such a claim had expired and an application for an extension of the limitation period was heard on 24 April 1998. The Deceased was granted the extension but he suffered stress as a result of being cross-examined during the hearing. He developed depression and committed suicide eight days after the hearing.

As a result, his widow (“the Plaintiff”) suffered nervous shock and loss of financial support. The Plaintiff instituted proceedings against the Defendant for damages. The plaintiff was awarded $101,895 in damages for nervous shock and $176,933 under the Compensation to Relatives Act 1897 (NSW). The Plaintiff was also awarded $23,336 as Executrix of the Deceased’s estate. AMP General Insurance Limited (“the Insurer”) was ordered to indemnify the Defendant $307,164 (the total of the three amounts awarded to the Plaintiff). The Defendant and the Insurer appealed, challenging the damages awarded for nervous shock and under the Compensation to Relatives Act, but not the damages awarded to the Plaintiff in her capacity as Executrix of the Deceased’s estate.

Held by Spigelman CJ, Heydon JA and Davies AJA, allowing the appeal:

(Per Spigelman CJ)

1. The causal chain between the tort and the suicide was broken.

a. Considerations of policy and value judgments are

March v E & MH Stramare Pty Ltd

Chappel v Hart

Reeves v The Commissioner of Police of the Metropolis

c. There was no causation in fact. The cross-examination did not

operate to reactivate the psychiatric injury caused by the accident.

(Per Heydon JA)

2. a. For the purposes of determining reasonable foreseeability,

Jaensch v Coffey

b. It was not sufficient to find merely that development of a

psychiatric illness “of some kind” by the Deceased was foreseeable as a result of the physical injuries suffered by the Deceased on 27 February 1993. Suicide must have been reasonably foreseeable as a result of the 27 February 1993 accident.

Rowe v McCartney [1976] 2 NSWLR 72, applied.

(Per Davies AJA)

3. The cross-examination of the Deceased was a novus actus

interveniens

, which broke the chain of causation.

a. The depression and suicide were not a continuation of the

depression suffered by the Deceased following his back injury, but resulted from the cross-examination and the Deceased’s pursuit of compensation.

In the appeal by the Roads & Traffic Authority of NSW (CA 40399 of 2000) , the following orders are proposed:
1. That the appeal be allowed.

2. That Order 2 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff’s claim pursuant to the Compensation to Relatives Act 1897.

3. That Order 3 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff’s claim for damages for nervous shock.

4. That Order 4 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof that there be a verdict and judgment for the Roads & Traffic Authority of NSW against AMP General Insurance Ltd in the sum of $23,336 with interest from 13 April 2000.

5. That the Second Respondent pay to the Appellant, by way of restitution, all monies paid pursuant to the judgments in the Court below in respect of which the appeal has been allowed together with interest actually earned thereon from the date such sums were paid to today’s date.

6. That there be no order as to the costs of any party to the appeal.

In the appeal by AMP General Insurance Ltd (CA 40319 of 2000) the following orders are proposed:
1. That the appeal be allowed.

2. That Order 2 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff’s claim pursuant to the Compensation to Relatives Act 1897.

3. That Order 3 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof there be verdict and judgment for the Roads & Traffic Authority of NSW on the Plaintiff’s claim for damages for nervous shock.

4. That Order 4 made by the trial judge on 13 April 2000 be set aside, and in lieu thereof that there be a verdict and judgment for the Roads & Traffic Authority of NSW against AMP General Insurance Ltd in the sum of $23,336 with interest from 13 April 2000.

5. That the Second Respondent pay to the Appellant, by way of restitution, all monies paid pursuant to the judgments in the Court below in respect of which the appeal has been allowed together with interest actually earned thereon from the date such sums were paid to today’s date.

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40319/00
CA 40399/00
DC 2859/98

SPIGELMAN CJ
HEYDON JA
DAVIES AJA

Thursday, 2 August 2001

AMP GENERAL INSURANCE LIMITED v
ROADS & TRAFFIC AUTHORITY OF NSW and
MARGARET BOXSELL

ROADS & TRAFFIC AUTHORITY OF NSW v
AMP GENERAL INSURANCE LIMITED and
MARGARET BOXSELL

JUDGMENT

1 SPIGELMAN CJ: I have read the judgment of Heydon JA in draft. I adopt his Honour’s outline of the facts of the case and the issues on the appeal. I agree with the orders his Honour proposes. This case can be decided on the basis of causation.

Liability for Suicide

2 In Reeves v The Commissioner of Police of the Metropolis [2000] 1 AC 360, a prisoner had made two previous attempts at suicide, including one on the morning of his death. His defacto wife sued the Commissioner of Police under the Fatal Accidents Act 1976 for negligently causing her husband’s death. In the House of Lords, the Commissioner accepted that because of knowledge of an actual suicide risk there was a duty of care to take reasonable steps to prevent suicide but, nevertheless, contended that the act of suicide broke the causal chain on the basis of novus actus interveniens.

3 Lord Hoffmann referred to a case in which “the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being” (at 367H) and added:

“It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss.” (367H-368A)

4 To identical effect are the observations of Lord Bingham of Cornhill CJ in the Court of Appeal in Reeves (see [1998] 2 WLR 401 at 425A and of Lord Hope of Craighead in the House of Lords at 381A-E).

5 Similarly in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, Mason CJ said at 517-518:

“The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff’s injuries are not a consequence of the defendant’s negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk. …. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.”

6 In Reeves, Lord Hoffmann went on to observe:

“… there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.” (at 368C-D)

7 To similar effect are the observations of Lord Hope of Craighead:

“It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury. As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence. The person whom the duty is owed is, of course, under a corresponding duty to take reasonable care for his own safety. If he is in breach of that duty, his damages may be reduced on the ground of his contributory negligence. But if he injures himself by intentionally doing deliberately the very thing which the defendant is under a duty to prevent doing negligently, he may be found that he is unable to recover any damages. He may be found to have assumed the risk of injury, on the principle of volenti non fit injuria. Or it may be held that the chain of causation was broken by his deliberate act, in which case his claim will be defeated on the principle of novus actus interveniens. Or it may simply be that his loss, injury and damage will be held to have been caused wholly by his own fault, with the result that there will be no room even for a reduced award on the ground of contributory negligence.” (at 379H-380C)

8 Reeves has recently been considered by the English Court of Appeal in Orange v Chief Constable of West Yorkshire Police [2000] EWCA Civ 611. A prisoner committed suicide, but there was no reason to suspect he was suicidal. The Court applied Lord Hoffmann’s test of “very rare indeed” and found that liability had not been established.

9 I agree with their Lordships that a duty to protect a person from causing harm to himself or herself is rare or unusual. That test was satisfied in Reeves and in the earlier case of Kirkham v Chief Constable of The Greater Manchester Police [1990] 2 QB 283, because a duty existed to take steps to prevent suicide. Nothing like that appears in the present case. There was no duty upon the employer, or any person who had conduct of the proceedings, to protect the deceased from self harm.

10 The issue of whether or not suicide constitutes a relevant break in the chain of causation has been considered in two bodies of case law. First, under the workers compensation legislation in various jurisdictions (Withers v London, Brighton and South Coast Railway [1916] 2 KB 772; Grime v Fletcher [1915] 1 KB 734; Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353; Church v Dugdale and Adams Ltd (1929) BWCC 444; Parry v English Steel Corporation Ltd (1939) 32 BWCC 272; Rosendale v Simmie & Co Pty Ltd (1939) 45 ALR 498; King v Associated Battery Makers of Australia Pty Ltd (1954) 28 WCR 105; Mitchell v Hunt (1960) 34 WCR 56; Bird v Australian Iron & Steel Pty Ltd (1979) 53 WCR 327; Muscat v NSW Harness Racing Club Ltd (1994) 11 NSWCCR 1; Smith v Commissioner of Police (No. 2) [2000] 20 NSWCCA 27; Holdlen v Walsh [2000] NSWCA 87). The second group of cases involved, as this case does, Lord Campbell’s Act in various jurisdictions, including Pigney v Pointers Transport Services Ltd [1957] 1 WLR 1121; Murdoch v British Israel World Federation [1942] NZLR 600; Haber v Walker [1963] VR 339; Pallister v Waikato Hospital Board [1975] 2 NZLR 725. Reeves and Kirkham, the two English death in custody cases, were also brought under this legislation. There is also one case in which this issue has been considered in proceedings by an executor, in the context of a claim for damages for loss of expectation of life (Richters v Motor Tyre Service Pty Ltd [1972] QdR 9).

11 The workers compensation cases were concerned with a statutory formulation to the effect that “death results from the injury”. The issue was whether the injury itself had an effect on the mind of the deceased worker so that it could be said that the injury resulted in the suicide. Some of the cases posed the question of whether or not the injury led to a state described as “insanity”. At the time most of these cases were decided, suicide was itself a criminal offence and, accordingly, the focus on insanity as a defence to a suggestion of criminal conduct, was understandable. The issue is more appropriately expressed in terms of whether the worker’s will has been so overborne, that the suicide could not be regarded as an intentional act. (See Holdlen v Walsh supra at [37]-[38] and see also Haber v Walker supra at 351 lines 30-35 per Lowe J.)

12 The workers compensation cases tend to be of limited assistance because the appeals were generally confined to questions of law and, accordingly, the issue determined on appeal was usually expressed in terms of whether there was any evidence which could justify the finding of the trial judge that the causal chain had not been broken. This was the position in Holdlen v Walsh (see at [5] and [49]), where this Court held that there was evidence to support the findings of the trial judge and, on that basis, the appeal was rejected.

13 The later New South Wales cases consider a particular statutory provision, which excludes compensation for “intentional self-inflicted injury”, especially Bird v Australian Iron & Steel supra 229-230 and Holdlen v Walsh supra at [30]-[33]. No such formulation arises in the present case.

14 Furthermore, a number of these cases require the deceased’s family to establish that the insanity was the “direct” result of the injuries received in the work place. Subsequent brooding over the effects of the injury was not regarded as sufficient. This formulation is not appropriate for the causes of action presently under consideration, a breach of duty owed to Mrs Boxsell and the claim under the Compensation to Relatives Act.

15 The first of the Lord Campbell’s Act cases which concluded that the suicide did not constitute a novus actus interveniens was Pigney supra. Pilcher J expressly found that the Defendant could not reasonably have foreseen the suicide. However, his Lordship concluded that the death was “directly traceable” to the physical injury, applying the, now rejected, test of In re Polemis and Furness Withy & Co [1921] 3 KB 560. (See Pigney at 1123 and 1124.) Professor Fleming concluded:

Re Polemis

ALJ

16 In Murdoch v British Israel World Federation, the New Zealand Court of Appeal adopted the requirement of showing insanity as a direct result of injury, from the workers compensation cases, so that the suicide could not be characterised as a voluntary act.

17 The Court found such a connection in that case and, accordingly, concluded that a chain of causation had been established on the facts (at 631-632, 639-640). The test applied was whether or not “the insanity is the direct result of the injury” (631 line 44 per Myers CJ and “the injury was the direct cause of the insanity” per Ostler J at 641 line 8).

18 Murdoch’s case, like Pigney, was influenced by the test in Re Polemis. (See Hudson J in Haber v Walker 367-368.) Hence the use of the word “direct”.

19 As in the workers compensation cases, the relevance of insanity was based on the fact that suicide was a crime. Smith J, who dissented on other issues, said at 656:

“Nor if he was sane could it be argued either that the cause of his death was the accident in December 1940, or that his death was the result of that accident.

If after accident and injury a person in full possession of his senses commits suicide, the suicide is an intervening act and constitutes cause of death without further search.”

20 In Haber v Walker the jury had expressly found that death by suicide was not reasonably foreseeable. By majority the Full Court of the Supreme Court of Victoria found that that was not a material finding as under the Victorian version of Lord Campbell’s Act, reasonable foreseeability was not a requirement. The sole issue was whether suicide was a consequence of the Defendant’s negligence. This Court expressly left open this issue in Versic v Conners [1969] 1 NSWR 481. The majority in Haber v Walker was doubted in Richters v Motor Tyres Service Pty Ltd supra. I agree with Heydon JA that it is not necessary to decide the issue in this case.

21 In Haber v Walker the jury had answered certain questions. It found that the death of the deceased was not an act of his own volition and that it was caused by the original accident. As noted, it also found that the death was not reasonably foreseeable. The majority in the Full Court held that these findings were not perverse. There was evidence on the basis of which this conclusion could reasonably be drawn.

22 The issue, Smith J said, was merely one of causation in the sense that “his death by suicide was a consequence of the Defendant’s negligence”. (357 line 52) His Honour noted that the test of causation is one of common sense (at 357-358). His Honour went on say at 358:

“In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to severe the causal connection. And, finally, the intervening occurrence if it is to be sufficient to severe the connection, must ordinarily be either -

(a) human action that is properly to be regarded as voluntary, or

Causation in the Law

23 In the case before the Court, his Honour said there was no issue of an intervening physical event, as distinct from human action. Accordingly there was no severance by reason of a “coincidence”. The relevant question was whether or not the deceased’s conduct could be categorised as a “voluntary act” (at 358 line 4). This, his Honour identified, in terms of whether or not “the actor should have exercised a free choice” (at 359 line 4). His Honour added:

“… if this choice has been made under substantial pressure created by the wrongful act, his conduct should not ordinarily be regarded as voluntary: see [Hart and Honoré] at pp38, 134.

Accordingly, the deceased’s act in hanging himself was not, for purposes of the relevant principle of causation, a ‘voluntary’ act, if the deceased, in consequence of the defendant’s negligence, was acting under the pressure of a mental disorder such as was described in the evidence at the trial and was not thereby prevented from exercising a free choice … .” (at 359 and see also 361 lines 1-6)

24 His Honour referred to the evidence and concluded that the suicide was not voluntary and that it “left unbroken the chain of causation between the defendant’s negligence and the death”.

25 In Richters v Motor Tyres Service Pty Ltd, the Supreme Court of Queensland held that it was not reasonably foreseeable that a woman injured in an accident in which her husband also died, would later commit suicide. Wanstall ACJ concluded at 23-24:

“… her case has not negatived that her death was an act of her own volition, so that a novus actus intervenes to break the chain of causation between the defendant’s original default and her death …”.

26 In Pallister v Waikato Hospital Board, the Court of Appeal, by majority, found that the hospital had not been negligent in trying to ensure the physical safety of a patient who had known suicidal tendencies. The majority found that there was no breach of a duty. Instructions for a close watch on the patient had been issued, but had not proved effective.

27 As emphasised by the High Court in March v Stramare, causation is not only a factual question, it is also a normative one. (See March v Stramare supra at 516 per Mason CJ, with whom Gaudron J agreed, at 524 per Deane J and at 524 per Toohey J.) (See also Chappel v Hart (1998) 195 CLR 232 at [26].) Considerations of policy are relevant and value judgments are required to determine matters of causation for the purpose of attributing liability in negligence. Such considerations, in my opinion, lead to the conclusion that deliberate self-infliction of harm should generally be seen to break the causal link.

28 In the course of explaining the decision in M’Kew v Holland 1970 SC (HL) 20, Mason CJ said in March v Stramare at 517:

“… in truth the decision proceeded from the conclusion that the plaintiff’s injury was the consequence of his independent and unreasonable action.”

29 To similar effect are the observations of McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428:

The

Oropesa

30 Actions involving the deliberate infliction of self harm should generally be regarded as “independent and unreasonable” and as a break in the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility. Issues of foreseeability may arise. It may be appropriate to recognise the deliberate infliction of self-harm as a separate kind of damage - distinct from both personal injury and psychiatric harm - for foreseeability purposes. That does not need to be decided in the present case.

31 Lord Hope of Craighead sets out a number of circumstances in which a duty of care extended to the prevention of deliberate acts of self-harm in Reeves supra at 380C-E:

Yachuk v Oliver Blais Co Ltd

Hughes v Lord Advocate

32 The relevant circumstance in the present case is the last: Was the risk of self-harm the result of the failure to provide a safe system of work?

Causation in Fact

33 The issue of causation is determinative for both Mrs Boxsell’s personal cause of action and the cause of action under the Compensation to Relatives Act. As Heydon JA states, this is to be determined in accordance with the principles set out in March v Stramare supra especially at 515-519 per Mason CJ.

34 As McHugh J said in Chappel v Hart supra at [26]:

March

35 The legal proceedings concerned the injury which the deceased suffered by reason of the employer’s default. That does not mean that the employer is responsible for whatever happens in court. The employer would not necessarily be liable if the employee suffered different harm whilst in a hospital which he attended for treatment of his original injury. This is not a case in which the events in court can be treated as some form of exacerbation of the original injury. (Cf Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 529-530.)

36 Neither the trial judge’s findings, nor the evidence in the case, suggest that the cross-examination operated in a manner which can be described as reactivating the psychiatric injury caused by the accident. The trial judge expressly found that the depression was “effectively cured in early March some six weeks before the proceedings took place” (at [56]). He further found “Mr Boxsell’s suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life” (at [57]).

37 The evidence, and the trial judge’s findings of primary fact, emphasise aspects of the cross-examination which caused the deceased to become concerned about matters, being aspects that are of a qualitatively different character from those about which he was concerned originally as the result of the debilitating effects of the accident.

38 In the episode leading to the final act of suicide, the deceased did not refer to his future work prospects and the detrimental effect on his self-image as a fully participating member of the workforce. Rather, he was concerned to a predominant extent with the process of litigation in which he believed he had been, and could be, made to appear to be a fool or a person avoiding work. The following are the pertinent findings of fact by the trial judge:

· The Deceased told his daughter, “I thought I was an idiot. I couldn’t understand what I was reading”. (at [50])

· In a conversation with a friend: “The Deceased said that he was made out to be a liar and felt he was made a fool of in front of everyone present and was asked many confusing questions and was petrified that he would make a mistake and be branded a liar and a fraud”. (at [51])

· His Honour referred to Mrs Boxsell’s description of the events leading up to the court application and said, “at times her husband appeared to be confused with the questioning because of his illiteracy. She said he seemed to dwell on the court and kept going back to his paperwork so that he would have a better understanding of things as if he was obsessed with it”. (at [52])

· After telling his wife that he was “going to drop the case”, that evening at home the Deceased expressed a fear of failing and looking like an idiot. (at [52])

· The day before the suicide, Mrs Boxsell found the Deceased “totally absorbed in the paperwork and concerned about a mistake and the need to ring his solicitor. Later that night in bed he told his wife that there was a bug in the roof”. (at [53])

· On the day of the suicide: “the Deceased expressed a fear to his wife and others that he would look like a liar and a cheat and was too slow answering questions and would get confused and lose the case and wanted to give it up.” (at [54])

· In relation to the earlier conversation which the deceased had with his friend, his Honour said that, “he whispered secretly throughout most of the conversation which was about the RTA and their solicitors, investigators and the Deceased’s bitterness towards the barrister that cross examined him on the Court appearance”. (at [51])

· In that conversation that the Deceased, “referred to a suspicion that he had been followed and photographed” and when another person arrived the Deceased, “expressed the view that he was the person following him around and that he would kill him as soon as he saw him across the road from his house”. (at [51])

39 These are all matters which relate directly to what occurred during the course of the legal proceedings. They involve qualitatively different matters from those which were involved in the diagnosed Adjustment Disorder with Depression and Anxiety. The conduct after the legal proceedings cannot, in my opinion, be characterised as a revival of the feelings of inadequacy and concern about his future job prospects which arose as a result of the back injury and which had been successfully treated.

40 The conduct after the legal proceedings concerned a different manifestation of what may well have been the same fundamental personal inadequacy that had caused the original reaction. However, as such a different manifestation, it was not a response which ought be regarded as causally related to the original injury. The causal chain was, in my opinion, broken.

41 HEYDON JA:

An employer breaches its duty to take reasonable care to prevent the occurrence of a reasonably foreseeable risk of back injury to an employee. The employee fails to sue within the limitation period, but later applies, successfully, for an extension of time within which to commence the proceedings. The hearing of that application causes the employee stress. He develops depression and commits suicide eight days later. Is the employer liable to the employee’s widow when, in consequence of the employee’s suicide, the widow suffers
(a) nervous shock; and
(b) loss of the financial support which the employee would have

provided had he lived?

Procedural background

42 These questions arise in appeals brought against orders made by Coleman DCJ on 13 April 2000 that a widow (“the Plaintiff”) recover $101,895 damages from the Roads and Traffic Authority of NSW (“the Defendant”) for nervous shock and $176,933 damages from the Defendant under the Compensation to Relatives Act 1897. The trial judge also ordered that the Plaintiff recover $23,336 in damages from the Defendant as executrix of the estate of her husband (“the Deceased”).

43 In addition, the trial judge ordered a verdict in favour of the Defendant on its cross claim against AMP General Insurance Ltd (“the Insurer”) in the sum of $302,164, being the sum of the three amounts of damages ordered against the Defendant. The Insurer was the compulsory third party insurer of a motor vehicle involved in an injury to the Deceased sustained on 27 February 1993.

44 Both the Defendant and the Insurer have filed Notices of Appeal, but not all grounds were pressed. The trial judge’s finding that the Defendant negligently failed to discharge its obligation to provide a safe system of work and thereby caused the Deceased to suffer a back injury on 27 February 1993 was challenged in the Notices of Appeal, but both the Defendant and the Insurer abandoned the relevant grounds of appeal shortly after the appeals were called on for oral argument. A damages challenge was withdrawn. Further, the Insurer’s Notice of Appeal challenged findings of the trial judge that symptoms from which the Deceased suffered after 27 February 1993 were caused by his injury on that day rather than by degenerative change or by the general nature and conditions of the Deceased’s employment. Those challenges were also withdrawn. The effect of this was to leave no issue between the Defendant and the Insurer. They took up an identical posture against the Plaintiff on the appeal. Another consequence of these withdrawals is that there is no challenge to the trial judge’s award of $23,336 damages in favour of the Plaintiff as executrix.

45 The only remaining issues comprise a group of questions which during the appeals were characterised as foreseeability, causation and remoteness questions. Of necessity, their characterisation is variable and far from certain, and they are closely interrelated.

The facts

46 At the commencement of the melancholy series of events which began with the Deceased’s accident at work on 27 February 1993, he was 46. He had worked for the Defendant from 1967 for about five years. He then worked at a colliery as a shuttle car driver and as an installer of timber props. In 1976 he suffered a neck injury which caused him to have some time off and to receive weekly compensation payments until a redemption in 1991. In 1977 he began to work for the Defendant again as a patrolman on the Macquarie Pass, and he was employed in this capacity on 27 February 1993. Most of his duties included heavy manual work such as utilising jackhammers, setting up road closures (which included carrying sand bags weighing more than 10 kilograms) and digging trenches. Before 1993, apart from the neck injury in 1976, the Deceased had suffered a minor lower back strain in 1980, and he had undergone varicose vein surgery with full recovery of leg function.

47 In short, the Deceased was a healthy man who had been engaged in heavy work all his life. He was happy. He had been married for about 25 years, with children aged 23 and 19. His wife was a primary school teacher, specialising in teaching children with intelligence quotients of less than 75. There was oral evidence from the relieving principal of her current school that she was a very good teacher. She had a part-time practice as an alternative therapist. The Plaintiff first met the Deceased when she was 13 and married him when she was 18. She regarded her marriage as “Great. In a word, excellent.” She described the Deceased thus:

“Fun, a heck of a lot of fun; a great person to be with. We just had 30 years of a terrific time. That’s what it boiled down to and that’s what I miss.”

48 To some degree the happiness of the Deceased stemmed from his love of physical work. In cross-examination during the hearing of his application to extend the limitation period, he said of his work: “that was all I really asked for in this world mate. I mean I like to work.” A psychologist who saw him in the period 1997-1998 said that to “be a contributing member of a team … was an important and essential work value for him.” His primary pleasures away from work lay in physical activity, particularly working with his hands and carrying out physical tasks around his home. He had in fact built his house. In these activities he set for himself and was regarded as achieving a standard of perfection. The Plaintiff said: “Because he wasn’t so good with words he loved to express himself through his hands.” He had recently developed, from 1991 on, a new interest: he and his wife liked to go on long motoring holidays in the outback during school vacations. They planned to pursue this interest in the coming years and after they had retired.

49 If the Deceased’s life had a dark side, it is illustrated by the Plaintiff’s reference to the Deceased not being “so good with words”. That was a reference to the fact that the Deceased perceived himself as having been left illiterate after an unsuccessful and difficult schooling. He could in fact sign his name and write coherent prose. But his spelling and grammar were poor. He told one of his doctors that he had “great difficulty reading”. A psychologist said that the Deceased reported himself as being “functionally illiterate”. That psychologist considered that the Deceased “had very limited reading and writing abilities”. His wife said that his standard of reading and writing was the “absolute bare minimal”. His reading age was that of a 6 year old. He could read, but not “retain”, a Noddy book. The trial judge found that the Deceased “whilst not illiterate was extremely limited in his literacy and numeracy”.

50 On 27 February 1993 the Deceased was unloading rolls of plastic weighing about 30 kilograms from a truck. While unloading one of them he felt severe pain in his lumbar spine.

51 On 1 March 1993 the Deceased contacted his general practitioner, Dr Vesey, about pain in his lower back and numbness in his left leg. Dr Vesey diagnosed a lumbo-sacral disc bulge. Despite rest, exercise and physiotherapy, the Deceased did not fully recover. However, Dr Vesey considered him fit to resume full duties at work on 20 April 1993. His injury continued to give him problems at work, and he continued to experience pain. But he nonetheless continued to work. The Plaintiff said “his main theory” was that he did not “want to give up”. “He didn’t like to admit defeat to his injury”. He continued working until the pain became too much, at which point he would take long service leave in order to rest. He also attempted to manage his pain by reducing his working hours, declining overtime, and letting other crew members do the heavier work.

52 The Deceased’s pain increased after he twisted his spine on 9 March 1995 while climbing into the driver’s seat of a truck at work. He was treated with physiotherapy and a course of anti-inflammatory tablets. He gradually improved and Dr Vesey thought he was fit for full duties on 22 May 1995. On his return he experienced intermittent pain, and found his general condition a little bit worse.

53 In about mid May 1997 the Deceased began to experience greater pain. It became more severe in early August. It prevented him from going to work on 8 August. A holiday began on 9 August. It was to be a driving holiday, but he was forced to return on 12 August. He saw Dr Vesey on 13 August. He was referred to a specialist neurosurgeon, Dr Stening. Dr Vesey saw him on 31 October 1997 and formed the view that because of the Deceased’s pain in his back and left leg he was unfit to resume full duties and might never be fit for full duties. He said he was “fit for restricted duties”, but no such duties were currently available.

54 Dr Stening, whom the Deceased saw on 25 August 1997 and 29 September 1997, formed the view that the Deceased would never be able to engage in heavy lifting or repetitive stooping, and the greatest improvement to be hoped for was improvement “to a point where he can carry out supervisory or clerical or desk duties”.

55 The Deceased did not in fact ever work again in the nine months he lived after 8 August 1997, and the opinions of his medical advisers support the view that that was because he was physically unfit to resume his previous duties. Over the years from 1993, he became less and less able to carry out the manual activities at home which had occupied much of his leisure time before 1993. The Plaintiff progressively took over those of his activities which were household responsibilities, such as servicing and washing motor vehicles, cleaning the swimming pool, cleaning the garden and washing clothes.

56 It seems that in late 1997 the Defendant informed the Deceased that he would be offered employment in an office taking telephone messages. He attempted to explain to the Defendant’s officers that that was not an available option because of his illiteracy. The information caused him to consult a psychologist, Mr Anning, on 4 December 1997, and on another six occasions up to 5 March 1998. He reported to Mr Anning his “overriding fear” that if he were made to undertake office work he would be “made to feel a fool”. He also said there was nothing meaningful he could do in that capacity and thus would not be a contributing member of a team. Mr Anning opined that these “work values” were very important to the Deceased. He also opined that if the Deceased were directed to do office work it would be psychologically damaging. He found the Deceased to be “distressed and agitated”. When Mr Anning first saw the Deceased, he identified “symptoms consistent with a diagnosis of Adjustment Disorder with Depression and Anxiety as a result of his workplace injury”. When Mr Anning saw him for the last time on 5 March 1998, he concluded that the Deceased “appeared to have recovered from the condition of Adjustment Disorder with Depression and Anxiety”. The trial judge found:

“I am satisfied that when last seen by Mr Anning the Deceased’s condition was almost if not completely resolved and that he made a complete recovery before the application for leave to proceed … under s 151D of the Workers Compensation Act 1987 [was heard] on 24 April 1998 about seven weeks after he had last consulted Mr Anning and I am satisfied that at that time he was not suffering from any psychological or psychiatric condition as a result of any workplace injuries.”

57 The application heard on 24 April 1998 to which the trial judge referred was made in the following circumstances. In late August or early September 1997, after the Defendant’s workers’ compensation insurer was refusing, or threatening to refuse, to pay the Deceased compensation after he ceased work, the Deceased consulted a solicitor on the telephone. He was told he might have a claim for damages at common law. On 14 October 1997 the Deceased was interviewed by the solicitor. On 15 December 1997 the Deceased swore an affidavit filed in support of an application to extend the limitation period for a possible action in relation to the 1993 injury: that limitation period had expired in February 1996. The application was heard by a District Court judge on 24 April 1998. The judge delivered an ex tempore judgment giving reasons for granting the application. The judge did, however, order the Deceased to pay the Defendant’s costs of the application.

58 However, despite the Deceased’s success in the application, the events of that day were calamitous for him and for the Plaintiff.

59 Even before that day, the Deceased had repeatedly expressed concern to his daughter. He frequently said to her: “I am worried about the statement. I don’t want anyone to think I am a cheat or a liar.”

60 Proceedings commenced shortly before 11.40am on 24 April 1998. The judge drew attention to a sentence in paragraph 4 of the Deceased’s affidavit which he said “doesn’t make very much sense”. The sentence, which described the condition of the truck just before the Deceased suffered injury while unloading the roll of plastic on 27 February 1993, was:

“There was a lot of loose bulk material on the tray of the truck and the gate of plastic over the top of the tail gate.”

61 At 11.40am the Deceased began to give evidence in chief. It began as follows:

“Q. Sir, I think you have a copy of your affidavit with you?

A. Yes I do.

Q. Can I ask you to open the affidavit at paragraph 4?

A. Yep.

Q. If you don’t mind, I’ll just read to you a couple of sentences from it?

A. Uh-huh.

Q. ‘I was required to load about four large and heavy rolls of plastic approximately two metres long and 200 millimetres in diameter. There were three men in the crew at this stage. The ganger was in the office, and the other crew member was loading material into the utility.’?

A. Yeah.

Q. ‘At Albion Park I was required to remove the rolls of plastic from the five ton truck and carry them into the store’, you see where I’m reading from sir?

A. Yes.

Q. The next sentence, ‘There was a lot of loose bulk material on the tray of the truck and the gate of plastic over the top of the tailgate’ --

A. I’ve lost you.

Q. I’m reading from about the middle of paragraph 4, the sentence that starts ‘there was a lot’. I’m reading from that sentence?

A. Yeah, I just couldn’t find it, sorry.

Q. Would you read that sentence to yourself sir?

A. Yeah.

Q. You’ll see sir the sentence doesn’t make a whole lot of sense?

A. No it doesn’t, no.

Q. Can you explain what you were getting at there?

A. Well, yeah, what it is, was lifting the rolls of plastic out of the truck, over the tailgate.

Q. So the tray of the truck had sides on it I take it?

A. Yes, yeah.

Q. And the tailgate was how high?

A. About a foot, which is 300 millimetres.

Q. So I take it you’re leaning in over the back of the tailgate?

A. Yeah, just leaning in, yeah.”

62 After the balance of the examination in chief, which was interrupted by a few objections, some successful, the cross-examination by counsel for the Defendant began. The trial judge described it as “forceful and searching”. Counsel for the Plaintiff in the course of the appeal responded to a suggestion from counsel for the Insurer “that this was cross-examination which had nothing untoward about it” in the following way. He said that at some points the cross-examination became “a hectoring-type cross-examination which didn’t permit the [Deceased] to answer. He was cut off on a number of occasions when he was in the middle of answering questions.” He also mentioned the following parts of the cross-examination.

63 The Deceased was asked whether the solicitor whom he saw in 1997 had acted for him when he was injured in 1976. He denied it. The denial was rightly said to be correct, and the suggestion in the question was rightly said to be incorrect.

64 In due course the correct solicitors consulted in 1976 were identified. The transcript then records the following:

“Q. You consulted them in relation to an injury that you got at work where you had some disability flowing from that, didn’t you?

A. Yeah.

Q. Now you knew [the Coal Mines Insurance] weren’t paying you out of the goodness of their heart, didn’t you? …

A. I suppose not.”

65 After giving evidence about which doctors he saw in 1976, the Deceased was questioned as follows:

“Q. And after that did you have a family doctor?

A. Yes.

Q. Who was that?

A. Dr Fuller.

Q. And where’s he?

A. He’s deceased.

Q. I take it he didn’t decease whilst you were attending him?

A. No.

Q. He didn’t die while you were seeing him?

A. No, no.”

66 The cross-examiner referred to the fact that the Deceased was in receipt of weekly compensation payments as a result of the injury to his neck in 1976 until 1991. The transcript records:

“Q. Yet you were willing to take money from that coal company until 1991 even though you had no problems with your neck, is that right?

A. You’ve got problems but it’s not major problems. That’s what I’m trying to say. You’re not --

Q. Well you had major problems with your back in February of 1993 didn’t you? You weren’t able to work isn’t that right?

A. Yes I was off work that’s right.”

67 Attention was then directed to the following passage:

“Q. And you know that people go to other courts than compensation courts for money for injuries they get don’t you?

A. Yeah I suppose they do, there’s --

Q. Well it’s something you’ve known for many years isn’t that right? Isn’t that right Mr Boxsell?

A. Yeah I suppose it is but --

Q. And you know that people go to other courts, like the Supreme Court and the District Court for payments for injuries that they get at work don’t you?

A. Yeah compensation injuries yes.

Q. Well for injuries that they get at work, you know that they go to the Supreme Court and the District Court don’t you?

A. Well I don’t know whether they’re, they’re the courts but I know that they go to court for that type of thing.

Q. Well you read it in the papers don’t you, someone gets so much damages for an injury that they got at work?

A. Compensation.

Q. But not in the compensation court, in the Supreme Court and the District Court, you know that don’t you?

A. No I can’t really follow, I really can’t follow what you mean. A court’s a court.

Q. What about - you read the Illawarra Mercury don’t you?

A. Very rarely I’m afraid because --

Q. And you’re a member of the union are you not?

A. Yes I am a member of the union yeah.

Q. And the union puts out newspapers and magazines don’t they?

A. Yeah.

Q. Telling you - informing you about what other workers get in different courts don’t they?

A. No. Can I say something here?

Q. Well you’ll get a chance to later on. If you could just answer my questions?

A. All right, okay.

Q. Are you telling me that your union newspaper doesn’t put out what workers get for their injuries in the Supreme Court or the District Court?

A. I don’t know what they’ve got in their paper. I very rarely read the paper. I don’t know whether I even get a union paper to tell you the honest truth.”

68 Parts of the submissions of counsel for the Defendant on 24 April 1998 have some significance in the chain of events. He submitted:

“One really must question whether or not he’s being a witness of truth when he says he doesn’t know about people getting claims for money, injuries - sorry, for injuries in money in other courts because he doesn’t read any newspapers put out by his union, when quite clearly he hotfoots it down there as soon as it looks like there is a bit of coin hanging around from an industrial deafness claim.”

“One, that I understand it was put that your Honour would be entitled to question whether the plaintiff was a witness of truth in respect to his not knowing of claims in other courts and I think the quote was that he hotfoots it down there when there’s a bit of coin hanging around for industrial deafness case.

Your Honour, at no stage was it put to the plaintiff in cross examination that he was lying about anything that he said. In my submission it’s not open for my friend to make a submission adverse to the plaintiff’s credit.”

69 The Plaintiff sat next to the Deceased during the hearing on Friday 24 April 1998. She said “He was very upset”. Her evidence continues:

“Q. What did he say to you?

A. He said to me, ‘I’m such a fool’. He said, ‘He made me look like a fool’, meaning [counsel for the Defendant].

Q. Did he give you any details about what he thought may have ---

A. Yes. He couldn’t recall dates, times. [Counsel for the Defendant] kept going from one case to another case to another case and that just confused Bruce. He can’t work that fast. He didn’t have that mental capability.”

70 On the evening of 24 April the Deceased said to his daughter: “I was so scared …. I thought I was an idiot. I couldn’t understand what I was reading”.

71 The Plaintiff described the Deceased’s reaction in the ensuing week as follows:

“Q. How did he appear to you over the next few days?

A. I thought he was all right on the Saturday and Sunday but then by the Monday he was really fidgeting, he wouldn’t sit down, getting up, having another cigarette, making another cup of coffee and this was just this continual rollover. I got home from work on the Monday afternoon, he started saying, ‘it has got to stop. We can’t do it’, and we talked a little bit and I thought it was just nerves but then by the Thursday he actually came to me at school and said, ‘We have got to stop the case’, and I asked him why and he said, ‘because I can’t remember everything and I’m frightened I’m going to say something wrong’. I asked him, ‘What do you mean?’ and he said, ‘What if I make a mistake and give the wrong date?’ and that’s what he became obsessed with because [counsel for the Defendant] kept putting him from one date to another date. So Bruce felt that he had to try and memorise these dates and instances and when he had gone to physio or whatever else, the treatment that he had. He said to me, ‘We are going to fail. I can’t remember them’. He wanted to put the house into my name so that we couldn’t lose the house. He went into big panic mode.

HIS HONOUR: Q. What was the fear that he had of losing the house? What was that based on?

A. Really - I don’t know, I think - we talked about it.

Q. Did you talk to him about his fear of losing the house?

A. Yes we did.

Q. What was his fear based on?

A. He said that if we lose the case because he couldn’t remember everything then we would have to pay all the bills and that means we have to sell the house and that’s what he was worried about. Does that help?

HIS HONOUR: Q. I don’t know, but go on. He expressed to you the fear that he might have to sell the house to get the money to look after himself in the future?

A. No. To pay the bills for the court case if we failed. It wasn’t to do with our bills.

WILLIAMS: Q. Did he speak to you about the suggestion that was made in the case that he was not telling the truth?

A. Yes, that hurt him really bad and there was another inference - I think there was some inference to or words made that said that Bruce was quite ready to hot foot it down to the court house to make another claim. Bruce has a really guilt complex on people going to court for compensation. He doesn’t like the idea of being in compensation claims because you are made to feel what is called compo thing. You get branded with that and he is quite embarrassed with that. He doesn’t like. That was something that was said and the fact that it was inferred again that he wasn’t telling the truth and that wasn’t the case.

Q. Had you ever seen any evidence of Bruce being dishonest?

A. Hang on. He lied to me one time, ‘I’ve got to go down and get a paper’, and he came box of chocolates he gave me.”

72 His daughter said that on Monday 27 April she saw the Deceased in the street. He “had a strange, blank expression on his face”. She went to her parents’ house to check on him. He would not talk to her, save to say that he was all right.

73 The Plaintiff said that in the week after the hearing the Deceased could not sleep and moved restlessly around the house all day and all night. A birthday party for a friend of the Deceased’s daughter was held, but the Deceased sat away from the group. They spoke to him, and he said “I’m OK. I’m just pretty down. I’m upset.”

74 On Wednesday 29 April the Deceased’s daughter noticed that he would only speak in hushed tones and had a “strange plain” expression on his face.

75 During the week after the hearing the Plaintiff said that the Deceased:

“seemed to dwell on the court. He wanted to know all the details and wanted everything to be perfect. That’s why he kept going back to his paperwork so that he would have a better understanding of things. He looked and studied this paperwork every day since that date. It was as if he became obsessed with it.”

76 In a statement the Plaintiff described the Deceased’s visit to the school where the Plaintiff taught on Thursday 30 April, at about 11.05am, as follows.

“He said, ‘I am going to have to drop the case, they are going to crucify me because I think I’ve got things wrong and I’ve sworn on the bible.’

I said, ‘But you’re not. You are honest. You have not lied. You have just got it muddled up.’

He said, ‘What if I had hurt my back before 1993, I might have?’

I said, ‘Yeah, you might have hurt a muscle or pulled one but your discs were popped in 1993. That’s a new injury so your statement is correct.’

I do not recall him hurting his back before that incident in 1993.

I followed him out to his car and we talked some more. It was about the same thing.

He said, ‘I was planning to kill myself today. I even wrote you all a note.’ I didn’t say anything and he gave me a note. I recognised it to be his writing. He even signed it.

I said, ‘But you’re not, are you? You’re not.’ While I was reading the note he said, ‘No. I’m not. I’ve thought about it and I’d hurt too many people and it might cause ‘Niecey’ (meaning our daughter Denise) to have a miscarriage.’

He said, ‘Can I have the note?’

I said, ‘Why?’

He said, ‘Cause I just got to have it back.’ I gave him back the note. We talked a little bit more and we were both crying. About half an hour had passed and he said, ‘I’m alright now.’

I said, ‘Are you sure?’

He said, ‘Yeah. I’m right. I’ll be right now.’

I said, ‘Okay, I’ll see you this arvo.’ Bruce then drove off. I went back to work.”

77 When the Plaintiff returned home that afternoon, the Deceased said he was “right”. He also said: “I was just having a bad time. I am scared of failing and looking like an idiot.”

78 The trial judge found that at this stage the Deceased “was in a severe state of depression which was progressing”.

79 On Friday 1 May the Deceased visited a work friend, Mr Andreini, who had been part of the Deceased’s gang on 27 February 1993 and who had also had a claim against the Defendant. Mr Andreini perceived him to be extremely agitated and very tired. He constantly looked over his shoulders. His eyes were bloodshot and glazed. He was shaking. He spoke only in whispers. He expressed bitterness about the Defendant, its solicitors and its investigators. He said that in court he was made out to be a liar, felt he was being made a fool of in front of everyone present, and said he was asked many confusing questions. He was petrified he would make a mistake and be branded a liar and a fraud. He said he had been followed on numerous occasions and that the Defendant had been taking photographs of himself and his family. He expressed fear that the Defendant would allege that he and Mr Andreini were conspiring to make a claim. He became very agitated and began asking about the dates and times of events that occurred in relation to his and Mr Andreini’s claims. The Deceased’s son arrived but the Deceased “shied away and became more secretive” until the son left. A police officer then arrived and the Deceased threatened to shoot him. Mr Andreini regarded the Deceased as “a shadow of a man I once knew”. The trial judge said that this evidence “confirms the severity of the Deceased’s depressive state after the hearing”.

80 When the Plaintiff returned home on Friday 1 May, she found the Deceased:

“sitting at the kitchen table totally absorbed with his paperwork. He said, ‘I’ve got to ring them. [I] think I’ve made a mistake. The plastic came from a job down south and not from Bellambi.’ I said, ‘Alright, ring’. [The Deceased] then rang the solicitors and had to wait for them to call back.”

81 That night, while the Plaintiff and the Deceased were in bed, the Deceased whispered: “They’re listening. There’s a bug in the roof.” The Plaintiff tried to reassure the Deceased, but they did not go to sleep until 3.30am.

82 On Saturday 2 May 1998, in the middle of the morning, the Deceased told the Plaintiff:

“I want to give up the case because I’m afraid of looking like a liar and a cheat. I’m too slow answering questions. I get confused. I will lose the case. I want to put this house in your name so they can’t take it away from you.”

83 At about 8.30pm the Deceased’s daughter rang and he said that he would visit her the next day.

84 Later that evening, while the Deceased was at home with his son and daughter-in-law, he and the Plaintiff were watching a film on television. His wife described events as follows:

“During the movie Bruce constantly got up and down out of the lounge chair. He walked out the back and front of the house to have a smoke. He went to the front room a couple of times. During one of these occasions I heard the large family safe open. I didn’t think much about it because he said, ‘I’ve got to fix up a few things and put them away’. I assumed that he was going to put away the money that my son gave him earlier or just doing what he had done over the past week. That is he had been going over paper work from his court matter again and again. It was like an obsession.

About 10.30pm Bruce got up and walked towards the front of the house. I thought he was going out to have a smoke. I heard the latch on the gun cabinet. I had knitting and a blanket on my lap. I got them off. I heard the front door close. I went to follow him but when I got to the kitchen table I heard a gun shot.”

85 The effect of the Deceased’s death on the Plaintiff has been severe. It has caused her mental trauma. It is unnecessary to set out the details. The sum awarded in relation to the Plaintiff’s nervous shock claim is no doubt a quite imperfect means of remedying her loss, but the Defendant and the Insurer did not contend that, so far as the law can remedy that loss, it was an excessive response. Nor did they contend that the sum awarded in relation to the Plaintiff’s claim under the Compensation to Relatives Act 1897 was excessive.

86 So far as the above account describes factual matters, it has been based on evidence which was not the subject of cross-examination or was otherwise incontrovertible, and on unchallenged findings of the trial judge in his admirably detailed and careful reasons for judgment. The controversy in the appeals centred largely not on the trial judge’s primary factual conclusions, but on certain ultimate factual conclusions and on his legal reasoning.

The trial judge’s reasoning

87 The trial judge made the following findings.

88 First, the Defendant was in breach of its duty to provide a safe system of work on 27 February 1993, thereby causing an injury to the Deceased’s lower back.

89 Secondly, the injury to the Deceased on that day caused the pain and disability he suffered thereafter, and they were not caused by degenerative changes or aggravation arising out of the nature and condition of his employment.

90 Thirdly, the trial judge accepted the conclusions arrived at by Dr Gertler, a consultant psychiatrist:

“IMPRESSIONS

There is no evidence that Mr Boxsell suffered from depression or other psychiatric problems prior to his appearance in court on 24 April 1998. That appearance caused him considerable distress. He appears to have been confused by the court proceedings and to have left the court feeling that he had been made out to be a fool, inadequate and a liar.

Given that Mr Boxsell appears to have been a very straightforward, honest and hardworking man who was attempting to come to terms with his chronic disability and the fact that he was no longer able to work, he was apparently angered and humiliated by the suggestion that he had stopped work only to make financial gains through the compensation process.

In my opinion, there is a causative link between Mr Boxsell’s injury sustained in 1993 and subsequent assertions made against his character during the hearing on 24 April 1998 which ultimately led to his severe depression and suicide on 2 May 1998.’

91 Fourthly, as already indicated, the trial judge found that the Deceased had ceased to suffer from depression before the hearing on 24 April 1998. He went further:

“there is no evidence of depression or psychiatric illness or disturbance immediately prior to the appearance in Court on 24 April 1998 and I am satisfied that was the fact and I am also satisfied that the Deceased’s pre-existing psychological or psychiatric problems which resulted in the depression which caused the referral to Mr Anning was effectively cured in early March about six weeks before the proceedings took place.”

92 Fifthly, the trial judge found:

“[The Deceased’s] suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life.”

93 Sixthly, the trial judge found (and this finding was challenged) that before 24 April 1998 “the Defendant was aware that the Deceased was susceptible to psychological injury”.

94 Seventhly, the trial judge said:

“The necessity to make the application for leave to proceed out of time was not the product of the tortiously based pain and discomfort under which he was labouring …. [The] evidence is clear that it was the psychological or psychiatric injury induced by the application which led to the suicide and not any physical pain, disability or restriction which existed concurrently with and independently of the psychiatric or psychological disability.”

95 Eighthly, the trial judge said:

“The events between which a causal link must be established are the act of negligence and the psychiatric illness which arose as a result of the Deceased’s cross examination …. [It] seems to me clear that the depression which the Deceased suffered after the events of the application and its sequel was caused by the accident and the injuries which the Deceased suffered therein.”

96 Ninthly, the trial judge said:

“the 1993 incident was a legal cause of the depression and consequent suicide because it materially contributed to the onset and continuation of the severe depression. Psychiatric illness of some kind was reasonably foreseeable as a consequence of the physical injuries which the Deceased suffered and it does not matter that the severe depression and suicide was of rare occurrence.”

97 Tenthly, the trial judge said:

perhaps

Kavanagh v Akhtar

98 Eleventhly, the trial judge said:

“Suicide caused by severe depression arising out of cross examination during an application for leave to extend time was in my view damage of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act of the employer.”

99 Twelfthly, the trial judge found that under s 77 of the Motor Accidents Act 1988, damages for nervous shock were recoverable by the Plaintiff because she was the “spouse” of the Deceased who suffered injury in the “motor accident” of 27 February 1993 and “as a consequence” suffered a “demonstrable psychological or psychiatric injury”. The trial judge applied the reasoning set out above in concluding that the suicide in 1998 was caused by the Defendant’s negligent conduct in 1993.

“I am not of the view that the suicide was so far removed in time nor am I of the view that the circumstances surrounding the cross examination broke the chain of causation and for the reasons which I expressed above I am of the view that there was a causal relationship between the accident and the suicide.”

100 Thirteenthly, in considering s 3(1) of the Compensation to Relatives Act 1897, the trial judge found that the Deceased’s death was “caused” by the Defendant’s negligence.

The contentions of the Defendant and the Insurer on the appeals

101 The Defendant and the Insurer made certain concessions. Perhaps they were inevitable; but whether they were inevitable or not, they had the advantage of enabling the issues to be narrowed and to be more sharply focussed. They accepted that

(a) psychiatric injury was a reasonably foreseeable result of the 27 February 1993 back injury;

(b) “but for” that injury there would have been no hearing, no post-hearing depression, and no suicide; and

102 Though to some extent the arguments of the Insurer were bound up with arguments advanced in relation to grounds now abandoned, and though the Defendant and the Insurer advanced arguments in separate written and oral submissions, it is convenient to amalgamate the surviving arguments as follows.

103 First, the Defendant and the Insurer challenged the trial judge’s finding that the Defendant was aware that the Deceased was susceptible to psychological injury.

104 Secondly, it was submitted that the question was whether damage of the same type or kind which the Deceased ultimately suffered was reasonably foreseeable on 27 February 1993: Kavanagh v Akhtar (1998) 45 NSWLR 588 at 600E-F. It was submitted that the trial judge posed a wrong test in asking whether it was foreseeable that the Deceased might be ignorant of his rights and thus have to apply to extend the time for initiating proceedings. It was conceded that it was foreseeable that psychiatric injury could occur as a result of physical injury, but not that it could occur as a result of the Deceased’s reaction to cross-examination. It was said that the trial judge asked too broad a question in asking whether psychiatric injury was a foreseeable consequence of the physical injury. The correct question, given that the physical injury by itself did not cause any psychiatric injury still operating by 24 April 1998, was whether psychiatric injury caused by litigation arising in consequence of the physical injury was foreseeable. A risk of psychiatric injury caused by litigation was no more than far-fetched or fanciful, and hence was not reasonably foreseeable. It was not far-fetched or fanciful that a litigant might be disappointed by the result of proceedings. It was far-fetched or fanciful to foresee that a successful litigant would develop a depressive condition by reason of a litigant’s subjective assessment of how that litigant had been treated and how that litigant had performed. That response was a wholly irrational response. It was not the response of a person of normal fortitude.

105 Thirdly, it was submitted that the cause of the psychiatric or psychological condition which led the Deceased to commit suicide was not the negligently caused physical injury of 27 February 1993, but his reaction to the 24 April 1998 hearing. The Deceased had no psychological or psychiatric condition before 24 April 1998; he developed one after that date; the only cause can have been the events at the hearing, not the injury of 27 February 1993; indeed the trial judge found that the “suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life”; hence the claim for injury flowing from the suicide was not causatively linked to the 27 February 1993 physical injury. Further, it was submitted that the trial judge erred in concluding that the actions of the Defendant’s counsel during cross-examination at the 24 April 1998 hearing had the same effect in law as the actions of the plaintiff’s overly protective parents in Nader v Urban Transport Authority of New South Wales (1985) 2 NSWLR 501. It was submitted that in that case the physical accident had materially contributed to the onset of the psychiatric condition (at 530F-531F). Here the sole cause was the Deceased’s reaction to questions and submissions at the hearing. On the “commonsense” approach of March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, it was submitted that no causal link existed between the depression and the injury. Though the suicide would not have occurred but for the physical injury, the “but for” test was no longer determinative. It was submitted: “This is not a case where it was submitted that the chain of causation had been broken by some new intervening event: it was, and remains, the [Defendant’s] contention that no causal link ever existed between the physical injury and the suicide.” It was also submitted that the relationship between the injury and the post-hearing depression was too indirect. It was pointed out that the trial judge did not give reasons for his conclusion that the post-hearing depression was caused by the 27 February 1993 injury. All he did was quote a passage from Mason P’s reasons for judgment in Kavanagh v Akhtar (1998) 45 NSWLR 588 at 599 which contained the words “I see no reason why the causal link between the tort and the psychiatric injury was not established.” and then say:

“The events between which a causal link must be established are the act of negligence and the psychiatric illness which arose as a result of the Deceased’s cross examination. When I consider those matters in the context of the scope of the duty of care and when I apply a commonsense approach to the facts of this case I see no reason why the causal link between the tort and the psychiatric injury was not established. Applying the test of commonsense and experience as Mason P did in the extract quoted above, it seems to me clear that the depression which the Deceased suffered after the events of the application and its sequel was caused by the accident and the injuries which the Deceased suffered therein.”

106 Fourthly, it was submitted that the psychiatric or psychological condition which led to the Deceased’s suicide was too remote.

"At the initial interview the Deceased was distressed and agitated but did not display overt pain behaviour and did not appear to be excessively pain focused or somatic in his presentation. He was frustrated and angry regarding the length of time the RTA had taken to accept his claim and was also of the opinion that he had upgraded to full duties far too quickly following the 1995 incident. Mr Anning assessed him as being a very active hands on type of man who prided himself on his ability to work with his hands but who was illiterate and whose notion of self worth was very much aligned to his physical abilities. As he was unable to do the things he previously did Mr Anning observed that he was feeling quite useless and worthless. He had an overriding fear of returning to the RTA on restricted duties because the only duties that he could conceive to be available was work in the office and he was frightened about being placed in this situation as it would further reinforce his inadequacies - something which his wife confirmed in her oral evidence. Mr Anning diagnosed Adjustment Disorder with Depression and Anxiety as a result of work place injuries."

173 Mr Anning's report, dated 25 February 1999, described the deceased in these terms:-

[sic]

174 The deceased had seven sessions of disability counselling with Mr Anning from 4 December 1997 to 5 March 1998. At the end of that period, Mr Anning considered that his patient, who at the first interview had presented in quite a distressed and agitated manner, appeared to have recovered from his Adjustment Disorder.

175 On 24 April 1998, only seven weeks after his last treatment by Mr Anning, the deceased was cross-examined during his application for leave to proceed under s 151D of the Workers Compensation Act, 1987. Following the cross-examination, he again suffered a depressive illness and psychiatric disorder which led shortly thereafter to his suicide.

176 As a result of the depression and psychiatric illness which developed, the deceased committed suicide by shooting himself at his home on 2 May 1998. The deceased's wife, Mrs Margaret Boxsell, heard her husband remove a gun from the gun locker. She followed him. She heard the shot and saw his body. Not surprisingly, she herself suffered a severe psychological reaction and disorder.

177 A question in this appeal is whether the deceased's suicide was an event which was reasonably foreseeable by the RTA as a consequence or possible consequence of the work accident in February 1993. It is not suggested, of course, that the suicide would have been in anybody's actual contemplation at the time. Save in special circumstances which do not exist in the present case, one does not contemplate suicide as an event likely to flow from injury. Suicide is a shocking self-destructive act and was, until 1983, a crime in New South Wales.

178 However, it has been recognised that a work injury may cause depression and that depression may cause suicide.

179 In Holdlen Pty Ltd v Walsh [2000] NSWCA 87, a widow succeeded in her claim for benefits under the Workers Compensation Act, 1987 where a work injury had been followed by unsuccessful treatment, separation from the spouse, depression and suicide. Giles JA, with whom Meagher and Heydon JJA agreed, reviewed the authorities in the United Kingdom dealing with the issue whether, in a case where suicide on the part of the worker had eventuated, compensation could be awarded for "personal injury by accident" or "where death results from the injury", terms which were used in the Workmen's Compensation Act, 1906 (UK) and the Workmen's Compensation Act, 1925 (UK). The cases in the United Kingdom had enquired into the issue of the sanity of the worker, taking the view that suicide, an intentional act on the part of the worker, would break the chain of causation between the injury and the death, unless the worker's mental state was that of insanity. In Holdlen, Giles JA rejected that view. His Honour said:-

"34 There may be some difficulties, despite the hallowed past of the approach, in inquiring into insanity as going to causation in a suicide case.

March v E & M H Stramare Pty Ltd

Medlin v State Government Insurance Commission

'The necessary causation between a defendant's negligence and the termination of a plaintiff's employment, in the sense that the termination of the employment is the product of an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff's own decision to retire prematurely. If, for example, it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.'

36 If this be so, I do not see why, if the facts be appropriate, death by suicide could not be found to have resulted from work-related injury without a finding that the worker was insane.

(Director of Public Prosecutions for Northern Ireland v Lynch

Universe Tankships Inc of Monrovia v International Transport Workers Federation

180 I respectfully agree with the views expressed by his Honour, including the point made by his Honour that cases such as Medlin accept that an intentional act on the part of an injured person can, in an appropriate case, be regarded as part of the chain of causation. In the present case, the issue does not arise in any dramatic form for the deceased's depressive state developed into a psychotic state. It would be wrong to regard his action of suicide, whilst in that state, as an intentional act which broke the chain of causation.

181 Turning to the cases which have dealt with damages for negligence, I would respectfully adopt the remarks of Handley and Beazley JJA in Commonwealth of Australia v McLean (1996) 41 NSWLR 389. Their Honours there discussed the issues which arise when an injured person has developed a stress disorder or other psychiatric illness. At p 403, their Honours said:-

Chapman v Hearse

Mt Isa Mines Ltd v Pusey

Jaensch v Coffey

Page v Smith

Aboushadi v CIC Insurance Ltd

American Airlines Inc v Georgeopoulos

R v Chan-Fook

182 At p 406, their Honours further said:-

Richards v Victoria

Smith v Leech Brain & Co Ltd

Overseas Tankship (UK) Ltd v Mort's Dock & Engineering Co Ltd (The 'Wagon Mound' (No 1))

Hughes v Lord Advocate

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The 'Wagon Mound' (No 2))

183 A dramatic illustration of the implication of these principles is seen in Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 where the Court of Appeal, Samuels and McHugh JJA, Mahoney JA dissenting, held that, where a 10 year old boy had suffered only minor physical injuries but had subsequently developed symptoms of the Ganser Syndrome, a pseudo dementia, to which the overprotective and inappropriate conduct of the child's parents had contributed, the boy was entitled to damages for the dementia which he suffered. It was held that the accident was a legal cause of the Ganser Syndrome because it materially contributed to the onset and continuation of the condition.

184 The approach taken in these cases was followed in Kavanagh v Akhtar (1998) 45 NSWLR 588. Mason P, with whom Priestley and Handley JJA agreed, cited and approved the remarks of Handley and Beazley JJA in McLean and the approach taken in Nader. At p 602, Mason P said:-

perhaps

Hughes

Nader

Commonwealth v McLean

185 Those were cases where the psychiatric illness was suffered by the injured person. Damages have also been awarded to persons who suffered an illness as a result of observing the consequences of injury or death. In Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, an engineer was working next to electricians who had not been properly instructed by their employer as to a safe system of work. The engineer saw one of the electricians severely burnt and aided him and assisted in carrying him to an ambulance. Several days later, the electrician died. About four weeks later, the engineer developed a serious mental disturbance of the schizophrenic type. Barwick CJ, McTiernan, Menzies, Windeyer and Walsh JJ held that the negligent employer was liable for the injury suffered by the engineer. Their Honours held that there was a duty of care to persons who may suffer shock on seeing an accident and that it was reasonably foreseeable that an accident, of the kind that occurred, might have consequences for somebody, of the kind that it had on the engineer.

186 This approach was applied and extended in Jaensch v Coffey (1984) 155 CLR 549. In that case, a motorcyclist suffered serious injury in a collision with a vehicle which was driven negligently. The motorcyclist's wife, who was not at the scene of the accident, saw him in hospital and she was told that he was "pretty bad". The next morning, she was told that her husband was in intensive care and, shortly thereafter, she was told that he had "had a change for the worse" and she was asked to come to the hospital as quickly as possible. Although her husband survived, the wife suffered nervous shock as a result of what she had seen and been told. It was held that, in some cases, the impact of events will occur after the accident. At pp 567-568, Brennan J said:-

Hambrook v Stokes Bros

Dulieu v White & Sons

Hambrook v Stokes Bros

Benson v Lee

187 In Jaensch v Coffey, Deane J, who favoured the application of a test of "proximity", expressed the test, in relation to a nervous shock claim, in this way, at pp 606-607:-

Donoghue v Stevenson

Dorset Yacht Co. Case

The Dredge 'Willemstad' Case

188 In Morgan v Tame (2000) 49 NSWLR 21, the cases were again fully considered. I need not deal with the judgment in detail for the facts were far apart from those which we are considering. Spigelman CJ, Mason P and Handley JA enunciated the view that, in nervous shock cases, issues of foreseeability must be examined in the context of "a person of normal fortitude". There is no question that, in the present case, both the deceased and Mrs Boxsell were persons of normal fortitude. Spigelman CJ, Mason P and Handley JA also held that, on the present state of the authorities, a sudden assault to the senses was an essential requirement for recovery of damages in a case of psychiatric injury. At p 31, Spigelman CJ cited, with approval, the view of McHugh JA in Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 509:-

"… The illness must be the result of a shock caused by the perception of a phenomenon for which the defendant is responsible."

189 A period of five years passed between the accident and the suicide. The case is thus different from cases such as Mount Isa, where the plaintiff who suffered the shock was present at the time of the accident, or Jaensch, where the wife suffered shock whilst her injured husband was in a serious condition in hospital shortly after the accident. However, the passage of such time has not been thought to preclude findings of causation. In Holdlen, the injury had occurred on 14 November 1994 and the suicide on 14 or 15 October 1997. In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, a worker had suffered a back injury in 1981 and had had prolonged pain, anxiety and depression and died from a myocardial infarction in 1992. Whilst I accept that the lapse of time is a matter which must be taken into account, it seems to me that, in the present case, the lapse was not of such a period as to lead to the conclusion that the depressive illness or the suicide or Mrs Boxsell's psychiatric response to the suicide was not reasonably foreseeable. Clearly, in the field of psychiatric illness and nervous shock, there are sound reasons of policy why courts should impose tight restrictions upon claims made for damages. However, the restrictions applied in Morgan and in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 are not relevant to the present case.

190 The present case is unusual for it took some time for events to work themselves out. Moreover, the claim for nervous shock was dependent on the establishment that the deceased's psychiatric illness and suicide were sequelae of his injury at work. Many years ago, such a claim would not have been recognised. See Chester v Council of the Municipality of Waverley (1939) 62 CLR 1. These days, however, the approach to psychiatric illness has changed. As Mason P said in Morgan, at p 49, "Depressive illness is widespread and it appears to be on the increase". As its existence and causes become better recognised, so the demand to compensate those whose illness has its origin in negligence will increase.

191 In the present case, although the chain of causation was a lengthy one, it seems to me that it was reasonably foreseeable that the RTA's failure to provide a safe system of work could lead to the deceased's back injury, that that injury could lead to a depressive illness, that the deceased might suicide as a result of the depression and that Mrs Boxsell might suffer a severe psychological reaction from the shock of the suicide. If that is what happened, the elements of duty of care, breach thereof and causation, would have been satisfied. So, also, would the element of proximity, for Mrs Boxsell was the wife of the injured worker, she heard the gunshot by which the deceased effected the suicide and she saw its immediate aftermath.

192 However, the crucial question is a question of causation, whether the depression and the suicide which followed the cross-examination flowed causally from the deceased's injury at work or whether the cross-examination was a novus actus interveniens, an intervening factor which broke the chain of causation.

193 Dr Gertler, a consultant psychiatrist, on 3 June 1999 reported the following, inter alia, which the trial Judge accepted:-

"In the days following his court appearance, Mr Boxsell appears to have become increasingly agitated and obsessed with the court appearance. He told his wife as well as a close friend that he felt humiliated, and had been made out to be a liar and a fool. He could not be reassured by his family or close friends and became suicidal. He also appears to have developed a psychotic state as part of a major depression. He had delusions of worthlessness and also paranoid delusions about the insurance company. He spoke of his suicidal thoughts to his wife, but was apparently sufficiently reassured at the time to postpone a suicide attempt. On 2 May 1998, some eight days after his court appearance, he did commit suicide by gunshot wound.

…

There is no evidence that Mr Boxsell suffered from depression or other psychiatric problems prior to his appearance in court on 24 April 1998. That appearance caused him considerable distress. He appears to have been confused by the court proceedings and to have left the court feeling that he had been made out to be a fool, inadequate and a liar.

Given that Mr Boxsell appears to have been a very straightforward, honest and hardworking man who was attempting to come to terms with his chronic disability and the fact that he was no longer able to work, he was apparently angered and humiliated by the suggestion that he had stopped work only to make financial gains through the compensation process.

In my opinion, there is a causative link between Mr Boxsell's injury sustained in 1993 and subsequent assertions made against his character during the hearing on 24 April 1998 which ultimately led to his severe depression and suicide on 2 May 1998."

194 It was arguable before the trial Judge that the cross-examination in the application for leave undid all the benefit which had been achieved by Mr Anning's counselling and that it reactivated and enhanced the Adjustment Disorder from which the deceased had previously suffered, that the injury which the deceased suffered in February 1993 was a substantial cause both of the depression which the deceased suffered prior to his cross-examination and the depression and psychiatric illness which he suffered after the cross-examination and that the depression was occasioned by the deceased's pain, his inability to work and the fact that, in the context of his functional illiteracy, the deceased felt worthless, felt humiliated and felt that he was being or would be made to look a fool. It was arguable that it was because of the back injury that the deceased lost pride in himself.

195 However, while this was arguable and may even have been the basis of Dr Gertler's view that there was a causative link between Mr Boxsell's injury and his suicide, Dr Gertler did not express a clear view to that effect.

196 The findings of the trial Judge are inconsistent with the argument I have mentioned. His Honour held:-

"56 Neither the Defendant or the Second Cross Defendant disputed that the death of Mr Boxsell was caused by the stress he underwent as a result of cross examination in proceedings for leave to commence his action outside the statutory limitation period. The Second Cross Defendant adopted the Defendant's submissions in this regard and the Defendant made no submission contrary to the Plaintiff's submission that Mr Boxsell suicided as a result of depression but submitted that it was due to stress as a result of the leave proceedings. The Defendant and Second Cross Defendant submitted that there is no evidence of depression or psychiatric illness or disturbance immediately prior to the appearance in Court on 24 April 1998 and I am satisfied that was the fact and I am also satisfied that the Deceased's pre-existing psychological or psychiatric problems which resulted in the depression which caused the referral to Mr Anning was effectively cured in early March about six weeks before the proceedings took place.

197 It was, no doubt, because his Honour did not see a continuing chain of factual causation between the back injury, the depression and the suicide, that his Honour expressed his ultimate finding as follows:-

"In my view the 1993 incident was a legal cause of the depression and consequent suicide because it materially contributed to the onset and continuation of the severe depression."

"legal cause"

198 In the absence of any express or other clear evidence that the cross-examination reactivated the Adjustment Disorder from which the deceased suffered following his back injury, I am of the view that I should accept the findings of fact made by the trial Judge on this point. His Honour had the advantage of presiding over the trial and hearing the witnesses. Although I have some doubts about his Honour's findings, I am not satisfied that his Honour erred.

199 Speaking of intervening acts, Mason CJ said in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 517:-

"The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct."

"As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things."

200 As the depression and the suicide were not a continuation of the depression which the deceased suffered following his back injury, it seems to me that the cross-examination which brought about the suicide was a novus actus interveniens. The deceased's depression and psychosis after the cross-examination flowed, not from his back injury, but from his pursuit of compensation. The negligence of the RTA in failing to provide a safe system of work did not generate the risk that the deceased would be cross-examined as he was or that he would respond to the cross-examination by suicide. Nor did the events occur in the ordinary course of things.

201 In the result, therefore, the claims pursued before the trial Judge must fail as there was a break in the chain of causation.

202 I agree with the orders proposed by Heydon JA.

**********

Citations

AMP v RTA & Anor [2001] NSWCA 186

Most Recent Citation

Cases Citing This Decision

10

Hunter Area Health Service v Presland [2005] NSWCA 33

Patrick Stevedores (No 1) Pty Limited v Vaughan [2002] NSWCA 275

Heydon v NRMA Ltd (No 2) [2001] NSWCA 445

Cases Cited

17

Statutory Material Cited

8

Mount Isa Mines Ltd v Pusey [1970] HCA 60

Holdlen Pty Ltd v Walsh [2000] NSWCA 87

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CITATION:	AMP v RTA & Anor; RTA v AMP & Anor [2001] NSWCA 186
FILE NUMBER(S):	CA 40319/00; 40399/00
HEARING DATE(S):	16/05/01
JUDGMENT DATE:	2 August 2001
PARTIES :	AMP General Insurance Ltd (Appellant CA 40319/00; First Respondent CA 40399/00) Roads & Traffic Authority of NSW (Appellant CA 40399/00); First Respondent CA 40319/00) Margaret Boxsell (Second Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Heydon JA at 41; Davies AJA at 170

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2859/98
LOWER COURT JUDICIAL OFFICER :	Coleman DCJ

COUNSEL:	J D Hislop QC/K Andrews (AMP General Insurance Limited) J A McIntyre SC (Roads & Traffic Authority of NSW) M L Williams SC/Ms P M McDonald (Second Respondent)
SOLICITORS:	Gillis Delaney Brown (AMP General Insurance Limited) Hunt & Hunt (Roads & Traffic Authority of NSW) Carroll & O'Dea (Second Respondent)
CATCHWORDS:	Torts - Negligence - Liability - Foreseeability - Causation - Remoteness - Whether employer liable to deceased employee’s widow for damage caused to her by employee’s suicide - Employer breached duty of care to employee causing back injury - Employee applied for extension of limitation period in order to bring action for damages for back injury - Employee suffered stress from cross-examination in the hearing of application - Employee developed depression and committed suicide shortly after hearing - D
LEGISLATION CITED:	Compensation to Relatives Act 1897 Fatal Accidents Act 1846 Fatal Accidents Act 1976 Law Reform (Miscellaneous Provisions) Act 1934 Motor Accidents Act 1988 Workers Compensation Act 1987 Workmen's Compensation Act 1906 (UK) Workmen's Compensation Act 1925 (UK)
CASES CITED:	See attached
DECISION:	See paragraphs 168 and 169