Boxsell v AMP General Insurance & Anor

[2002] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S187 of 2001 and S90 of 2002

B e t w e e n -

MARGARET BOXSELL

Applicant

and

AMP GENERAL INSURANCE LIMITED

First Respondent

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

Second Respondent

Applications for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 10.44 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MS P.M. McDONALD for the applicant in these matters.  (instructed by Carroll & O’Dea)

MR J.D. HISLOP, QC:   May it please the Court, I appear with MR K.W. ANDREWS for the first respondent.  (instructed by Gillis Delaney Brown)

MR J.A. McINTYRE, SC:   May it please the Court, I appear with my learned friend, MR A.P. CAPELIN, for the second respondent.  (instructed by Hunt & Hunt)

GLEESON CJ:   I understand it is only a technicality that there are two matters.

MR GROSS:   Yes, it is.  It is double the filing fee, but it is a technicality.

GLEESON CJ:   Yes, Mr Gross.

MR GROSS:   Your Honours, in this case the deceased’s emotional reaction to the stress of court proceedings was found to be a novus actus so that any causal link between the original injury and the death by suicide brought about by depression was destroyed.  Your Honours, this is put most clearly by Justice Davies at page 150 of the book.  Incidentally, your Honours, we are using the S187 of 2001 book.  We had conveyed a message to the Court that all parties would like to use that book.

GLEESON CJ:   Thank you.

MR GROSS:   So, your Honours, if we could just go to page 150.  At lines 20 to 30 Justice Davies held that:

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.

Your Honours, that last sentence also jumps up in the judgment of Justice Heydon, and we would submit that is a test which should not be applied, that that is a separate ground of appeal.  Your Honours, we would submit that this species of reasoning potentially affects all personal injuries litigants, not just the widows whose injured husbands commit suicide.  In effect, what the court has said, albeit in a suicide case, is that that element of emotional disability which flows from reaction to the stress of being in the court system must be put aside as being unforeseeable.

GLEESON CJ:   Will you excuse me for a moment.  I have just thought of something.  This will not count against you in time.  For many years I owned policies of life insurance with the AMP Society and when they demutualised the society I found myself owning some shares.  I have never bought or sold any shares in the AMP Society and, I believe, it sold its insurance business to Southcorp Metway sometime ago.  So I do not know whether I have an indirect shareholding interest in the first respondent, but I simply disclose that fact in case anybody wants to ‑ ‑ ‑

MR GROSS:   Yes.  Well, the applicant is content to have the hearing proceed and I am sure the other parties are the same.

GLEESON CJ:   Thank you.

MR GROSS:   Your Honours, on the causation question, Chief Justice Spigelman said that the cross‑examination did not exacerbate the original injury, that is the work injury, or reactivate the psychiatric injury caused by the accident, because the trial judge found that the original depression was effectively cured six weeks before the proceedings took place.  Chief Justice Spigelman found that the matters the plaintiff was concerned about were qualitatively different from those which he was concerned about originally after the injury.

Your Honours, can I say that the issue of guilt arose in Rowe v McCartney, the New South Wales Court of Appeal decision, and Justice Heydon in the present case at page 109 says something about what your Honour Justice McHugh said in Nader on the subject of Rowe v McCartney.  Your Honours, at 109, in that passage which is quoted by Justice Heydon, it is evident that Rowe v McCartney was distinguished by your Honour Justice McHugh.  However, we would submit that the question of the role of guilt – here it was the guilt; in Rowe v McCartney the guilt about letting someone else drive – is something which is an aspect of irrational reactions where the litigants in other cases would benefit from the Court exploring the wider issue which would include this.

Your Honours, so far as the causation aspect was concerned, Dr Gertler had found that the deceased was attempting to come to terms with his disability and with his inability to work.  The evidence was that the injury had taken away the deceased’s pride in his work and work opportunities which he valued and created a sense of worthlessness so that, with his physical abilities gone, he would look like a fool trying to do some other work given his relative illiteracy.

Your Honours, we would submit that the findings made by the Court of Appeal were, in effect, that because he thought he had looked like a fool or would be made to look like a fool or a liar in the court proceedings, that was a separate thing, but, of course, any such perception operated against a background of this perception of inadequacy and the sense of worthlessness, which was plainly a result of the accident.  Indeed, the fact he is concerned he might be found to be a liar and fraud went plainly beyond the question of whether he was untruthful or might be viewed badly, because there were two further aspects that had to be weighed if you are going to have a total view of this matter. 

The first was that he had a bitterness that his disability was not being recognised by an unsympathetic employer; and, secondly, if he lost the case, which would be the outcome of being found to be a liar and a fraud, he would end up with uncompensated losses, legal costs, which he could not pay, financial hardship, loss of house and the like.  So that is the same species of economic worries which are at the heart of numerous emotional reactions to injury.

Your Honours, on the question of the plaintiff principle and looking at this case compared to cases in other jurisdictions, your Honours will have seen the decision which we have provided to you in the Queensland Court of Appeal in Lisle v Brice, which was decided two weeks before this present case, on 20 July 2001.  We have given your Honours a copy.  If your Honours do have that judgment, if I could just point to a couple of things.  At paragraph [32] there is a reference to Haber v Walker, the Victorian case, and it is pointed out there that:

The majority, Lowe and Smith JJ, concluded that once it was established that the death was caused by the wrongful act, default or neglect of the defendant it was not necessary to prove that the deceased’s death by suicide was reasonably foreseeable by the defendant.  Justice Hudson strongly dissented.

And you will note that in the intervening paragraphs there is a discussion of other cases.  If your Honours would just go, please, to paragraph [39], which is on page 14, at the bottom there:

It is immediately obvious that there is a marked division of judicial opinion as to whether or not remoteness is relevant in a Lord Campbell’s Act action.  Interestingly the cases are all one way where the dependency claim was brought consequent upon death by suicide.

There is a reference then to the majority judgment in Haber and the single instance judgment by Justice Begg in Zavitsanos.

On the other side one has the dissenting reasoning of Hudson J in Haber and the obiter comment by Wanstall ACJ in Richters.  Herron CJ in Versic v Conners at 35 also appears to have favoured the approach taken by Hudson J, though again his observations were obiter.

Now, your Honours, the question of what is the proper test, not only in a suicide case but in a death claim, is, of course, a matter of general legal principle.  There are just a couple of references where I can show your Honours that the courts below dealt with this aspect.  Would your Honours just go to the application book at page 37 line 20.  Your Honours will see that the trial judge, Judge Coleman, dealt with the issue arising in the authorities starting with Haber v Walker and ends up in the paragraph which he quotes:

“the matter to be determined is whether the death is caused by the accident and foreseeability is irrelevant.”

If I can just take your Honours to what Chief Justice Spigelman said about all this at page 61, your Honours will see at line 30 there is a reference to Haber v Walker again, where once again the majority in Haber v Walker found, in these cases, reasonable foreseeability is not a requirement.  Your Honours will note at the end of that paragraph his Honour says:

I agree with Heydon JA that it is not necessary to decide the issue in this case.

If I could just take your Honours to Justice Heydon at 131 line 30, once again there is a reference to Haber v Walker and the conflict by Justice Heydon, and at the bottom of 131 line 45:

It is not necessary to consider whether the authorities relied on to exclude the relevance of reasonable foreseeability should be followed.

But, in our submission, this is a case where, if the Court does grant leave, it does give the Court an opportunity to straighten out the entire issue and there is a profound conflict between the appellate courts.

Your Honours, could I just move to another matter.  Justice Heydon fed into the equation a requirement that the claim qua liability for suicide be dealt with on the assumption that the deceased, prior to his injury, could be regarded by his employer as being a person of normal fortitude.  Your Honours will have seen in numerous places in Justice Heydon’s judgment, which I can take your Honours to if need be, Justice Heydon emphasises that that is how you have to view a suicide case of this nature. 

Now, we would submit that such concepts may or may not have their role, subject to Morgan v Tame, in cases of pure psychiatric injury, but they have no relevance where you have physical injury resulting in emotional sequelae.  You take your plaintiff as you find him.  Eggshell concepts apply both to physiques and to psyches.

Your Honours, on the question of foreseeability of suicide, Justice Heydon at page 92 of the book took the view – and this is a passage I would seek to take your Honours to.  At 92 line 26:

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.

Then he goes on to say at the bottom of page 92:

That response was a wholly irrational response.  It was not the response of a person of normal fortitude.

So, in effect, the error becomes pronounced.  That is an entirely different approach from what we find in both Justice Davies in the present case – and I will come to that in a moment – but also as taken by the Queensland Court of Appeal in Lisle v Brice.  If your Honours have that judgment, your Honours will see that in Lisle v Brice at paragraphs [40] and [42] on page 15 this was said – if I can just briefly read this, midway though paragraph [40]:

Injuries sustained in consequence of the negligence of another, particularly where the incident is a severe motor vehicle collision creating a life-threatening situation, may result in the injured party developing psychiatric illness, particularly depression.  Experience, particularly over recent years, has shown that post‑traumatic stress syndrome is a not uncommon sequelae of injuries sustained in a motor vehicle accident.  The foresight of a reasonable person in this day and age must encompass the possibility, perhaps even the likelihood, of psychiatric illness – depression – following on from physical injuries sustained as a result of negligence.

Then would your Honours go to paragraph [42]:

Then, as Mahoney JA observed in Myers at 296, the depressed person may “do what depressed persons are apt to do, namely, to attempt suicide”.  If depression is foreseeable then it is difficult to conclude that suicide as a result of that depression is not foreseeable.  Unless the evidence points to some other factor as being a more significant cause, but for it the suicide would not have occurred, the tortfeasor will be liable.

Now, that stands in stark contrast, I say, to the approach taken by Chief Justice Spigelman, who stated it either as a principle or as a presumptive approach, that deliberate self-infliction of harm should generally be seen to breach the causal nexus.

McHUGH J:   They are two different concepts.  Causation and reasonable foreseeability are different concepts.  One goes to remoteness of damage; the other to the question of causation.

MR GROSS:   Yes.  Well, in any event, the two questions do not seem to have been separated out greatly within the judgment.  I do acknowledge what your Honour says.  But, your Honours, we submit you have two different approaches to suicide cases and it is, unfortunately, an incident of being disabled, through work or other injury, that depression occurs and some people do commit suicide.  We submit that there is this head‑on conflict, not only qua the legal test as we have explained, but also in the philosophy which you bring to bear.  Do you basically look at foreseeability before the injury occurs of the death by suicide of the worker, which is a long way down the track one assumes, or do you go in a staged process by saying, “Is it foreseeable if you have a physical injury you will have a depressive reaction?  Is it foreseeable if you have a depressive reaction you will have suicide?”  So that sequence of steps explains why the plaintiffs ‑ ‑ ‑

GLEESON CJ:   There is an intermediate step here, is there not?  Is it foreseeable that if you are injured you will have litigation?  Is it foreseeable that if you have litigation you will have a depressive response to the litigation?  Is it foreseeable that if you have that response you will commit suicide?

MR GROSS:   Yes.  Well, we would submit that if you cause an injury which is negligently caused, just as depression is foreseeable from physical injury, litigation is foreseeable from the occurrence of such an injury – let us put aside legislative changes for the time being – and we submit that you have to treat litigation as being part of the foreseeable sequelae of the injury.  There are various ways you can view it.  You can view it as the

reasonable steps taken to mitigate a loss and therefore you have a Fox v Wood type analysis, where you have losses resulting from litigation or, alternatively, you can view it as being necessary and foreseeable legal treatment of an injury, as distinct from medical treatment of an injury, which is the sort of issue the Court dealt with in Mahony v Kruschich.

We submit that the Court of Appeal has totally eliminated from the equation necessary parts of the analysis and has treated an emotional reaction to some parts of the stress of litigation as being such a rarity and, in any event, something that would not occur to someone of appropriate robustness, that you can put it aside.  But, of course, if you are going to find that, you have to be prepared to say that depression caused by injury, whether the person lives or dies, has to be treated as being a novus actus if, in fact, part of the genesis, or the entire genesis, is some events in the conduct of litigation.  We would submit that the case is one where the courts and the profession would benefit from the light the Court can shed on the matter.

GLEESON CJ:   We do not need to hear you, Mr Hislop or Mr McIntyre.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case and, further, that having regard to the particular facts and circumstances of the case, it is not a suitable vehicle for raising some of the issues of principle that have been referred to by counsel for the applicant in his submissions.  The application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 11.03 AM THE MATTERS WERE CONCLUDED