BDJ v Digital Diagnostic Imaging Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BDJ v Digital Diagnostic Imaging Pty Ltd & Ors [2022] NSWPIC 648
APPLICANT:	BDJ
FIRST RESPONDENT:	Digital Diagnostic Imaging Pty Ltd
SECOND RESPONDENT:	BEL
THIRD RESPONDENT:	BFE
senior Member:	Elizabeth Beilby
DATE OF DECISION:	22 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Matter involving suicide; determination in relation to injury and consideration of section 14(3) of the Workers Compensation Act 1987; Held – finding in favour of the applicant.
determinations made:	1. The deceased worker, BCR died on 17 October 2018, as a result of injuries sustained during the course of his employment with the respondent. 2. BDJ, BEL and BFE were all dependent for support upon the deceased as at the date of death. 3. The deceased had no other persons dependent upon him. 4. The deceased’s death was not caused by an intentional self-inflicted injury. 5. The first respondent is liable for the payment of lump sum compensation and funeral expenses. 6. The lump sum of $798,100 payable pursuant to s 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with s 9 of the Workers Compensation Act 1987 as follows: (a) $598,100 to BDJ; (b) $100,000 to BEL. and (c) $100,000 to BFE. 7. The first respondent is to pay lump sum compensation pursuant to s 85(1)(a) of the Workers Compensation Act 1987 to the dependants as follows: (a) $598,100 to BDJ; (b) $100,000 to BEL, and (c) $100,000 to BFE. 8. The first respondent is to pay the applicant $13,389 in respect of funeral expenses. 9. This decision is not suitable for publication. If publication is deemed necessary, all parties should be deidentified.

STATEMENT OF REASONS

BACKGROUND

BCR (the deceased) commenced employment with Digital diagnostic Imaging Pty Ltd (first respondent) in 2010. He worked in the IT department and was involved with maintaining back-ups and hardware. These being important duties providing for shared storage of data.
A restructure of the IT department took place in June 2018. This affected the functions and teams within the department.
BCR felt concern in relation to his workload and the repeated failure of the back-up systems. BDJ (the applicant) has provided clear evidence as to the psychological deterioration of her husband from August 2018.
BCR was admitted to Northside Clinic on 4 October 2018 where he remained as an inpatient until 17 October 2018.
On 17 October 2018 BCR had left the clinic and was involved in a fatal accident with a bus on the Pacific Highway. The available evidence suggests that he deliberately came in contact with the bus.
BDJ, together with her twin daughters BEL (second respondent) and Caitlyn (third respondent), seek payment of the lump sum benefit payable pursuant to s 25(1)(a) of Workers Compensation Act 1987 (1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer an injury pursuant to s 4 of the 1987 Act?
(b) Was employment the main contributing factor to a psychological injury pursuant to s 4B of the 1987 Act?
(c) What is the application of s 14(3) of the 1987 Act?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application and attached documents;
(b)    first respondent’s Reply with attachments;
(c)    second and third respondent’s Reply. and
(d)    Application to Admit Late Documents received on 1 April 2022, 14 April 2022, 13 July 2022, 20 July 2022, 29 July 2022.
Written submissions were received from all parties.

Oral evidence

The parties did not seek leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

BDJ

BDJ has prepared a statement dated 21 February 2022 in relation to both dependency and also observations she made of her husband’s condition in the lead-up to his death.[1]
[1] Application page 2.
BDJ explains that her husband was employed by Idameneo, a member of the Primary Health Care Limited Group in December 2010.
BCR initially worked in the IT department on a full-time basis up until the time of his death. BDJ understood that her husband’s duties included, among other things, maintaining data back-ups and hardware which provided for shared storage of the employer’s operations.
BDJ observed her husband often worked long and irregular hours fixing issues which included systems outages, taking calls from overseas IT providers at all hours in the night and the morning.
BCR had an active social life. He managed over 45 football teams and attended social events and parties with friends. He also took an active interest in his twin-daughters’ lives attending their sporting events and driving them to social events and participating in family dinners and activities.
BDJ in her statement explains that she understood from her husband that his employer had restructured its operations over the period of about late 2017 to about June 2018.
BDJ observed that approximately from June 2018 she would have discussions with her husband about his work. This included observations that there was a lot of change happening at work and responsibility was increasing and the equipment was not good enough for back-ups and kept failing. BCR expressed that he was experiencing stress with the increased workload and uncertainty.
At the end of July 2018 after a holiday in Europe, BCR expressed that he was worried that he was going to return to work and what he was expected to do.
At that time, as the time for BCR to return to work came closer, BDJ observed that he became frustrated and cranky with his daughters and easily agitated. He continued to talk about how uncertain his work situation was and how he would manage the new workload when he returned.
After returning to work, BDJ observed her husband was having difficulty sleeping and appeared to be anxious and depressed about his work situation.
In about early August 2018 BDJ had a discussion with her husband and was concerned that there were so many equipment issues and they were going to blame him for the failures of the equipment and that he could not keep up with all the new work that he was being asked to perform. He also explained that although he had complained to his manager about the issues, he was also experiencing panic attacks and not sleeping and suggested that he needed to consult a doctor.
From about August 2018 the deceased commenced seeing doctors to assist him with his anxiety and depression.
In late August 2018, BDJ outlines a further discussion she had with her husband when he once again felt that there were not enough resources to do what was expected of him at work. He felt that he had been expected to know systems but there had been no training or handover. The deceased explained that he had raised these issues with his manager and was trying to do his best but felt hopeless.
BDJ says in her statement that throughout the remainder of August 2018 she observed her husband’s anxiety and depression get worse and worse and he became to withdraw from family and social interactions.
The deceased sought treatment from Dr Turner, psychiatrist, and also took some sick leave in August and September 2018.
The deceased attempted to return to work but found it difficult and discussed this with his wife. BDJ says that her husband explained to her that nothing had changed at work and there were no additional resources to assist him in completing the work and he could not really see any way out of the work situation.
BDJ observed her husband’s symptoms continued to worsen throughout September 2018 and he appeared to be increasingly disengaged with his daughters and herself and friends. He would often speak of his fears that included work failures that would be blamed upon him and he felt he would lose his job. He was also concerned that information would be lost in the system and this would affect treatment for patients.
In late September the deceased told his wife that it had been recommended that he be admitted to Northside Clinic for treatment of his depression and anxiety symptoms. The deceased was then admitted to Northside Clinic on or about 4 October 2018 as an inpatient.
BCR received treatment at the Clinic until 17 October 2018. On that day, BDJ was driving to the Clinic to meet with her husband and his treating doctors to discuss his planned discharge on 18 October 2018. He was then to commence treatment as an outpatient as opposed to an inpatient.
BDJ and the deceased had been texting each other during the day and she was looking forward to having him back home.
Tragically, when BDJ arrived at the Clinic, she was informed that her husband had been involved in an accident. She understood that he had walked in front of a bus.
The effect of her husband’s death has been devastating to BDJ and to her two daughters as they have struggled to cope with the loss and ensuing complex grief.
BDJ also provides clear evidence as to her dependency and also that of her twin daughters (who are now both young adults).

Alexandra McCosker

Alexandra McCosker has provided a statement dated 29 July 2021.[2] Ms McCosker was employed as a general manager at the respondent employer. Ms McCosker understood that the deceased’s position title when he was employed was as Senior Systems Administrator in the IT department. Ms McCosker was not aware of any work performance concerns with the deceased and certainly there was nothing in his personnel file evidencing any performance concerns.
[2] Application page 409.
A restructure in the IT department took effect in June 2018 and affected all staff in that department which at that time had about 50 people employed there. Some staff were made redundant however the deceased was not. Ms McCosker understood it was a reorganisation of functions and teams within the IT department. The deceased had reported to David Lewis, head of IT prior to the reorganisation and post-reorganisation was to report to Chris Jackson.
Ms McCosker says that there was no evidence to suggest that the deceased was demoted, promoted or transferred in that restructure.

David Lewis

When Mr Lewis commenced employment with the respondent in November 2018, the deceased was on long-term sick leave due to throat cancer. He returned to working in the office in early 2018.
The deceased reported to Mr Lewis until June 2018. He understood that the deceased referred to himself as the team leader and was unofficially acting as team leader however Mr Lewis was looking to place a manager in the group.
Mr Lewis understood that there was actually no formal substantive position as team leader and he looked for any documentation referring to the deceased as a team leader and there were no acting arrangements in place.
In mid-2018 Mr Lewis employed Mr Chris Jackson as an IT infrastructure manager. The deceased was to report to Mr Jackson when Mr Jackson started.
Mr Lewis clearly states in his statement dated 1 August 2021[3] that the deceased was not demoted however when Mr Jackson commenced his role the deceased ceased reporting to Mr Lewis.
[3] Application page 414.
Mr Lewis is unable to comment whether the deceased’s workload increased post the restructure as he had a reduced role as Mr Jackson had taken over as line manager.

Chris Jackson

Chris Jackson has prepared a statement dated 29 July 2021.[4] Mr Jackson explains that he commenced employment with the respondent in June 2018 and ceased in July 2019 as a technology and services manager in the infrastructure team.
[4] Application page 420.
Mr Jackson was employed to manage 37 engineers and assistants in networking (all IT infrastructure) across New South Wales, Victoria and Queensland.
Mr Jackson explains that prior to the restructure the deceased was responsible for the data centres and shared services. Post-restructure he was responsible for all systems across pathology, medical centres, imaging and corporate.
Mr Jackson agreed that the deceased’s workload increased post-restructure but he does not know to what extent. He could not comment on whether the deceased worked more than his contracted hours or not.
Mr Jackson explains there was no intention to demote the deceased or any suggestion that he would lose his job. There were also no issues regarding his performance and he was not under any performance or management programs.
Mr Jackson observed that the deceased was struggling mentally. Mr Jackson suggested that the deceased was under a lot of stress from work which he told him about in September 2018. There had been several conversations between the deceased and Mr Jackson especially in relation to the back-up systems. The deceased said he could not cope with the workload and then from approximately September 2018 Mr Jackson commenced taking work away from him.
It was not until September 2018 that Mr Jackson became aware there were any issues with the back-up system. He later found out the back-ups were failing for 12 months prior on most days.

David Ranasinghe

Mr Ranasinghe has prepared a statement dated 23 July 2021.[5] Mr Ranasinghe was employed by the respondent company as a chief technology officer.
[5] Application page 62.
Mr Ranasinghe explained that he first met the deceased in October 2017 however the deceased never reported to him directly or indirectly and they never worked together and their roles did not interact.
Mr Ranasinghe was involved in the restructure and explains that from November 2017 to January 2018 all roles were assessed, and roles were mapped against the capabilities that we wanted to create for the new organisation. After the restructure, Mr Ranasinghe had the view that the deceased was not demoted however his reporting line had changed.

Hugh Devaux

Mr Devaux was an infrastructure manager for the respondent company. He has prepared a statement dated 29 July 2021.[6] Mr Devaux was employed as a senior systems administrator and he first reported to BCR Macklin and then later at stage to a Mr Canter.
[6] Application page 69.
Mr Devaux understood that the deceased was a team leader and his duties were to maintain the IT infrastructures teams’ cohesion, to maintain storage and back-up and other duties. He was recognised by the staff as a team leader.
After the restructure, the deceased’s position’s title reverted to senior systems administrator.
In terms of workload, Mr Devaux understands that the deceased’s workload had increased in the restructure in terms of additional reporting with additional pressure to increase success rate of back-ups to early mid 2018. To this day, Mr Devaux understands that the BCR’s former role is now split between two team members as opposed to one.

Warren Suen

Mr Suen commenced employment with the respondent in 2010. He was in the corporate infrastructure team and reported to Chris Jackson.
In relation to his employment relationship with Mr Jackson, Mr Suen did not have a good relationship with him. Mr Suen explains he was the reason why he resigned as Mr Jackson had unrealistic expectations as to what could be achieved in the time given.
Mr Suen recalled that the deceased said that he was taking on a lot of additional responsibilities due to him acting as infrastructure team leader and felt that BCR was stressed but was able to maintain his composure and demeanour.
On the basis of observations at team meetings, Mr Suen formed the observation that Mr Jackson did not value the deceased’s input and did not appear to listen to what was being said.

Lauren Kalogiannis

Ms Kalogiannis prepared a statement dated 23 July 2021.[7] Ms Kalogiannis commenced employment with the respondent on 4 June 2012 as a return-to-work coordinator for NSW and the ACT.
[7] Application page 82.
Ms Kalogiannis cannot provide any assistance in relation to individual observations of the deceased or an understanding of his employment. Her evidence is really in relation to management of leave and assisting the deceased with returning to work.

Vehnaz Kalapese

Mr Kalapese has provided a statement dated 1 August 2021.[8] Mr Kalapese commenced employment with the respondent in October 2017 as head of IT delivering projects.
[8] Reply page 188
Mr Kalapese did not work with the deceased and they did not interact from a work perspective.

Chris Jackson

There is no statement from Chris Jackson, though I do have the benefit of some of the email and text communications between BCR and Mr Jackson[9].
[9] First respondents Reply pages 219 to 238.
On 1 August 2018, the deceased sent an email to Mr Jackson in relation to his current condition. The email is as follows:
“Hi Chris, just an update after the doctor visit.
As I guessed, my anxiety disorder has risen its ugly head again after 11 years. Hopefully just due to drinking every night on holidays, jetlag etc, but the doctor has started me on some medication that worked last time. Got 3 to 4 hours sleep last night, so hopefully that will improve sooner rather than later. I’m not thinking all that clearly, very forgetful etc but will see how it goes.”
On 2 August 2018 BCR wrote and email;
“Just went to the Dr, she gave me a referral to a Pychologist for the anxiety) I’ll get an appointment asap). ,,,,,,, Are you OPK if I WFH toady and tomorrow? Reason being, as mention, work gets my mind off things. I have the whole backup mess to clean up, and please throw more tasks at me…”
On 6 August 2018 the deceased sent an email to Chris Jackson in the following terms:
“Sorry to bombard you, just drowning a bit in all these tasks.”
In an email dated 9 August 2018, BCR observed that the backups were regularly below 90%. He felt that more assistance was required and observed that “we have been down this road before, with little or no improvement.”
On 15 August 2018, BCR wrote that he was wrestling with the lack of backup resources and he had to constantly free up space, though there had been some success lately.
In an email dated 17 August 2018, the deceased wrote to Mr Jackson that he had just checked the back-ups and he urgently needed help from the team on back-ups.
In an email dated 19 August 2018 the deceased wrote to Mr Jackson explaining that back-ups had now hit a critical point due to the full back-up that weekend. He explained the back-ups were failing en masse and he now realised the back-ups are the cause of his anxiety and not sleeping. He tried to fix them this weekend but hadn’t slept again so he was in a vicious cycle where he can’t think due to the lack of sleep. He also explained that he felt he could not do this alone and thought the back-up should be done by the team and not one person. BCR also commented that he was not sure he could attend work if he didn’t sleep and wouldn’t be able to sleep if unless the backups were OK.

Medical evidence

Dr Turner

Dr Beverley Turner is a treating psychiatrist who saw BCR on at least seven occasions before his admission to Northside Clinic. She has prepared a report which outlines her treatment of BCR.[10]
[10] Application page 342.
Dr Turner outlines the history that was provided by Mr and BDJ when they sought treatment. Dr Turner reports that BCR
“experienced a recent onset of extreme anxiety and depression after returning to work following a family holiday. This was in the context of work-related stress in the context of being informed that another employee was going to be leaving the position on 29 September and BCR felt overwhelmed, when he returned from holiday, given that he would be needing to perform the complex duties single-handed. He explained that there was an overwhelming amount of technical issues to be performed and it was too much to be managed by one person only. He was very agitated regarding the situation and felt that he was not supported or offered any backup from the company. He was also extremely fearful that if he did not perform he would ‘lose his job’”.

Dr Turner diagnosed BCR as having Anxiety and Depression, Anxiety with obsessive ruminations regarding the work situation and depression accompanying his belief that he was not going to manage. She described his sense of being overwhelmed by the tasks at work and the fear that he would be to be able to meet the requirements of his job which culminated in catastrophic ruminations about competence and employment.

Dr Canaris

Dr Canaris prepared a report dated 24 December 2021 at the request of the applicant’s solicitors.[11]
[11] Application page 334.
Dr Canaris took a history of increasing demands being placed upon BCR after the work restructure.
Dr Canaris notes that the BCR had been treated for throat cancer previously and that generally he had been psychologically asymptomatic.
Dr Canaris referred to the notes when BCR presented to Lower North Shore Community Health on 2 August 2018 and was reviewed on 3 August 2018. His presentation was summarised as follows:
“56 yr [year] old male presents with sudden onset insomnia, acutely appears to be precipitated by jetlag, and sudden cessation of alcohol on return from holiday where he was drinking daily, moderate amount but this occurs in the context of multiple cumulative stressors (workplace/financial/family interpersonal/cancer dx {diagnosis) and rx [treatment], and on a bg {background] of a longstanding symptoms [sic) of anxiety and depression with the biological vulnerability. I am unsure of the impact of recent use of medical marijuana and its impact on his current presentation”
At the time of his initial presentation to community mental health, he was assessed as follows: Nil suicidality, nil evidence of psychosis. Protectively in supportive relationship, help seeking, intelligent, and psychologically minded.”
Dr Canaris noted that BCR in subsequent telephone reviews referred to: ongoing issues and ongoing renovations at the house” and further that he:
“reports that he ruminates on worries about work, worries that he will love his job, that he is not food enough and may be made redundant”.
Dr Canaris referred to the treating notes from Dr Turner and observed that there was apparent initial improvement however on 2 October 2018 Dr Turner observed that BCR had “extreme anxiety with catastrophic and nihilistic ruminations, diurnal mood variation and EMW [early morning waking] as well as initial insomnia.”
Dr Canaris outlines that on admission to Northside Clinic, he was described as anxious and depressed with intermittent eye contact. He complained of insomnia and of feeling much worse in the morning (diurnal mood variation). He is quoted as saying that he "want[s] this to end" with the qualifier that he is talking about his "anxiety not life" I noted that the registrar's admission notes say that he "thinks of death" but this note is partially obscured by a post-it note. The registrar's notes also note poor concentration, poor appetite, weight loss, OCD symptoms were denied.
Dr Canaris diagnosed BCR’s condition as having a major depressive disorder with melancholic features and anxious distress (which was traditionally described as agitated depression).
Whilst Dr Canaris thought that BCR had experienced at least one proper episode of major depressive disorder, the available documentation suggested that his depression had been in stable remission for many years. Consequently, he opined that he would not anticipate a recurrence of depression in the absence of a significant stressor, of which Dr Canaris though the work stress was this stressor.
Dr Canaris concluded that the prominence of workplace concerns and his perception of an overwhelming workload and inability to meet workplace obligations indicated that they were the main contributing factor to the illness.
In relation to BCR’s psychological condition at the time of his death, he observed that his depression at the time of admission at Northside was indisputably severe. He referred to Dr Turners referral letter which spoke of “catastrophic ruminations about competence in employment” which she described elsewhere as “nihilistic”. Dr Canaris explained that whilst such thinking maybe not be characterised as psychotic or delusional, its intensity is nevertheless often overwhelming in character.
In relation to the apparent improvement in mood observed in BCR immediately prior to taking his life, Dr Canaris agreed with the opinion of Dr Large, such that he agreed that given BCR was an intelligent man he would have been likely to conceal his suicidal ideation and intention.
In conclusion, Dr Canaris was of the view that BCR’s will was overborne by his illness at the time of his suicide.
Dr Canaris has prepared a second report dated 21 July 2022.[12] At that time, Dr Canaris had been provided with the opinion of Dr Roberts.
[12] Late documents dated 29 July 2022, page 1.
Dr Canaris opinion was drawn to Dr Roberts opinion contained at page 3 of his report where he stated that major depression is defined as a primary disorder of mood characterised by periodicity and periodicity implies an inherent tendency to relapse regardless of circumstances.
Dr Canaris disagreed with Dr Roberts’ opinion in this regard and stated definitively that BCR’s previous episode of depression had been in 2007 when he was unemployed and diagnosed with throat cancer one year previously. He responded well to the antidepressant treatment and subsequently only had fleeting symptoms such as occasional anxiety or insomnia.
In relation to Dr Roberts’ understanding that there was no foundation for the fear that BCR may lose his employment and that BCR had sustained a relapse of a pre-existing depressive condition and then developed those concerns, Dr Canaris disagrees. BCR’s job simply was not at risk but he had to contend with a department restructure following which his workload increased considerably and he had to back-up data from an increased number of sources within the business. In particular, Dr Canaris refers to an email to his employer stating his concerns that the back-ups had hit a critical point dur to the full back-up that weekend and BCR stated that was the cause of the anxiety and not sleeping.
Dr Canaris refutes Dr Roberts’ opinion and says whilst it’s certainly possible that the emergence of BCR’s depression may have caused him to misperceive that he would lose his job, there was however a context of work-related stress and then feeling overwhelmed.
Dr Canaris describes BCR as a conscientious and perfectionistic man. Dr Canaris explains that people with obsessive compulsive personality traits can struggle to cope with what they consider an excessive workload with time and employment pressures. They are more vulnerable to anxiety and mood disorders. However, the onset of such disorders in Dr Canaris’ experience is typically in response to identifiable pressures. That is, the workplace difficulties voiced by BCR in relation to increased workload with additional reporting of pressures would readily qualify as both “substantial” and a “main” contributing factor to the onset of his depressive illness. Indeed, Dr Canaris opined that it was more probable than not that BCR would have remained reasonably well had he not been subject to the increased workload with additional reporting pressures.

Dr John Albert Roberts

Dr Roberts, psychiatrist prepared a report at the request of the respondent’s solicitors dated 26 July 2021.[13]
[13] Reply page 1.
Dr Roberts has the treating notes and relevant reports and makes comment in relation to BCR’s perception of reality. Dr Roberts says that if there is absence of psychosis then BCR’s perception of reality was intact and if there wasn’t any psychosis it should be assumed that BCR had the capacity to make sound judgements, namely that he is not suffering from a condition in which he is divorced from reality.
In relation to BCR’s perception of his financial situation not being as severe as he thought, Dr Roberts thinks that the failure to assess his financial situation correctly is consistent with nihilistic thinking and this is a potential indication of a more serious spectrum of depressive symptomatology. Indeed, Dr Roberts agreed with Professor Large’s opinion that BCR presented with a major depressive episode with a degree of severity of nihilistic thinking about his financial and occupational prospects that bordered on delusional intensity.
Dr Roberts shared the concern expressed by Dr Large that in retrospect, the treating team may have given less weigh to the possibility of nihilistic delusions than seemed appropriate.
In relation to the conclusion Professor Large expressed that BCR was very unwell and not in full possession of his judgement when he took his life, it was Dr Turner’s opinion that BCR was suffering from a major depressive disorder with delusional beliefs of a nihilistic nature and that on grounds of probability that his suicide arose as a result of the assumed nihilistic beliefs to which some reference has been made in the documentation.
After examining all the relevant treating material, it was Dr Roberts’ opinion that this was a complicated matter from a psychiatric viewpoint. He noted that BCR had a history of a pre-existing depression which can sometimes be associated with a decline in cognitive function. He was unable to state whether BCR had in fact developed a mental illness while undertaking work which resulted in him being put off work, or alternatively whether his condition was secondary to a work situation.
In that report, Dr Roberts found it difficult to definitively opine whether work was a contributing factor to the condition. Dr Roberts expressed concern in providing a definitive opinion without proper exploration of the underlying validity of financial pressures and work demands.
Dr Roberts also opined that a nihilistic delusional belief system may have given rise to the suicidal act.

Professor Large

Professor Large prepared a report for the coroner providing an opinion about the circumstances surrounding BCR’s death.
Professor Large carefully considered all the treating records including those from Northside Clinic. He observed the admission notes entered by the admitting registrar which included that BCR presented with anxiety and depression about the possibility of job loss, though was not considered to be suffering from psychosis.
Professor Large noted the assessment by Dr Miao who recorded that BCR had work issues and a throat cancer diagnosis last year. BCR felt that his financial situation was a “massive pressure.”
Professor Large opined that the deceased presented with a major depressive episode with a degree of severity with nihilistic thinking about his financial and occupational prospects that bordered on delusional intensity. He further commented that in retrospect, the treating team may have given less weight to the possibility of nihilistic delusions than seemed appropriate after his death however the medical treatment was appropriate for someone with a depressive illness with psychotic features. He described the medical investigations and psychiatric assessments together with the level of nursing and allied health care was within acceptable peer standards.
Professor Large commented that whilst it was possible to speculate as to the reasons BCR took his own life, it was very clear that he was very unwell and not in full possession of his judgement.
I will not turn to the substantive issues in dispute

Injury

The applicant’s claim is pursued pursuant to s 4b of the 1987 Act. Section 4(b) provides:
“(b) includes a ‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Pursuant to s 25(1) of the 1987 Act, compensation is payable where death results from the injury.
It was submitted on behalf of the first respondent that the death of BCR did not occur in the course of his employment.
The first respondent disputes that the events relied upon under the current claim are capable of being made out on the current evidence.
It is difficult in circumstances where the deceased, is not able to give evidence as to what his thoughts and observations were before his untimely death.
Fortunately we do have evidence from the deceased’s wife, who has provided evidence as to BCR’s cognitive decline together with reports of stress and overwork.
These observations made by his wife are not inconsistent with the evidence from the respondent such as from Mr Chris Jackson, who clearly understands BCR’s role both pre and post restructure and comments that BCR’s workload had indeed increased post restructure (although he was not able to assist with the extent of the increase).
Mr Jackson was also able to provide evidence that he observed BCR to be under a lot of stress and that there were conversations between them about stress in September 2018. Further, Mr Jackson reported that the deceased said he could not cope with the workload and was experiencing stress related to the back-up systems. This is entirely consistent with the conversations the deceased had with his wife in relation to stress arising from work.
Consistent with the deceased experiencing stress and anxiety arising from his workplace are a series of emails sent to Mr Jackson in relation to the deceased’s condition. Whilst it is true that the email on 1 August 2018 refers to anxiety disorder arising again, and refers to drinking every night on holidays, it does illustrate that the deceased experienced stress. It is well within the range of normal work life for the deceased to not clearly identify the stressor that he was experiencing in relation to work for fear of criticism.
Nevertheless, in subsequent emails it appears that BCR makes it clear to Mr Jackson about the stress that he was experiencing. Indeed on 6 August 2018 the email refers to “drowning” in the tasks that he is asked to perform.
Entirely consistent with the deceased experiencing stress and feeling overworked, on 19 August 2018 BCR wrote to Mr Jackson saying that the back-ups were failing en masse and he now realised the back-ups were the cause of his anxiety and not sleeping. He asked for assistance and suggested the back-up should be done by the team and not one person.
Mr Devaux also provides evidence as to BCR’s workload. He describes BCR’s workload had increased in the restructure in terms of additional reporting with additional pressure to increase success rate of back-ups. He observes the deceased’s role is now split between two team members as opposed to one. I infer this means that the tasks that were expected for one person to do were too much and it now requires two people to do.
We then have the report of the deceased’s treating psychiatrist, Dr Turner who also suggests that when the deceased presented to her on the first occasion he was stressed in relation to work issues.
These factors lead to a finding that the workload and fear of back-ups failing were not imaginary events. I am satisfied that there were ‘ real events’ and make such a finding if fact.
To my mind the claim that BCR was delusional to think that he was demoted and any case to say that somewhat misses the point. BCR felt extreme stress due to the excessive workload that he was experiencing. There is evidence of him attempting to seek help to remedy the workload however there seems to be no relief in respect of that request.
It is not unreasonable that BCR in those circumstances was concerned that he may be demoted or in fact lose his job. That would be a normal human emotion when feeling extreme stress in the environment that BCR worked in.
Dr Canaris clearly summarises what appears to be to my mind the environment that the deceased was working in when he states:
“His department underwent a restructure over several months. Once the restructure was finished BCR had increased demands placed upon him because he was obliged to back-up data from an increased number of sources within the business.”
Quite correctly, the dependants in this case refer to the decision of Attorney General’s Department v K.[14] In that decision Deputy President Roche clearly enunciated the principles that had to apply when it is alleged by an employer the events on which an applicant bases the allegations of injury are not “real”.
"...(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker's psyche because of a flawed perception of events because of a disordered mind (Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13);
(e) there is no requirement at law that the worker's perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Wiegand v ComcareAustralia [2002] FCA 1464 at [31]), and
(f) it is not necessary that the worker's reaction to the events must have been rational, reasonable and proportionate before compensation can be recovered."
[14] [2020] NSWWCCPD 76.
To my mind BCR’s condition can be characterised either as an aggravation or deterioration of a disease or the contraction of a new condition where in either case the work was the main contributing factor. Dr Turner’s opinion, in her report dated 14 July 2021 is particularly instructive given that she was the treating psychiatrist who had seen the deceased on more than one occasion and saw him as his condition was deteriorating. She observed:
"Mr Makin 's psychological condition presented on 28 August (sic) was directly related to his employment situation on return from family holiday. His sense of being overwhelmed by the task combined with the fear that he would not be able to meet the requirements culminated in his catastrophic ruminations about competence and employment." [15]
[15] Application page 343.
Dr Turner opined:
"The history from the Darrell and his wife BDJ indicated that the sudden onset of extreme anxiety accompanied by depression was in the context of returning to work after a family holiday. Prior to this there had been no symptomology. Thus, in response to the question, it was the main contributing factor to the aggravation, [etc], of his condition."
Consistent with the opinion of Dr Turner is that of Dr Canaris who opined that that workplace concerns and his perception of an overwhelming workload and an inability to meet workplace obligations indicated that these were one of the main contributing factors to his illness.
Dr Roberts opinion was that the death was caused by the natural progression of a pre-existing condition. The dependants are critical of Dr Roberts as he does not properly explain the sharp deterioration in BCR’s condition from August to October against the backdrop of the restructure and BCR’s views of workload and job loss.
Further, Dr Roberts is somewhat sceptical of the characteristics of employment and even goes so far as to describe them as imaginary. To my mind BCR’s complaints about overwork and stress and his perception that he was unable to perform the role given his resources were real and not imaginary at all. The emails to his supervisor indeed ground those fears as being not imaginary to him. This is evidently illustrated in the fact that there are now two people that perform BCR’s job and not one. If Dr Roberts had been apprised of that fact it may be that his opinion would be somewhat different.
In weighing up the evidence, I am persuaded by the opinion of Dr Turner who is treating psychiatrist. She is in the unique position of treating BCR and seeing him on many occasions. I give her opinion the greatest weight of all opinions.
Dr Turners opinion is also supported by the well-reasoned report of Dr Canaris, who to my mind is fully appraises of the workplace stress that BCR was experiencing in light of the demands placed upon him.

The chain of causation between work and the apparent suicide to my mind is unbroken. BCR experienced feeling of being overwhelmed by his employment. He sought treatment from Dr Turner who opined that the workplace tasks meant that he felt overwhelmed which culminated in his catastrophic ruminations about competence and employment. BCR was then thought to require inpatient treatment, an indication that he was quite psychologically unwell.
I therefore find in favour of the applicant that his employment was the main contributing factor to the aggravation and deterioration of a disease.

Section 14(3) of the 1987 Act

Section 14(3) of the 1987 Act provides that compensation is not payable in respect of a death to the worker caused by an intentional self-inflicted injury.
It should be observed that s 14(3) is a disentitling provision, and as such the onus falls on the first respondent to establish that the suicide was in fact an intentional act.[16]
[16] Bluescope Steel Limited v Pitaroska [2014] NSWCCPD 21.
I agree with the characterisation of what an intentional act must be as described in the written submissions of the third respondent.[17] Mr McManamey who appeared on behalf of the third respondent pointed out that for an act to be intentional it must be shown that the deceased performed the act having made a rational evaluation of the circumstances and made a decision uninfluenced by his psychological condition to run under the bus with the intention of ending his life. Mr McManamey then submitted that if the deceased was influenced by the psychological injury then he is incapable of forming the requisite intent.
[17] Paragraph 24.
Further, Mr McManamey submitted that there is only one factor which can be identified as causing the decision to commit suicide and that was the psychological condition that the deceased was suffering from. This, it was submitted, was clearly a case of an irrational decision to commit suicide and Mr McManamey quite helpfully compared the deceased’s situation to a person with a terminal illness who rationally decides to end their condition. This was not such as case and in the present dispute, the suicide was irrational.
The first respondent in its submissions submits that the chain of causation was broken by a deliberate act and as such there is disentitling behaviour pursuant to s 14(3) of the 1987 Act. The first respondent is critical of the opinion of Dr Canaris who has considered the question of the deceased’s will at the time of death. Dr Canaris’ conclusion was that it was more probable than not that BCR’s will was overborne by his illness at the time of his suicide. The complaint made by the first respondent is that the assessment appears to be simplistic and because the deceased was suffering from a psychological injury in the nature of a major depressive disorder and later committed suicide it must follow that his will was so “overborne” by the effects of the injury that the death by itself is not a self-inflicted act.
The first respondent advances the opinion of Dr Roberts who considered whether the deceased was in fact affected by a psychosis, and in the absence of such his perception of reality was intact. It is said that once it is established that the deceased was not psychotic before his death, it must be found that the suicide resulted from an intentional act.
I do not agree with this submission, as quite clearly explained by Professor Large, the absence of psychosis does not mean that BCR was of “clear mind”. Professor Large described BCR as very unwell and not in full possession of his judgement at the time of his death.
It is also said by the first respondent that the deceased carried with him a number of stressors many of which did not relate to his injury, for example the prospect of him committing suicide due to fears of employment, a concern which according to the treating material, does not establish that the death resulted from the claimed psychological injury or the effects therefrom.
I do not agree with such an interpretationIt is clear that BCR was overwhelmed by the tasks at hand. He clearly communicated the cause of his stress to his wife, his supervisor and also to Dr Turner. Any reference to loss of employment would be natural progression of not being able to perform the tasks at hand and being overwhelmed by it. I think such a reference has little moment in the dispute between the parties.
The meaning of the words “intentional self-inflicted injury” was considered by the Court of Appeal in Holdlen v Walsh, Giles JA reviewed the case law and commented:
“In Church v Dugdale & Adams Ltd Lord Hanworth MR described Marriott v Maltby Main Colliery Co Ltd as ‘the locus classicus for … the guidance to be found in these cases’, and continued (at 449) -
‘The upshot of all that is, that when one turns to see the facts of the case before the Court it is necessary to find not merely that there has been suicide, not merely at the time of the suicide that there was some depression and some delusions, but you must find that the condition of the man was such that the accident disabled him from exercising a judgment, and in that sense caused the accident. If you find merely that in consequence of the accident he is brooding in fear of poverty, or in distress, or in a mental condition which is consistent with the condition of a person not suffering from an accident, there you do not find and are not entitled to draw the inference that his mind has become unhinged so as to dethrone his power of volition, and in that sense there is no proof and no necessary connection between the accident and the suicide’.”[18]
His Honour continued:
“…Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result.
If s 14(3) on its proper construction can apply to death by suicide in a case such as the present, which as will be seen it is not necessary to decide, the same considerations arise. Although the section refers to intentional self-inflicted injury, the deliberate act of suicide may be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act.”[19]
[18] Holdlen v Walsh, [20].
[19] Holdlen v Walsh, [37]-[38].
To my mind the temporal connection between the deceased’s concerns and stress and his subsequent psychological injury arising from that and his death cannot be dismissed. Nor can the opinions of Professor Large, and well regarded independent psychiatrist, who described BCR’s condition at the time of his death as “very unwell and not in full possession of his judgement”.
I also, as previously stated, give significant weight to the opinion of Dr Turner who describes BCR as being overwhelmed by his workload. This feeling is echoed in BDJ’s statement and in the emails BCR sent (which I have referred to).
In the circumstances I consider it is more probable than not that the deceased’s death did not result from intentional self-inflicted injury because his mind was so overborne or influenced by the psychological condition that resulted from the workplace injury.
In my view there is no break in the chain of causation consistent with the principles discussed in Holdlen v Walsh.

Dependency

It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[20], Albury Real Estate Pty Ltd v Rouseand anor[21] that the term “support” in s 25 of the 1987 Act is not limited to financial support and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.
[20] (1995) 11 NSWCCR 546, [554] to [555].
[21] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris[22], McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[23]
[22] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[23] Halioris, [489].
I am satisfied that the evidence shows that the applicant and the second and third respondents were dependent on the deceased at the time of his death. They all received financial and emotional support from their loved husband and father and there was an expectation that this would have continued but for his death.
BDJ was living with her husband at the time of his death. They shared finances and relied upon BCRs income for all day to day expenses.
Both BFE and BEL were living with their parents at the time of his death. Both daughters were attending school and entirely dependant upon BCR.
Further, given the evidence before me and the failure by other potential dependents to make a claim, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.

Apportionment

In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick[24], Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[25]
[24] (1996) 15 NSWCCR 32 (Wratten).
[25] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit and this was confirmed by counsel during submissions.
Having regard to the totality of the evidence, the appointment suggested by the parties is in my view appropriate and properly reflects their respective expectations and entitlements. I therefore direct the lump sum to be paid in accordance with that agreement which was:
a.     $598,100 to BDJ;
b.     $100,000 to BEL, and
c.     $100,000 to BFE.
I also understand that there are outstanding funeral expenses and I direct that payment is made directly to the applicant.

[2022] NSWPIC 648

22 November 2022