Dadd v Toll Dnata Airport Services Pty Limited - [2021] NSWPIC 54

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dadd v Toll Dnata Airport Services Pty Limited [2021] NSWPIC 54
APPLICANT:	Jennifer Dadd
RESPONDENT:	Toll Dnata Airport Services Pty Limited
MEMBER:	Ms Catherine McDonald
DATE OF DECISION:	31 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Death benefit; suicide; left and right knee injury led to aggravation of psychological condition; State Transit Authority of New South Wales v Chemler; Koorangang Cement v Bates considered on causation; section 14(3) of 1987 Act; Holdlen Pty Limited v Walsh, Fire & Rescue NSW v Hayman discussed; Held- award for the applicant for death benefit and funeral expenses.
DETERMINATIONS MADE:	1. Finding that: a. Stephen Dadd’s death on 1 March 2013 resulted from a psychological injury which was a consequence of the injury to his left and right knees on 26 October 2011; b. The applicant, Jennifer Dadd was partially dependent on him for support at the date of his death, and c. No other person was wholly or partially dependent. 2. I order the respondent to pay the following compensation to the applicant: a. pursuant to s 25 of the Workers Compensation Act 1987, the death benefit of $489,750, and b. pursuant to s 26 of the 1987 Act, funeral expenses of $9,000.

STATEMENT OF REASONS

BACKGROUND

Stephen Dadd was employed by Toll Dnata Airport Services Pty Limited (Toll) as a leading hand in the Bond Delivery area in Toll’s premises at Sydney Airport. He took his own life on 1 March 2013.
There is no dispute that Mr Dadd’s wife, Jennifer Dadd, was dependent on him for support at the date of his death and that no one else was so dependent. Ms Dadd claims the death benefit of $489,750 and funeral expenses.
Ms Dadd’s case is that Mr Dadd suffered depression as a consequence of an injury to his knees suffered at work on 26 October 2011 and that depression caused him to take his own life.
Toll defended the claim on the basis that there is insufficient evidence to establish a connection between the knee injury and Mr Dadd’s death and under s 14(3) of the Workers Compensation Act 1987 (the 1987 Act) because his death was the result of an intentional self-inflicted injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 23 February 2021 for a full day. Mr Goodridge of counsel appeared for Ms Dadd and Mr Robison of counsel appeared for Toll.
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 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.
The parties agree that Ms Dadd was dependent on Mr Dadd for support at the date of his death and that no one else was dependent. Because she was employed at that time, her dependency was partial.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;
(b) Reply, and

(c) Toll’s Application to Admit Late Documents dated 11 February 2021.

The attachment to Dr J A Roberts’ second report – being sections from the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (DSM-5) was provided by email after the arbitration hearing.

Death

The circumstances surrounding Mr Dadd’s death are set out in the statement of Constable Alexis Hohos dated 19 May 2013, which appears in the Reply.
Constable Hohos said that Ms Dadd last saw her husband at 7.45 am on 1 March 2013 when she left for work, after briefly discussing their recent marriage problems. They spoke briefly by telephone at 11:30 am and each of their daughters received a text message from Mr Dadd about 10:30 am. After Ms Dadd arrived home about 5:45 pm she found a note on the kitchen table saying that Mr Dadd was in the granny flat and asking her not to come down. Constable Hohos described the actions of police when they arrived at the house and confirmed there were no suspicious circumstances. They found two empty bottles of Temaze in the bin.
Constable Hohos said that Ms Dadd told them that Mr Dadd had been upset for the previous couple of weeks due to marriage problems. Constable Hohos also recorded that Mr Dadd’s daughter, Leila Blades said that in 2004, Mr Dadd had attempted to commit suicide using a firearm and was admitted to hospital for eight weeks. Constable Hohos recorded that Ms Dadd said that Mr Dadd’s general practitioner was Dr Symeou who prescribed Dothep and that he had recently been diagnosed with emphysema.
The autopsy report dated 17 May 2013 noted that past medical history was significant for emphysema, depression and a previous suicide attempt. The cause of death was noted to be the combined effects of carbon monoxide poisoning and a lethal dose of dothiepin. The microscopic examination of tissues showed changes consistent with early emphysema.
The coroner dispensed with an inquest.

Family statements

Ms Dadd prepared a series of statements. Because the only dispute concerns liability, I have not summarised the evidence going to dependency.
In her first statement dated 13 August 2015, Ms Dadd said that Mr Dadd was diagnosed with depression in about 2000 which was controlled by medication. She said they had a happy marriage, travelling in their caravan often and enjoying their grandchildren. She described Mr Dadd’s knee injury in 2011. She said that he was given computer work as part of his rehabilitation, which he disliked.
In 2012 Ms Dadd said she noticed a significant change in her husband’s mood. He started to avoid social activities and complained that his body was giving up on him. In February 2013, Mr Dadd was asked to take annual leave because he had accumulated too much and he was “forced to cease his workers compensation treatment.” He took his life during the period of annual leave.
In her statement dated 13 March 2017, Ms Dadd said that her husband was in constant pain with his knees and frustrated that he could not work, leading to arguments. She confirmed that his mood had changed significantly in about mid-2012. She said she was unable to cope with his frequent mood swings. While he was on leave, he became more withdrawn and hard to talk to which strained the marriage. On the day of his death they spoke about their problems and Ms Dadd said they would talk that night.
Ms Dadd prepared a statement dated 19 September 2017 responding to the report of Dr JA Roberts, psychiatrist, relied on by Toll. Much of the statement is in the nature of submissions rather than evidence. She said that she was unaware that Mr Dadd was seeing Toll’s chaplain, Graham Blok, until after he died. She said that she noticed a very severe decline in his mood about December 2012. Before he was asked to take annual leave, Mr Dadd was working only eight hours per week.
Ms Dadd said that her husband was diagnosed with emphysema by his long term general practitioner, Dr Symeou but understood that no medication was prescribed.
Ms Dadd reiterated that the problems in her marriage were a result of Mr Dadd’s deteriorating mental health. She was aware that Mr Dadd was taking Dothep prescribed for depression in the morning and evening and she saw him take it on most days. She referred to Mr Dadd’s previous suicide attempted as a result of which he was admitted to hospital and treated by Dr P Whetton, psychiatrist.
In response to matters in Dr Roberts’ report, she said that they had disputes over trees with their neighbours who poisoned the lawn shortly before an appointment with his former treating psychiatrist, Dr Whetton. She said his last visit to Dr Whetton was in 2009.
Ms Dadd’s statements are supported by her daughters.
Three notes left by Mr Dadd on the date of his death are in the file. None refer to the motivation for his death, other than that for “the past couple of years I have been fighting with myself not to worry me [sic] and be a more understanding person. I am tired…”
Leila Blades is Mr and Ms Dadd’s elder daughter and she also prepared a series of statements. In her first statement dated 30 July 2015 she said that Mr Dadd was diagnosed with depression in 2000 but it was well controlled and “of no major significance until after his work accident in October 2011.” His family became concerned in about August 2012 when it became clear that the accident was “having a catastrophic effect on every aspect of his life.” Ms Blades encouraged him to speak to Dr Phonesouk about it. Ms Blades said that her father told her he felt heartbroken that he could not do the things he did before the injury and in February 2013 he said that he wanted “to be the old me”, that he hated being in pain all the time and that “I cannot do any of the things that I did before I hurt myself at work, my life is over.”
Ms Blades’ statement dated 19 September 2017 contains much material in the nature of submissions in response to Dr Roberts’ report. She said that Dr Symeou diagnosed emphysema in January 2013 and said that he did not need to take medication for it. She provided more detail about Mr Dadd’s suicide attempt in 2004 and said that she drove him to see Dr Whetton, whom he had been seeing for the previous month.
Elana Rodney, Mr and Ms Dadd’s younger daughter, prepared statements which are corroborative of those of her mother and sister.

I have considered the remainder of the evidence in essentially chronological order.

Dr Symeou

Mr Dadd’s usual general practitioner was Dr S Symeou, initially of Roselands Family Medical Practice and later at what appear to be two different practices at Maroubra.
Dr Symeou’s notes commence in 1993. Mr Dadd complained of a right knee injury on 9 March 1993 getting out of a truck and Dr Symeou recorded that he had first hurt his knee three years before. The notes record an effusion in the knee which was aspirated. Dr Symeou queried a tear of the medial meniscus and Mr Dadd was referred to Dr S Waddell, orthopaedic surgeon.
Dr Symeou diagnosed reactive depression on 28 October 1996. He wrote:
“Having problems Feels tired. Worried all the time about his business. He is the lynchpin and no one can do his work. has to be constantly on call. cannot go on holidays. Getting depressed about this and getting teary. Business is not as good as before an has to constantly on deck to quote at call. Financially secure. Has lost interest in his hobbies. Finds that they are taking up too much time. Wants to spend more time with his family but he cannot.” [sic]
No medication was prescribed. In September 1997, Dr Symeou noted that Mr Dadd had a new business and felt well.
On 28 October 2002 Dr Symeou recorded that Mr Dadd was injured operating his concrete truck four days before. He was knocked out, had a stiff neck and a sore right knee. On the following day, Dr Symeou noted that Mr Dadd was uneasy about going to work and was worried about another accident. When he delivered his second load of the day, the pump operator walked away and the pump was at risk of running dry. He wrote:
“Steve became frozen and was sweating and crying. Foreman heard Steve and investigated and made pump operator tum it off, just in time. Steve broke down and could not work again Crying++.
Counselled.
Suffering from post traumatic stress disorder. For rest at home. Temaze and night and review in one week.” [sic]
By 4 November, Mr Dadd was improving and wanted to go back to work. Dr Symeou noted he was still having flashbacks. Mr Dadd was referred to Dr Whetton for counselling.
On 24 December 2002 Mr Dadd told Dr Symeou he had been denied holidays because applications were made while he was off work. Dr Symeou noted;
“Stephen has been upset and has had a few road rage incidents since being told he cannot go on holidays. He is having trouble sleeping and losing his temper easily with other people and his family. Not coping well now.”

Dr Symeou advised Mr Dadd to consider another job because the current one was affecting his mental health too much.
On 7 July 2003 Dr Symeou again diagnosed post-traumatic stress disorder as a result of the incident on 24 October 2002 and referred Mr Dadd to Dr Whetton. On 4 August 2003, Mr Dadd had a recommended holiday but became anxious shortly before his return to work and was unable to continue. He “wants to get out of industry as he cannot take it any more.”
On 9 September 2006 Dr Symeou recorded that Mr Dadd had a two month history of tiredness and shortness of breath and similar complaints were noted on 18 October 2006 when Pulmicort was prescribed.
Mr Dadd continued to see Dr Symeou in 2007 and Prothiaden was prescribed. Mr Dadd’s depression was described as “well controlled”. On 14 November 2008 Dr Symeou noted that Mr Dadd had been suffering increasing anxiety and mood swings and had been seen by Dr Whetton who advised admission to hospital for a change of medication. Mr Dadd was reluctant as he was scared he will lose his job. He was, by this time, working for Toll.
On 27 May 2009 Dr Symeou noted that Mr Dadd had been well though still felt down at times, worried all the time and was anxious. He had no suicidal ideation and felt much better than a year ago.
On 28 July 2009 Mr Dadd complained of pain in his knees on walking up or down stairs though had no locking or giving way. Dr Symeou diagnosed patella-femoral syndrome and recommended exercises.
By 26 October 2009, Mr Dadd’s depression was worsening again. He was keen to see Dr Whetton again and it had been recommended that he change his medication though was aware that would require admission. He had “suicidal ideations at time but will not do anything. Having problems concentrating at work and not coping well there” [sic].
On 15 January 2010 Dr Symeou said that Mr Dadd had a trial of an anti-schizophrenia drug but was unable to tolerate it. He had been taken to hospital the previous week after an episode of chest tightness whilst on a forklift at work.

Between 2010 and 2012, Dr Symeou prescribed Prothiaden. There is no reference to the injury on 26 October 2011 in Dr Symeou’s notes.
On 16 October 2012, Dr Symeou administered a DASS 21 assessment and changed his medication from Prothiaden to Dothep. Dr Symeou noted that Mr Dadd’s depression was well controlled.
On 10 January 2013 Dr Symeou noted that Mr Dadd was a heavy smoker and had had a cough for the past six months. Spirometry testing showed a pattern consistent with early emphysema. Dr Symeou recommended that Mr Dadd stop smoking and again prescribed Pulmicort. A chest x-ray was undertaken on that day. Dr Symeou saw Mr Dadd on 12 and 25 January 2013 about skin cancers and the emphysema diagnosis was not discussed.

Dr Whetton

Dr P Whetton, psychiatrist, produced documents under direction in previous proceedings. He attached a note which explained that he had notes from seven years before the date of the last consultation in 2009. He enquired about hospital notes which he was informed had been destroyed.
Dr Whetton saw Mr Dadd at the request of Dr Symeou on 21 January 2003 when Mr Dadd owned his own concrete truck and a series of incidents had shown him that he had faced great risks at work. In about October 2002 he was involved in an incident in which he could have been killed and there were two subsequent incidents. As a result, Mr Dadd had lost his nerve as far as work was concerned and had overused alcohol which Dr Whetton considered had “blown the whole problem out of proportion.”
Dr Whetton monitored Mr Dadd’s progress at an appointment on 7 August 2003 when he prescribed medication. He prepared a report for a legal officer at the Transport Workers Union on 2 September 2003 and diagnosed adjustment disorder with anxiety and depression including phobic features. He considered that Mr Dadd required supportive psychotherapy and antidepressant drugs. The prognosis was favourable but he remained unfit for work.
On 9 October 2003, Dr Whetton prepared a substantially similar report for an income protection insurer. In this report he said:
“His wife stated that he was totally unlike his usual self and had become withdrawn.
She said that he spent excessive amounts of time by himself smoking and staring into space. She said that since the first accident he had become very anxious and this was particularly noticeable when driving the car. He was not eating well and his concentration was poor. She reported that previously he was a very easy going sociable kind of man and now avoided going out. He had lost interest in things and was obviously depressed.”
Dr Whetton said that Mr Dadd was unable to return to concreting but was highly motivated to return to full functioning.
The reference to the hospital notes in his covering letter appears to refer to treatment by Dr Whetton in hospital following the 2004 suicide attempt. Because those notes were destroyed, there is no contemporaneous medical evidence about those events.

On 1 April 2004, Dr Whetton said that Mr Dadd had been out of hospital for several weeks and was improving though had a lot of anxiety symptoms. Dr Whetton had increased his medication and asked him to join an outpatient anxiety management group.
By 24 May 2004, Dr Whetton noted that Mr Dadd had applied for a job. He saw Mr Dadd on 12 July 2004 when he was gaining confidence in his job. On 21 December 2004, Dr Whetton noted that Mr Dadd had not had any significant relapses.
On 5 September 2005, Dr Whetton said:

“I saw Stephen again today. His last visit to me was in December 2004.
He has remained reasonably well from the psychiatric point of view in the sense that he hasn't had any relapses of his major depression.
His mental state however, continues to be anxious and obsessive. He worried about a great deal about his work and seems inordinately attentive to the detail of the job. He arrives early and may leave late.
He has had times when he has been drinking to excess. He works more than 5 days per week, which to my mind is excessive and I have counselled him about this.”

Dr Whetton next saw Mr Dadd on 21 October 2008 and said that Mr Dadd had remained on 300mg of Prothiaden daily throughout the years. He said:

“…In recent times he has had an exacerbation of his depression and obsessive worrying.
He has concerns about his neighbours and thinks that they have poisoned his lawn and are talking about him. There are problems at work with a training officer who he thinks is a friend of an ex son in law, and this is creating problems for him.
Stephen has been sleepless. He is not enjoying his food. At times he is tearful and is constantly anxious. He does not want to go out and only feels secure when he is at home.
He has had suicidal ideation but doesn't admit to any details of intention to harm himself.
He is in a similar state to that when he was admitted to Wandene years ago, but nowhere near as bad as on that occasion. I have advised him to be admitted and he has accepted this.”

Mr Dadd did not see Dr Whetton again until 2 November 2009. Dr Whetton noted that Mr Dadd did not seek hospitalisation. In November 2009, he told Dr Whetton that he had been depressed and that he ruminated about problems at work. He had recently had suicidal ideation. Dr Whetton said that Mr Dadd presented as a “fairly tense kind of individual” with obsessional personality traits, exaggerated at the moment. Dr Whetton again discussed hospitalisation and prescribed Seroquel to aid sleep and help with paranoid symptoms and because it can have “an augmenting effect on the antidepressant.” Dr Whetton anticipated seeing Mr Dadd in the following week.
On 31 May 2013, Dr Whetton wrote to Ms Dadd and noted that any request for treatment notes required a request from his executor.

Knee injury

Mr Dadd completed a claim form on 28 October 2011 in which he said he had injured his left knee. The employer’s report of injury also refers only to a left knee injury.
There is no statement which describes Mr Dadd’s knee injury though the notes of Sydney Airport Medical Centre contain the relevant information, comprised of the doctors’ and physiotherapists’ notes and the correspondence and return to work plans received.
Mr Dadd consulted doctors at the Centre on several occasions from 2008 when he commenced work with Toll. On 26 October 2011 he saw Dr G Yuen stating that he had twisted his left knee when he moved a box that was out of alignment in a stack of boxes. He saw Dr S Phonesouk on 28 October 2011 and on 1 November 2011 when he had tried the forklift which made his knee sore and Dr Phonesouk considered that he needed to reduce his hours. Later in November, an MRI scan was undertaken and Mr Dadd was referred to Dr D Chen. His right knee was also painful. Mr Dadd was working four hours on three days per week.
From the time of the injury, Mr Dadd was prescribed Panadeine Forte to be taken four times a day.
On 25 November 2011 Dr Chen reported to Dr Phonesouk and said:
“Three weeks ago whilst at work he twisted on his left knee whilst shifting a 130kg pallet. He developed instantaneous pain to the medial side of the left knee with swelling. He has had no troubles to either knee prior to this. For the last four days his right knee has developed similar symptoms which he feels may have been attributed at the time of his initial injury. He -has had sharp medial sided knee pain to both knees but the left knee is improving. He has had swelling and has been walking with a limp. He has been taking Panadol for symptom control. He has been at work full time on restricted duties. He is quite a dedicated worker.”
And

“Stephen presents with a history of likely bilateral meniscal pathology. I think that both of them are attributable to his work related injury given he twisted on his knees shifting a heavy pallet. He has documented evidence on the left side of a meniscal tear with an MRI scan. I have recommended an MRI scan of his right knee to confirm a meniscal tear on that side.”

Toll’s insurer approved the right knee MRI scan on 30 November 2011.
On 5 January 2012 Dr Phonesouk completed a questionnaire for Toll’s insurer and said that Mr Dadd had:
“twisted both knees on the day of injury. His left was more painful than the right so he did not focus. Later the right knee became progressively more painful and reported it ASAP.”
Dr Phonesouk said that both knees were fully functional and asymptomatic before the injury and that he believed that work was a substantial contributing factor to the injury to both knees.
Surgery on Mr Dadd’s right knee took place on 23 January 2012. Dr Chen preformed a partial medial meniscectomy and chondroplasty. In a report to Dr Phonesouk he said that there was an extensive tear to the body and posterior horn of the medial meniscus. On 3 February 2012, Dr Chen recommended physiotherapy and expected a full recovery.
On 12 April 2012, Dr Phonesouk diagnosed depression. His notes say that he issued a medical certificate but the only certificate issued on that day was in respect of bilateral knee pain, certifying Mr Dadd fit for eight hours on three days per week.
The file contains a series of return to work plans. Most of the documents prepared by the insurer such as return to work plans refer to the left knee. A return to work plan report dated 3 May 2012 prepared by Mr Yeong Lee described the history obtained:
“During the initial interview, Mr Dadd reported to Injury Treatment that he injured both his right and left knee whilst performing his pre-injury duties during the course of his employment at Toll Dnata Services Pty Ltd. Specifically, Mr Dadd advised:
• He attempted to push a pallet in order to straighten it up.
• He experienced an immediate onset of pain in both left and right knee.
• Initially, he thought the pain in both knees would settle with time but the pain worsen especially in the right knee. He did not return back to work as he was on scheduled leave for the following 2 weeks.
• He consulted Dr Phonesouk when he returned from leave who organised MRI scan for both knees in mid-November 2011 which revealed medial meniscal injury to the right knee and cartilage damage to the left knee.
• He reported the right knee pain worsen while the left knee pain gradually resolved.
• He consulted Dr Darren Chen (orthopaedic surgeon) in December 2011 before undergoing a right medial meniscectomy surgery in January 2012.”
On 19 April 2012, Mr Dadd saw Matthew Squires at the same practice, who assessed his ability to get on and off the forklift. Mr Goodridge addressed on the basis that he was another doctor in the practice but his notes suggest that he is a physiotherapist. That is confirmed by the physiotherapy management plans which appear in the file and in Dr Phonesouk’s report dated 13 June 2014. Mr Squires noted that Mr Dadd was very stressed and anxious and that he had been reviewed by Mr Y Lee, a physiotherapist who did not undertake a physical assessment of the knee. Mr Squires wrote:
“Stephen feels bullied in return particularly due to no physical examination;
If the knee goes backward would be keen to ‘pursue legal action’
Angered as no consultation with treating Doctor
…
Objectively - Steven has a very poor squat and still an irritable knee.”
On 24 April 2012 Dr Phonesouk noted that Mr Dadd was distressed and depressed and not fit to work. He wrote “need to sort out duties” and provided an ordinary medical certificate for that day.
Mr Dadd continued to see Dr Phonesouk and Mr Squires. The notes suggest some improvement but ongoing pain. On 25 May 2012 Dr Phonesouk noted that Mr Dadd’s “knee slowly getting better” but he suffered “more and more agitation” and was depressed.
On 6 June 2012 Mr Y Lee, rehabilitation consultant, said that Mr Dadd was coping well on three and a half days of high reach forklift driving and two and a half days of administrative duties. It was anticipated that he would upgrade to pre-injury duties.
Later in June 2012, Mr Dadd went to Canterbury Hospital with abdominal pain.
On 3 July 2012 Dr Phonesouk noted that Mr Dadd had a gall bladder attack while on holidays in Adelaide and was to see a specialist about having surgery on 17 July. His right knee was noted to be “ok” but the left was worse than the right and Dr Phonesouk referred him to Dr Chen. On the same day, Mr Squires nots that Mr Dadd had stopped the car every hour and that both knees were swollen whilst walking with his wife’s mother in Adelaide.
On 31 July 2012, Mr Squires noted that Mr Dadd’s right knee as still swollen and that he was driving a forklift for four hours on three days per week. Mr Squires recorded that Mr Dadd was unable to walk up or down stairs and was walking sideways, taking stairs one at a time because he was unstable. He had had that problem for about a month.
On 25 July 2012 Dr Chen confirmed that Mr Dadd had twisted both knees at the time of the injury and recommended left knee arthroscopy and meniscal debridement. At that time, Mr Dadd had occasional discomfort in the right knee but was back to full activities at work. Dr Chen noted that Mr Dadd was booked to have surgery for gall bladder removal and hernia repair which was to be performed first.
On 9 August 2012 Mr Squires noted that Mr Dadd had breathing difficulties during the operation and was intubated. On the same day Dr Phonesouk noted an “allegedly bad recovery” after the surgery with an increase in blood pressure.
On 20 August 2012, Dr Phonesouk prescribed Dothep, an antidepressant. There is no further explanation in his notes. On 21 August 2012, Mr Squires noted that Mr Dadd was upset because his knee was highly irritated and he had been asked to do work which required a lot of step ups and standing.
Mr Dadd complained to Mr Squires of right knee pain on 23 August as a result of stepping. Dr Phonesouk recorded on the same day “IN PAIN++++ cannot walk”.
The left knee arthroscopy was undertaken on 28 August 2012 Dr Chen performed a partial medial meniscectomy and a lateral meniscal debridement.
Dr Chen reported to Dr Phonesouk after a post operative consultation on 7 September 2012. Dr Chen asked Mr Dadd to remain off work for two weeks then return to light duties and more normal duties six weeks after that.
On 11 September 2012 Dr Phonesouk recorded “Medial and lateral meniscus excised!!” Dr Phonesouk prescribed Panadeine Forte. On the same day Mr Squires noted that Dr Chen was “very worried about VMO wasting” and Mr Squires noted little activation in the VMO. I understand VMO to refer to the vastus medialis oblique, one of the quadriceps muscles.
On 25 September Dr Phonesouk recorded “pain pain pain” and muscle atrophy. He wrote “needs to start walking stick maybe crutches.” On the same day Mr Squires wrote that Mr Dadd’s left knee pain was greater than the right but his right knee was clunky which was getting him down. Mr Dadd was trying to do short bouts of walking for 10 minutes at a time and was given advice about walking with a walking stick. Mr Dadd was sleeping poorly because he had difficulty getting comfortable.
On 4 October 2012 Dr Phonesouk noted that Mr Dadd was still in pain but “time to get back into work”. He was certified fit for four hours on two days per week.

On 8 November 2013 both Mr Squires and Dr Phonesouk noted that Mr Dadd’s right knee “clunks all the time”. Dr Phonesouk noted that Mr Dadd also had abdominal pain and ended his note with “poor steve.”
On 30 November 2012, Dr Chen noted that Mr Dadd had recurrent activity-related right knee effusion and marked left knee swelling which he aspirated, providing immediate relief. Dr Chen administered a cortisone injection for symptom control and recommended further physiotherapy and anti-inflammatory medication.
On 10 December 2012 Dr Phonesouk noted that Mr Dadd’s left knee was swollen which was “disappointing”. He noted that Mr Dadd had extremely severe stress and anxiety and severed depression and that he was “to see psych in the new year”. On 13 December, Mr Squires noted that he was still working for four hours on two days per week.
By 12 December 2012, the left knee effusion had recurred. Dr Chen again recommended exercises, anti-inflammatory medication and bandage.
On 3 January 2013 Mr Dadd again told Dr Phonesouk that his knee was swelling and did not appear to get better. He diagnosed insomnia and prescribed Temazepam. On 23 January Dr Phonesouk noted that Mr Dadd was sleeping better with Temazepam but had been diagnosed by his own general practitioner with emphysema. He had stopped smoking and his anxiety and depression were under control.
On 15 February 2013 Dr Chen wrote:
“Stephen returned for a review of his knees. He·has been diligent with a physio program. He is making good progress. His knee effusions remained under good control and he is certainly happy with his progress. His main issue is at this stage a feeling of muscle fatigue in both lower limbs in particular quads region and certainly this would be attributable to his increased exercises that he is performing. Some anterior knee pains felt with descending stairs and this will improve with further quads development. I note that Stephen is having a rough time with recurrence of depression and is suitably taking some time off work and working his way through it.
With respect to his knees, assessment today. was within normal limits with no significant effusions. He had full range of motion of both knees and no tender area. I will see him again as needed, but at this stage, no further followup is required.”
On the same day, Dr Phonesouk noted that Mr Dadd’s knee was finally starting to turn the corner, that he was “going on holidays” and “will need to see psychs.” A DASS questionnaire showed no change and Dr Phonesouk noted “really rough of it all lately, holidays will help and “to refer to psych at uplift when back at work.”
The certificate prepared by Dr Phonesouk on that day said that Mr Dadd was fit to work four hours on two days per week until 18 March 2013. His lifting and carrying capacity was 2–5 kg as was his pushing/pulling ability.
Ms Blades made a complaint to the Health Care Complaints Commission and Dr Phonesouk prepared a response dated 13 June 2014 which summarised the treatment provided. Dr Phonesouk said that he had treated Mr Dadd as a nominated treating doctor for a claim in respect of his knee injury. Dr Phonesouk said:
“Mr Dadd also informed me that he had his own GP, with whom he had been attending for years. He disclosed that he had suffered depression in the past and that he was on dothep, but that he was seeing his own GP for his non Work Cover related care, including his pre-existing medical conditions. He expressed that he was content to continue seeing me whilst at work and that he was happy with the ongoing treatment his local GP provided in relation to other healthcare concerns.
I noted Mr Dadd's intermittent depression, as well as an incidental episode of cholecystitis for which he required a cholecystectomy ,during his work cover treatment period. I facilitated Mr Dadd's care and frequently checked with him that he was in contact with his GP.
…
Mr Dadd's recovery and rehabilitation was unfortunately long and complicated due to postoperative pain and swelling to his left knee, and the pain he developed in his right knee as a result of having to compensate for the left knee. I could see that Mr Dadd was genuinely trying to return to his pre-injury duties, but was struggling. I ensured Mr Dadd's recovery was well facilitated by advising restricted hours and duties in his return to work plan, and. along with Mr Squires, I was also communicating with rehabilitation providers, Specialists and Mr Dadd's employer, consistently throughout our treating relationship. This communication served two purposes, to increase the quality of care, as well as to make clear to his employers the reasons for which Mr Dadd was having difficulty returning to work, in an effort to help alleviate any pressure he fell in this regard
I first noted Mr Dadd's depression in April 2012, and arranged for him to have time off work on this occasion citing personal reasons. I also provided him with a prescription for Dothep at one time in August 2012 and again facilitated leave from work citing personal reasons.
Further, risk assessments were carried out throughout Mr Dadd's care, in which he denied any self-harm. Throughout his care several DASS (Depression Anxiety and Stress Scale) were performed.
On 10 December 2012, I recommended psychological counselling with Uplift Psychological Services ("UPS") secondary to DASS results which indicated Mr Dadd was suffering from depression. I assessed that Mr Dadd was suffering adjustment issues with an aggravation of his depression symptoms. He attributed this to his chronic pain and disabilities in both his knees. As is my usual practice, I would have discussed the benefits of attending psychological ·services with him, highlighting the convenience their being located close to the airport vicinity in Mascot. Mr Dadd did not wish to proceed with this, and repeated that he was taking Dothep and that this was helpful to him. On 13 December·2012 l took the opportunity to revisit the topic with Mr Dadd when he attended for review of his left knee injury. Mr Dadd agreed to be referred to UPS in the New Year.”

Factual evidence regarding the knee injury

There is little information in the file concerning Mr Dadd’s employment and there is no evidence from any officer of Toll with respect to the allegation that Mr Dadd was forced to take annual leave in February 2013. There following reference appears in a response by Ms G Hawkins of the WorkCover Authority of NSW in response to a letter from Ms Blades:

“lnvestigations by Allianz could not conclude whether your father was forced to take annual leave in the weeks prior to his death. Allianz were informed that your father requested leave for the week from 25 February 2013. As at 25 February 2013 your father had approximately 270 hours of excess leave accrued. Therefore, ToII advised that there is a high probability that he had been asked to take leave as he was in excess of the company’s allowable leave. Allianz was advised by Toll that employees are requested to take annual leave if they have accrued excess leave. Excess leave is currently an amount of 200 hours of leave. I understand Toll employees are required to take their full entitlement of annual leave of eight weeks every year.
Allianz·have confirmed that at no time-between the period November 2012 and March 2013 had any treatment for your father either been ceased or disputed.”

There are no statements in the factual investigation reports in the file about that issue and there are no statements from Mr Dadd’s supervisors.
Robert Turner was Mr Dadd’s co-worker and was also a leading hand in the Bond Delivery area. He said the other workers called Mr Dadd a “stress head”, stressing over things that did not really matter. An example was Mr Dadd’s propensity to hurry up the forklift drivers when they are servicing trucks. When Mr Dadd injured his knees, he asked Mr Turner if he thought “they had the shits with me” for being off work for so long. Mr Turner told him not to worry until he was cleared for some work. Mr Dadd told him he was bored at home and liked to come to work.
Mr Turner did not think that Mr Dadd’s demeanour changed after the injury. He said that Toll did not place him under pressure and left him alone. He was given duties to do when at work. Mr Turner said that any stress did not arise in the workplace. He said:
“Any stress that was bought about through work was not the workplace bringing on him he was stressing about things where it was not necessary to stress over, he would make a mountain out of a mole hill.”
Mr Turner had the impression that Mr Dadd had a happy home life and was financially secure. When Mr Dadd’s shift started at 6.00 am, he arrived at work at 5:15 to avoid traffic and smoked until his shift started. Mr Turner said that he was unaware that Mr Dadd suffered from depression. He said Mr Dadd smoked like a chimney but said he did not like to take tablets. However, he also said that he did not work closely with Mr Dadd in the six months before his death.
Frank Chianese knew Mr Dadd for about 18 months and worked with him for about six. Mr Chianese’s statement does not reveal the job he did. He considered Mr Dadd a normal, outgoing person and was unaware that he suffered from depression. He recalled that Mr Dadd was unable to walk far because of his knee injuries but was not permitted to park his car on site. He rode a motor cycle to work so that he could park on site but told Mr Chianese that he felt the weight of the bike when stopped at traffic lights.
When he was working with Mr Chianese, Mr Dadd was allocated duties on an Elevated Transfer vehicle which is fixed to a track and transfers units from racking onto a mechanised roller. Mr Dadd expressed concern that he would have to stand for long periods but was offered a chair. Mr Dadd did not do that work for long and returned to work with Mr Chianese. Mr Chianese said that Mr Dadd adapted well to the clerical work he was given. However he also said that Mr Dadd worked with him for four hours a day and because his job was busy, they did not have a lot of idle interaction.
Mr Chianese said that he was unaware that Mr Dadd suffered from depression and said he was happy and upbeat on his last day of work before leave.

Chaplain Blok

After Mr Dadd’s death, his family found a card in his wallet and spoke to Graham Blok, a chaplain employed by Toll, whom Mr Dadd had spoken to on a number of occasions. Though Ms Blades summarised the information Mr Blok provided in their meeting, the best evidence of Mr Blok’s interactions with Mr Dadd appears in his notes and his statement.

Mr Blok recorded that he received a phone call from Mr Dadd on 18 April 2012 in which he said he was on light duties following a knee injury, that he thought people at work were laughing behind his back, that he had seen a psychiatrist – his last appointment being in 2009 – and that he “has been on” medication for depression.
Mr Blok and Mr Dadd met in a coffee shop on 20 April 2012. Mr Dadd summarised his work history. He said he had been on medication for eight years and that in 2004 he spent six weeks in the Mental Health Unit at Kogarah Private Hospital. Mr Blok wrote that “Steve told me that when he has suicidal thoughts he thinks about his wife kids and grandchildren.” He recorded that Mr Dadd needed an operation for his knee injury and that he was depressed about not being able to work. He had eight weeks of annual leave. He also recorded:
“Steve wants to keep busy otherwise he has a tendency to think negative thoughts
Steve has lost his appetite
Steve needs to see heart specialist re shortness of breathe
Steve is also planning to see a nutritionist”.
Mr Blok and Mr Dadd met again on 21 January 2013 and Mr Blok’s notes record that Mr Dadd had operations on his right knee in February 2012 and his left knee in September 2013. He recorded that “[s]tress leads to confusion At times Steve doesn’t want to go out”. He also recorded:

“Steve doesn't want to see GP
Issues with Gall Bladder
25% lung capacity
He will be on the bottle in 2-3 years' time
…
Steve doesn't want to go back to where he was before
Steve doesn't want to go back to the Mental Health Ward at the Private Hospital
…
Steve wants to keep on the right side of work and his family
Staying at home for 3 weeks would send him mad
Photo of kids stops him from taking his life”

Mr Dadd rang Mr Blok on 4 February 2013 and told him that Toll wanted him to take annual leave. Mr Blok suggested he talk to his general practitioner to check whether now was a suitable time.
Mr Dadd and Mr Blok met again on 5 February 2013 and Mr Dadd said he had decided to take three weeks annual leave from 19 February and was “going to stay at a mate’s place at Cobar…to get away and relax”. Mr Blok recorded “All normal now… keen to start his social life again…already been in contact with his old mates”.
On 24 May 2013 Mr Blok met with Ms Dadd and Ms Blades.
Mr Blok prepared a statement in which he summarised his notes. He said that he had read Ms Blades’ notes of the meeting on 24 May 2013 and had annotated those part which were not accurate. The annotated notes do not appear in the file. I have relied on Mr Blok’s own notes and not Ms Blades’ summary.

Dr Teoh

Dr B Teoh, psychiatrist, prepared a series of reports at the request of Ms Dadd’s lawyers. All of them are relatively short.
The first is dated 5 November 2016 and is based on his reading of the first statements prepared by Ms Dadd and her daughters and a small selection of other material. Dr Teoh was asked:
“Do you agree that following our client sustaining injury to his left knee on 26 October, 2011, that he has regularly made complaints of a psychological nature referable to the physical pain that he was experiencing, as well as his inability to engage fully with his pre-injury work, social, domestic or recreational activities?”
Dr Teoh said that Mr Dadd had suffered a knee injury on 26 October 2011 and complained of depressive symptoms and expressed suicidal thoughts to Mr Blok. Dr Teoh said that the symptoms would satisfy the criteria for a diagnosis of major depression, developed as a result of chronic pain and physical disability. Previous depressive symptoms were in remission at the time of the injury. Dr Teoh considered that the left knee injury was a substantial contributing factor to the psychological injury which resulted in Mr Dadd taking his own life.
Dr Teoh reviewed further documents including additional statements, the suicide notes, factual investigation reports and Dr Roberts report dated 1 April 2017. He said that those documents did not alter his opinion that Mr Dadd suffered from major depression as a result of his knee injury at the time of his death and that this diagnosis of Chronic Obstructive Pulmonary Disease had not contributed significantly to his depression. He disagreed with Dr Roberts’ suggestion that Mr Dadd had psychotic symptoms.
Dr Teoh’s final report is dated 10 August 2020. He repeated his previous diagnosis and said:
“It is my opinion that his severe depressive symptoms had distorted his judgment and perception. He expressed a sense of hopelessness. He committed suicide because he could not see a future.
It is my opinion that his suicide was not intentional, and he was not in control of his mind at the time of his suicide. His perception and thought process were distorted by his severe depressed mood.
It is my opinion that his volition was "overthrown", and his suicide was not an intentional act.”

Dr Roberts

Toll’s lawyers qualified Dr JA Roberts, psychiatrist, who prepared a report dated 1 April 2017.
Dr Roberts was provided with a bundle of documents. His opinion is contained in a series of comments on the documents that he reviewed. He reviewed Dr Phonesouk’s records and noted the contents of some of the consultations, particularly those where Dr Phonesouk noted some improvement. He said that there was no nexus between Mr Dadd’s agitation and distress and the knee injury if his knee was improving. He also noted Dr Phonesouk’s last consultation on 15 February 2013 when he commented that Mr Dadd’s knee was starting to turn the corner but his DASS score remained the same. Dr Roberts said this meant there was no nexus between DASS score remaining the same and the knee injury improving. He noted the same pattern of improvement from Dr Chen’s reports.
Dr Roberts said it was clear that Mr Dadd’s depression was not related to the work injury because his depressive illness predated the injury by years. He said that the pre-existing history of a suicide attempt involving two months admission to hospital and utilisation of a firearm would, on a statistical basis, be a significant risk factor for further attempts. He noted the diagnosis of emphysema. He considered that diagnosis and any recent marital problems would be more significant stressors at the time of Mr Dadd’s death than his work injury.
Dr Roberts also considered that Mr Dadd’s capacity for work described by Mr Chianese in his statement was inconsistent with the presence of a major depressive episode. He said the same in respect of the notes which recorded Mr Dadd’s desire to return to work.
He also considered the notes of Dr Symeou and Dr Whetton and considered that Mr Dadd may have failed to comply with taking the anti-depressant medication supplied.
Dr Roberts said that before Mr Dadd’s knee injury he had, for years, suffered from significant psychopathology including a depression of such severity that it would have filled the definition of a major depressive illness with psychosis. He said the psychosis was relevant because of the history of suspicions in regard to his neighbour “which I assume were not based on fact.” He also noted the diagnoses of post-traumatic stress disorder and adjustment disorder and that the “presence of these other psychiatric illness [sic] would enhance the risk of suicide.”
Dr Roberts considered that Dr Teoh would not have been able to form the conclusion he did in his report dated 5 November 2016 if he had seen the material provided to Dr Roberts. He did not consider there was a causal connection between Mr Dadd’s knee injury and his death.
Dr Roberts prepared a further report dated 3 February 2021, in which he noted that Dr Teoh had reviewed additional documents. Dr Roberts set out the DSM V criteria for the assessment of major depressive disorder and said that it would be inconsistent with those criteria that Mr Dadd would be able to work. His report comments on other evidence and confirms the views previously expressed.
He considered that the assertion that the diagnosis of emphysema was not relevant to Mr Dadd’s condition was untenable, relying on a comment attributed to Mr Blok about internet research about suicide. The comment about internet research was, according to his statement, made to Mr Blok by Ms Blades and was not recorded in his notes of conversations with Mr Dadd.
Dr Roberts said that the notes left by Mr Dadd confirmed that his death was intentional and a result of a considered act of self-inflicted injury. There was no psychiatric evidence that his volition was overthrown.
In respect of Mr Blok’s note that Mr Dadd was keen to start seeing mates and taking his life back, Dr Roberts wrote:
“The planning of such activities, to forward looking acts is inconsistent with an acute suicidal risk, secondary to a circumstance, but is not inconsistent with the behaviour that would be of a person for whom suicide had been part of his outlook for years prior to his successful suicide act on 1 March 2013.”
Dr Roberts again stressed the evidence which suggested Mr Dadd’s knee injury was recovering, in particular, Dr Chen’s last report and said:

“’It would be in my opinion, untenable on reasonable psychiatric ground and on grounds of logic, to assert that if Dr Chen’s opinion is assumed that it could be asserted that Mr Dadd’s suicide would be due to his knew in circumstances where his knee was improving, and no further follow up was required for his physical condition.”

And

“In the context of such improvement it would be difficult to understand on grounds of logic and on reasonable psychiatric grounds why a person who is getting better, required no orthopaedic follow up and is being considered to be returning to fulltime pre-injury duties, would because of his physical status, contemplate suicide.”

Dr Roberts’ conclusion in his second report was:
“In summary the deceased in the context of his knee injury improving and requiring no follow up and while planning a return to work meticulously planned his suicide showing consideration to those who would deal with his death including police. This clearly indicates his suicide was planned, intentional and volitional.”

Correspondence regarding the claim

Ms Dadd’s former lawyers wrote to Toll’s insurer on 9 April 2013 and asked if there was any entitlement as a result of Mr Dadd’s death, enclosing a copy of his death certificate. Toll’s insurer responded by a letter dated 18 April 2013 explaining that it had sought information but, without evidence, it was unable to determine if Mr Dadd’s “injury was a substantial contributing factor to his death” so that no compensation was payable. On 21 July 2014, Toll’s lawyers wrote to the former solicitors and asked for any evidence which supported a link between Mr Dadd’s death and his knee injury.
Ms Dadd’s current lawyers became involved in the claim in 2014 and particulars were sought and provided.
Ms Dadd’s lawyers made claim for the death benefit and funeral expenses by a letter dated 23 March 2015. A notice under the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was prepared dated 22 June 2015.
The claim was denied. The insurer said there was no dispute that Mr Dadd suffered a left knee injury on 26 October 2011 but denied that his death arose out of or in the course of his employment or that employment was a substantial contributing factor to his death. It also disputed that his death was consequential on his knee injury. Citing the cause of death in the autopsy report, Toll’s insurer said that there was insufficient medical evidence to support the contention that that cause of death was in any way related to the accepted injury to the left knee. It noted that none of the medical certificates or contemporaneous material diagnosed depression and said that it therefore disputed that Mr Dadd suffered depression as a result of the knee injury. It considered that “sporadic” references to Mr Dadd being distressed about pain were insufficient to establish a psychological condition related to his employment or knee injury.
The insurer said that it lacked information about previous depression or a suicide attempt and did not have notes from the local general practitioner who had treated Mr Dadd. It relied on the statements in the factual investigation to say that there was no evidence that Mr Dadd was depressed at work or placed under pressure. The insurer said it determined that Mr Dadd was working in an appropriate role. It said:
“…we have determined that Mr Dadd's death did not arise out of or in the course or employment and his employment was not a substantial contributing factor to his death. Furthermore, we have determined that Mr Dadd's death did not result from, or was not consequential to, the left knee injury. Accordingly, pursuant to sections 4 and 9A of the Workers Compensation Act 1987, compensation in respect of Mr Dadd's death is denied.”

There is no other dispute or review notice. On 24 April 2017, after previous proceedings were discontinued, Toll’s lawyers wrote to Ms Dadd’s lawyers said that toll also relied on s 14(3) of the 1987 Act.

SUBMISSIONS

The submissions made by counsel were recorded and what follows is a summary.

Mr Goodridge

Mr Goodridge said that there were three categories of evidence – that which predated Mr Dadd’s death, the evidence of Ms Dadd and her daughters and the expert evidence.
Mr Goodridge began by taking me through Dr Phonesouk’s notes in detail to argue that Dr Roberts had misdirected himself by picking out only those entries which suggested that Mr Dadd’s knee injury was improving. He noted that Mr Dadd had injured both knees and said that shortly after each of the entries to which Dr Roberts referred, Mr Dadd’s pain recurred. Mr Dadd’s visits to Dr Phonesouk and Mr Squires were frequent. It was not until April 2012 that Dr Phonesouk noted that Mr Dadd was suffering from depression.
Mr Goodridge argued that a fair reading of the contemporaneous records showed that there was an interrelationship between Mr Dadd’s knee injuries, insomnia and depression. He said that Dr Roberts had not fairly summarised the notes and had omitted significant parts of many entries, recording only the rosiest parts, many of which were taken out of context. Consequently, Mr Goodridge argued, Dr Roberts’ opinion was meaningless. Despite Dr Roberts’ comments, Dr Teoh did have regard to all of the evidence.
Mr Goodridge said that the leading authority on the application of s 14(3) was Holdlen Pty Limited v Walsh[1] (Holdlen) and referred me in particular to Giles JA’s statement at [42]:
“The question for the trial judge was one of fact, the worker’s mental state. It did not turn on a medical concept of insanity. It was a question of fact the trial judge could decide on the evidence of the worker’s injury and its effect, without expert medical evidence, and there was no need for the special experience of an appropriately qualified medical practitioner (cf MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 at 489). That is not to say that expert medical evidence would not have been admissible and valuable, but there was no error in point of law in making the finding in its absence.”
[1] [2000] NSWCA 87.
Mr Goodridge said that Mr Dadd’s mental state was a question of fact and that I did not need the assistance of an expert to determine it, though the expert evidence was admissible.
Mr Goodridge said that the second relevant category of evidence was that from Mr Dadd’s family, which he took me through in detail. One important aspect of that evidence were the descriptions of the difficulties Mr and Ms Dadd had with their neighbours that refuted Dr Roberts’ opinion that Mr Dadd had paranoid ideation about his neighbours.
Ms Dadd, he said, had explained that Mr Dadd was required to take annual leave and the highest evidence on that subject from Toll’s side was that it was probable.
Mr Blok’s notes, Mr Goodridge said, allowed me to draw the conclusion that Mr Dadd was reaching out for assistance and there is no reason not to say that it was because he was very depressed about the knee injury.
Mr Goodridge argued that Dr Whetton’s notes showed that Mr Dadd had a background of struggle which was not enough overwhelm him or to prevent him working or interfere with his life, though he had been treated with medication. Mr Dadd’s past problems had not been enough to or prevent him from working. Mr Goodridge said that perhaps a different person would have reacted differently in the same circumstances. Mr Dadd should be seen as having an “eggshell skull” but that does mean that the causal chain was broken. Mr Goodridge said that the proximate cause of the psychological injury that led to Mr Dadd’s death was the injury to his knees.

Mr Robison

Mr Robison said that the pleaded form of relief sought was a declaration that Mr Dadd suffered a secondary psychological condition as a result of an injury to his left knee injury. He characterised the condition in Mr Dadd’s right knee as a consequential condition. He said there had been no claim that Mr Dadd suffered a psychological condition so that all of the issues needed to be determined. There is no claim that the transfer to computer work led to an injury and had that been made, it might be expected that a defence under s 11A(1) of the 1987 Act might have been raised. He also said that it was not pleaded that the forced annual leave led to the injury but the totality of the evidence suggested that Mr Dadd was happy to go on leave.
Mr Robison said that Toll did not resile from accepting that Mr Dadd suffered a left knee injury but there was evidence that he had suffered a knee injury in the past, as well as psychological issues and that Ms Dadd had not established her onus of proof.
Mr Robison said that the statements of Ms Dadd and her daughters sought to attribute blame to Toll and others and the issue about taking leave was only raised after the event. He submitted that I should give greater weight to the contemporaneous evidence such as the report from Mr Dadd’s treating doctor that he was happy to take leave.
While there is a concession that Mr Dadd suffered previous depression, Ms Dadd said that it was well managed. Mr Robison said that the medical evidence showed otherwise. Ms Dadd said that she observed a change in 2012, but that needed to be viewed in the context of Mr Dadd’s other problems, in particular pain in his knees. Mr Robison stressed that only one knee injury was employment related and that Mr Dadd suffered depression which was antecedent to the index injury and to his employment with Toll. Mr Robison said that the evidence about the incident with the firearm in 2004 was of major significant and he noted that there was no reference to a psychological condition in the certificates prepared following the knee injury. The clinical material showed that Mr Dadd’s knee condition had waxed and waned and Dr Roberts synthesised the material to draw a conclusion that there was overall improvement.
With respect to s 14(3), Mr Robison said that the notes left by Mr Dadd before his death showed that he acted carefully and they were a testament to his character and his love for his family. He planned his death meticulously, taking steps to ensure his wife did not see him and to make sure that the police understood that no one else was involved. The notes were intended to have a practical effect and show he was thinking clearly. In the third note he took time to express his feelings for his family. They did not say that he was unable to deal with the pain from his knee injury.
Mr Robison said that Dr Teoh’s reports he did not provide evidence of causation and that he had not grappled with the history. He provided no reasoning to support his conclusion that Mr Dadd’s knee injury was a substantial contributing factor to his depression and death. Mr Robison said that the opinion in Dr Teoh’s final report was not based on a review of surrounding events and did not fulfil the requirements for expert evidence.

The clinical notes of Dr Phonesouk, Mr Robison said, were not useful because they did not tell the whole story. His submissions again stressed that the injury was to the left knee and, when reminded that there were numerous references to the right knee, Mr Robison said that he was instructed that there had never been a claim in respect of the right knee, though accepted that payments had been made for treatment to that knee.
Turning to the documents in the Reply, Mr Robison said that the information provided to the police and the reference to recent problems which were not said to be related to the injury were part of the reason why I would not be persuaded with respect to causation to the civil standard. The statement of Mr Turner was of limited weight because he was in the dark about Mr Dadd’s mental health issues – he said that Mr Dadd was a “stress head” and the same before and after the injury. Mr Blok said that Mr Dadd seemed happy to take leave.
Mr Robison said that Dr Roberts had look at the material provided to him and formed a view and that he did not need to refer to every piece of evidence he was provided with for his report to be accepted. He noted the references to improvement in Mr Dadd’s knees and said that the report confirmed that even if there was a relationship between knee pain and Mr Dadd’s death, there was a point in time close to his death when things were improving. In those circumstances and taking into account the longstanding depression, he submitted that I would not be persuaded they were related. Mr Robison argued that Dr Roberts’ opinion was more developed than that of Dr Teoh.
Mr Robison argued that Dr Whetton’s reports are the key to understanding Mr Dadd’s pre-existing problems and that his reports contradicted his family with respect to the background. He noted a history of treatment to Mr Dadd’s knees in Dr Symeou’s notes.
Mr Robison said it was necessary to place less weight on the evidence of Mr Dadd’s family about causation and to consider the medical evidence. He said there was a real question as to whether Ms Dadd has discharged her onus. Dr Teoh failed to contend with the prior history. Mr Robison said it was likely that Mr Dadd had a psychological eggshell skull, causing him to overact to stressors which could include pre-existing problems, family issues and the diagnosis of emphysema. Ms Dadd could only succeed if she proved that the twisting injury to Mr Dadd’s knee lead to his death and that was not probable given the passage of time and the trajectory of the condition, particularly in the absence of a connection in the clinical material and the absence of a reference to it in his suicide notes.
Mr Robison said that Toll’s reliance on s 14(3) was a secondary defence referred to the authorities and said that Holdlen was an example of the application of the commonsense test of causation in Kooragang Cement Ltd v Bates[2] (Kooragang) to a claim in respect of death by suicide. He contrasted Roche DP’s finding in Fire and Rescue NSW v Hayman[3] (Hayman) that the worker had lost his ability to control his suicidal ideation with what he described as clear objective evidence that Mr Dadd had planned his death in an intentional and deliberate fashion.
[2] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[3] [2012] NSWWCCPD 66.

Mr Goodridge

In reply, Mr Goodridge said there was clear evidence that Toll’s insurer had accepted that Mr Dadd’s right knee was injured.
He referred to Holdlen and Kooragang and said that that it was not necessary that the knee injury be the only cause of Mr Dadd’s death but only that it was a material contribution.

FINDINGS AND REASONS

I have carefully considered the statements prepared by Ms Dadd, Ms Blades and Ms Rodney. I do not doubt the veracity of their statements or their recollections and the grief and pain they feel is reflected in the statements. Though the Commission is not bound by the rules of evidence, I have not relied on those parts of the statements which are in effect submissions, primarily those parts which comment on Dr Roberts’ reports.
In the analysis which follows I have concentrated mainly on the contemporaneous evidence.

Knee injuries

Mr Robison stressed that the knee injury accepted by Toll was an injury to Mr Dadd’s left knee injury only. That submission is consistent with the s 74 notice but inconsistent with the evidence as a whole.
There is no correspondence from Toll’s insurer about the injury on 26 October 2011. The claim form and the early treatment records refer only to the left knee but as early as November 2011, Dr Phonesouk accepted that Mr Dadd had injured both his knees. He confirmed that opinion in his response to questions from the insurer dated 5 January 2012. From that time Dr Phonesouk’s certificates generally refer to bilateral knee pain or surgery, until shortly before the left knee surgery.
Dr Chen set out the history of the injury in his first report and accepted that Mr Dadd had injured both knees but that the left was initially worse.
Mr Lee’s return to work plan report clearly sets out the history of injury to both knees.
While there may not have been a specific claim in respect of Mr Dadd’s right knee, its omission from the claim form is explained by the history that the left knee pain was initially worse. There is no evidence suggesting that liability for treatment to both knees was not accepted by Toll’s insurer. The inference to be drawn from all of the evidence is that in early 2012, the insurer queried whether the right knee had been injured and that it was satisfied on the basis of Dr Chen’s first report and Dr Phonesouk’s answers to its questionnaire dated 5 January 2012 that it was. Shortly after receiving that information, surgery was undertaken to the right knee first.
While the insurer’s documents refer to a left knee injury, the conduct of the claim shows that was an administrative oversight. The oversight appears to have been carried forward to the s 74 notice but it is clearly contrary to the evidence which shows that the insurer never disputed that Mr Dadd suffered injury to both knees and accepted liability for all treatment.
Mr Robison’s submission that Mr Dadd’s right knee condition was a consequential condition is contrary to the evidence.
The starting point for an examination of the impact of the work injury is therefore an injury to both knees on 26 October 2011 and that both operations were a result of that injury.
Though Dr Symeou treated Mr Dadd for knee pain at various times, the last record which mentions knee pain before the injury was on 28 July 2009. He diagnosed patella-femoral syndrome and recommended exercises. The notes do not suggest that any imaging was undertaken or medication prescribed. There is no evidence to suggest that Mr Dadd had any ongoing problems with this knees before the injury of 26 October 2011.

Dr Phonesouk summarised his treatment of Mr Dadd’s knee injury in his report dated 13 June 2014. His reference to the right knee condition being a consequence of the injury to the left knee can be disregarded because it is inconsistent with the contemporaneous evidence. The important aspect of the report is his description of Mr Dadd’s recovery and rehabilitation as being long and complicated and that Mr Dadd was genuinely trying to return to pre-injury duties but was struggling.
I am satisfied that Mr Dadd had suffered an injury to both knees on 26 October 2011, from which he had not recovered and for which he remained under active treatment at the date of his death. There may have been some improvement in his condition in early 2013 but his knee injury had by no means resolved. On 15 February 2013, Dr Phonesouk certified him fit to work only eight hours per week for the next month.

Psychological condition

Mr Dadd had been treated for a significant psychological condition for many years. It is clear from Dr Whetton’s evidence that he experienced suicidal ideation on past occasions and not only in 2004. The last recorded occasion was in 2009 but there is no evidence of suicidal ideation in the period between that date and the knee injury in 2011.
Dr Symeou continued to prescribe medication from 2009. There is no evidence that Mr Dadd was incapacitated for work at any time between 2009 and the date of the knee injury and he did not see a psychiatrist for treatment during that period. Mr Dadd was taking m

Dr Phonesouk first diagnosed depression in April 2012, three months after Mr Dadd’s right knee surgery. Soon afterward Mr Squires noted that Mr Dadd was stressed and anxious about an assessment by a rehabilitation provider and Dr Phonesouk again diagnosed depression on the following day.
The date of that diagnosis corresponds to Ms Dadd’s evidence that Mr Dadd’s mood deteriorated in mid 2012.
It also corresponds in time with Mr Dadd’s first conversation with Mr Blok. Mr Dadd provided a detailed history of treatment for depression but described his knee injury. Mr Blok specifically noted that Mr Dadd was depressed about not being able to work because of that injury.
Mr Blok did not see Mr Dadd again until January 2013. At that time Mr Dadd spoke about a number of other health problems including the recent diagnosis of emphysema. Importantly, Mr Dadd said that he had lost strength in his legs, he was doing data entry and his knee was blowing up. The notes also describe feelings of stress and confusion. The note for 4 February confirms that Toll wanted Mr Dadd to take annual leave. The notes for 5 February 2013 reflect a markedly different conversation, much of which is at odds with other evidence - for example that Mr Dadd’s friend from Cobar had not spoken to him for a long period.
At roughly the same time, Dr Phonesouk noted no change in Mr Dadd’s DASS scores and “really rough of it all lately” and Dr Chen commented on a recurrence of depression.
In his report dated 13 June 2014, Dr Phonesouk said that Mr Dadd was suffering from adjustment issues with an aggravation of depression. Though he said that Mr Dadd attributed it to his chronic pain and disabilities, there is nothing in the report to suggest that Dr Phonesouk disagreed.
I accept that Dr Phonesouk considered that Mr Dadd’s injury made a material contribution to the aggravation of his psychological condition.
Toll relied on Mr Turner’s statement to say that Mr Dadd’s demeanour was the same before and after the injury. In fact, the statement provides some insight into Mr Dadd’s response to his knee injury. Mr Turner said that Mr Dadd was a “stress head” and was concerned about Toll’s reaction to his absence from or inability to work. He did not enjoy staying at home and wanted to come to work. He “stressed” about things that it was not necessary to stress over. At the time of Mr Dadd’s death, he was on very light duties and had less work to do because he could not get on and off the forklift. Mr Turner had little contact with him for the last six months of employment.
I accept Mr Goodridge’s submission that Dr Roberts was selective in his extracts from Dr Phonesouk’s notes, stressing those which recorded that Mr Dadd’s knee condition was improving and omitting many which referred to setbacks. There had been an improvement at the time of Dr Phonesouk’s last consultation but there had been other improvements which were short-lived in the past.
In the last months of 2012, Mr Dadd had used a walking stick for support and swelling in his left knee had been aspirated. Though Dr Chen did not plan to see Mr Dadd after his examination on 15 February 2013, he noted that Mr Dadd was experiencing muscle fatigue as a result of significant quadriceps strengthening exercises. Toward the end of their treatment, both Dr Phonesouk and Mr Squires noted that Mr Dadd was suffering depression alongside their records of treatment to his knees.
That evidence is consistent with Ms Dadd’s observations. It is also consistent with Ms Blades’ evidence that her father said in February 2013 that he “wanted to be the old me.”
The parties’ references to an “eggshell skull” are references to State Transit Authority of New South Wales v Chemler[4] (Chemler), where Spigelman CJ said[5]:

“In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an ‘eggshell psyche’ principle which, like the equivalent ‘eggshell skull’ principle, is a rule of compensation not of liability. The element of foreseeability required by the law of negligence is not the basis of the ‘eggshell skull’ principle and it can be applied by way of analogy to claims for compensation under the 1987 Act. (See Morgan v Tame (2000) 49 NSWLR 21 esp at [23]-[29] and cases quoted therein. See also Tame v New South Wales (2002) 211 CLR 317 esp at [318] and Nominal Defendant v Gardikiotis (1995) 186 CLR 49 at 68.)”

[4] [2007] NSWCA 249.

[5] At [40].

The fact that Mr Dadd may have been susceptible to developing a psychological injury - or had an “eggshell psyche” - does not preclude a finding that the aggravation of his psychological condition resulted from the injury. The best view of the medical evidence is that any consequential injury is an aggravation or exacerbation of Mr Dadd’s underlying psychological injury and that it arose after and was caused by the knee injury.

Psychiatric evidence

Dr Teoh prepared three reports. To prepare the first he had only the statements from Mr Dadd’s family and Dr Phonesouk’s notes and it is of little assistance – partly because of the questions he was asked and the fact that his answers to those questions were short.
The second report dated 15 April 2018 was prepared with significantly more material. The report is primarily a commentary on that material and a statement that it did not alter his opinion that Mr Dadd was suffering from Major Depression as a result of his knee injury at the time of his death. He considered, based on the history that his past condition was in remission. Importantly, he considered Dr Phonesouk’s notes and drew the conclusion that Mr Dadd became increasingly depressed as a result of chronic pain and physical disability which led to suicidal ideation and his death.
Dr Teoh’s third report was prepared to meet the defence under s 14(3) of the 1987 Act. His conclusion that Mr Dadd’s perception and thought processes were distorted by his severe depressed mood so as to not be an intentional act is consistent with Mr Blok’s notes in January 2013. I accept his opinion as being consistent with the contemporaneous evidence.
Dr Roberts’ reports are unhelpful. As set out above, Dr Roberts quoted selectively from Dr Phonesouk’s notes. I do not accept the basic conclusion he drew which was essentially that Mr Dadd’s knees were improving and his DASS score was staying the same so that any psychological condition was not a result of the knee injury. He relied on Dr Chen’s report which said that he did not expect to see Mr Dadd again to say that it was illogical to say that Mr Dadd’s death was a result of his knee injury. Dr Roberts stressed the entries in the reports which described improvement but did not consider those which showed that the condition waxed and waned.
Other aspects of the evidence were ascribed greater importance by Dr Roberts than is justified by a view of the evidence as a whole. One example is Mr Dadd’s concern about his neighbours poisoning his lawn which was cited by Dr Whetton as a stressor. Both Ms Dadd and Ms Blades described the difficult interactions with those neighbours and, as a factual description of things which occurred in the past, I accept their evidence. Dr Roberts relied on that as evidence of psychosis – because he doubted the suspicions were based on fact - and an increased suicide risk. If it is accepted those things did in fact occur, Dr Roberts’ diagnosis of Major Depression with psychosis is compromised.
Other aspects of Dr Roberts’ opinion are based on conjecture. He relied on Mr Turner’s evidence that Mr Dadd said he did not like to take tablets, Dr Roberts formed the opinion that Mr Dadd was unlikely to have been compliant with his anti-depressant medication. He disregarded Ms Dadd’s evidence about her observation of Mr Dadd taking it.

Based on his reading of the file, Dr Roberts characterised Mr Dadd as someone who had been contemplating suicide for years. He said he would have anticipated a reference to the injury in Mr Dadd’s last notes if it was relevant. One would have expected more reasoned evidence from a psychiatrist in that regard.
It is difficult to discern Dr Roberts opinion in his second report other than to say he did not consider there was a connection between Mr Dadd’s injury and death. He said that there was a pre-existing major depression. Based, among other things on the evidence of Mr Turner and Mr Chianese that they had not observed Mr Dadd to be depressed, Dr Roberts concluded that he was not suffering major depression, omitting to consider the parts of their statements that said they had not worked together in the last six months (Mr Turner) or there was no time for idle interaction (Mr Chianese). His final opinion is that Mr Dadd was unlikely to have suffered from major depression at the time of his death.
Those inconsistencies mean that Dr Roberts’ opinion is not probative.
While he said that meticulous planning of his death meant that Mr Dadd’s death was volitional, Dr Roberts did not explain his statement. It can perhaps be understood to be based on the opinion that Mr Dadd was not suffering a major depressive disorder.

Causation

The s 74 notice raised a number of issues in a manner inconsistent with the legislation. Ms Dadd’s case is that Mr Dadd suffered a secondary psychological injury as a result of his knee injury and that injury led to his death. Therefore questions of whether death arose out of or in the course of employment or whether employment was a substantial contributing factor to his psychological injury or death are irrelevant. There is no dispute that employment was a substantial contributing factor to the knee injury.
The relevant test of causation for a consequential condition is set out in Kooragang and cases which explain it.

Roche DP summarised the facts of Kooragang in Bouchmouni v Bakhos Matta t/as Western Red Services[6] (Bouchmouni). Mr Bates suffered a back injury in 1981. By 1985 his general practitioner reported that he was very distressed because of the delay “in reaching a solution to his back difficulty.” He continued to suffer depression. In 1992, Mr Bates received a letter from the insurer telling him that payments of compensation would cease. He saw his general practitioner, severely depressed, worried that he was unable to pay the doctor and that he would have to sell his house and anxious about his future. Three months later, he died of a heart attack. His general practitioner said that while Mr Bates had heart disease, his condition was exacerbated by the depression and anxiety suffered as a result of the protracted compensation process.
[6] [2013] NSWWCCPD 4.
Roche DP said[7]:
“The test of causation in a claim for death benefits under the 1987 Act is the same as in a claim for weekly compensation: if the death ‘results from an injury’, compensation is payable (s 25 of the 1987 Act). The same test applies to claims for lump sum compensation: a worker who has received an injury that ‘results in a degree of permanent impairment’ (now of more than 10 per cent) is entitled to compensation for that impairment (s 66 of the 1987 Act; Sidiropoulos v Able Placements Pty Ltd[1998] NSWCC 7; 16 NSWCCR 123; Dimovski).”
[7] At [60].

Roche DP said that the trial judge found that Mr Bates suffered an injury to his lower back and died of a myocardial infarction as a result of that injury. He did not find that the worker suffered a psychological injury or that the heart attack was an injury.
In the Court of Appeal in Kooragang, Kirby P said that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”[8]. His Honour said:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[8] At 461G.

Kirby P said[9]:

“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

[9] At 463-464.

In Bouchmouni, Roche DP said:

“It may be seen that if an ‘injury’ sets in train a series of events then, if the chain is unbroken and provides the relevant causative explanation for the incapacity or impairment, compensation is payable (though, in the case of a claim for compensation for permanent impairment, the payment is dependent upon an assessment by an Approved Medical Specialist (AMS)). That does not mean that the condition that provides the relevant causative explanation for the incapacity or impairment is an ‘injury’.
The fact that the worker in Kooragang died from a heart attack did not mean that the heart attack was an ‘injury’. It meant that, on the facts of that case, there was an unbroken chain of causation between the back injury and the death. In other words, the heart attack (and death) resulted from the back injury.”

The evidence which makes sense of the facts is that of Dr Phonesouk. His evidence is to the effect that Mr Dadd suffered a psychological injury in response to the limitations imposed by the injury to his knees. That conclusion is supported by the notes made by Mr Squires and the reports of Dr Chen as well as the notes made by Mr Blok. That contemporaneous evidence is the closest evidence there is to a statement from Mr Dadd.
Having reviewed that evidence, Dr Teoh, a specialist psychiatrist, expressed the opinion that Mr Dadd suffered a psychological condition as a result of his knee injury which led to his death. While Dr Teoh’s opinion is shortly expressed, his reliance on the contemporaneous material, coupled with his training and experience as a psychiatrist, complies with the requirements for expert evidence in the Commission set out in cases such as Hancock v East Coast Timber Products Pty Limited[10].
[10] [2011] NSWCA 11.
The evidence supports the conclusion that there was an unbroken chain of causation between the injury to Mr Dadd’s knees and the aggravation of his underlying psychological condition which led to his death.
There are three other factors which should be considered – the question of “forced” annual leave, the diagnosis of emphysema and the reference to marital problems in Ms Dadd’s statement to the police.
Ms Dadd said in her first statement that Mr Dadd was forced to go on annual leave and believed that he could not have treatment whilst on leave. There is contemporaneous evidence in Mr Blok’s notes that Mr Dadd told him on 4 February 2013 that he had been asked to take leave. There is no evidence from any person from Toll to say that was not so and it is confirmed by the letter to Ms Blades from Ms Hawkins of the WorkCover Authority that it was probably the case. The issue has no bearing on my conclusion because the depressive condition was entrenched by the time he was asked to take leave, supported by Dr Phonesouk’s notes and Dr Chen’s report of 15 February 2013.
The only evidence about the diagnosis of emphysema is in Dr Symeou’s notes – that on 10 January 2013 spirometry showed a pattern consistent with early emphysema. That is consistent with the autopsy report. There is no medical evidence about the prognosis of that condition. While Dr Roberts considered it important, the diagnosis came after Dr Phonesouk noted the presence of severe depression in December 2012. It is possible that the diagnosis contributed to Mr Dadd’s depression but there is no evidence about the diagnosis and its effect on Mr Dadd, merely speculation.
The evidence about marital problems is in the statement of Constable Hohos who quoted Ms Dadd as saying that Mr Dadd had been upset for the past couple of weeks due to marriage problems. Again, the medical evidence shows that Mr Dadd’s condition predated “the last couple of weeks”. Ms Dadd’s evidence is that Mr Dadd’s mood changed significantly in mid -2012. She also said they agreed before she left for work on the date of his death that they would talk that night. In those circumstances it is not surprising that that discussion was what she told the police about when Mr Dadd’s death was discovered. The only evidence available suggests any marital problems were a result of Mr Dadd’s withdrawal in mid 2012 at a time when the medical and contemporaneous evidence shows his depression increased.
Those factors do not impact on the conclusion formed above that Mr Dadd’s depressive condition resulted from the injury and led to his death.

Section 14(3)

Toll relies on a 14(3) of the 1987 Act provides:

“14 Conduct of worker etc (cf former s 7 (2), (3))
…
(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.”

Counsel’s submissions on the section were short and it was described as a secondary argument.
The section was considered by the Court of Appeal in Holdlen. The trial judge found that an orthopaedic injury had resulted in psychological sequelae and made a real contribution to the worker’s marital breakdown, change in lifestyle and financial circumstances which “led to a desperate act which he committed whilst overcome with depression.” Giles JA said that there was ample evidence on which the conclusion could be based. The employer argued that the trial judge failed to give effect to s 14(3).
Giles JA said that, historically, the inquiry as to the sanity of a worker who had taken his own life was regarded as going to causation because suicide as an intentional act, would break the chain of causation unless the worker’s mental state was such that it could not be regarded as intentional. His Honour said:
“Section 14(3) is not easy to construe. The word ‘injury’, used twice, must be used in two different senses, notwithstanding that it is defined in s 4. On one view, the first injury is a physical condition short of death caused by an injury as defined, and the injury as defined must not be an intentional self-inflicted injury. On this construction s 14(3) says nothing about death by suicide in a case such as the present, because it could apply only if the 14 November 1994 injury was an intentional self-inflicted injury. On another view, the first injury is an injury as defined and the second injury is an act of injuring; this appears to have been the view taken in Bird v Australian Iron & Steel Pty Ltd. On this construction s 14(3) can arguably apply to death by suicide in a case such as the present, because the death of a worker by suicide could be said to be caused by an intentional self-inflicted act of injuring.”[11]
[11] At [33].

Giles JA said that while that inquiry was important historically, it may not be necessary now because “an intentional act even of the person wronged may not break the chain of causation”[12] and because describing the inquiry as one into insanity may mislead. His Honour said:

“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.”[13]
[12] Referring to March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 and Medlin v State Government Insurance Commission (1995) 182 CLR 1.
[13] At [38].

His Honour said:

“The question for the trial judge was one of fact, the worker’s mental state. It did not turn on a medical concept of insanity. It was a question of fact the trial judge could decide on the evidence of the worker’s injury and its effect, without expert medical evidence, and there was no need for the special experience of an appropriately qualified medical practitioner (cf MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 at 489). That is not to say that expert medical evidence would not have been admissible and valuable, but there was no error in point of law in making the finding in its absence.”[14]

[14] At [42].

In Simeon Wines Limited t/as Buronga Hill Winery v Bobos[15] (Bobos) the Court of Appeal declined to grant leave to appeal a finding by a judge of the Compensation Court that a worker’s suicide was a consequence of the worker’s illness rather than the exercise of free will, relying on Holdlen. Sheller JA said:

“At trial, Simeon Wines’ submissions examined in detail the circumstances at the time that the deceased committed suicide and the suggestion that he had put his affairs in order and planned his suicide. This would account for an apparent improvement in his mood. It was submitted that this material demonstrated that his suicide was premeditated and planned (that is deliberate and intentional) and that he was in command of his faculties. There was nothing to suggest that he was a suicide risk. Simeon Wines submitted that there was no evidence that the deceased’s volition was overborne by any psychiatric condition resulting from an injury covered by the Act. At trial it appears that no oral evidence was given by the medical experts. Instead, various reports were put before the Judge and he reached the conclusion described in the passage from his judgment that I have quoted. This was a finding of fact. The appeal is against that finding, even though dressed as an argument of alleged insufficiency of evidence such as to raise a question of law; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.”

[15] [2004] NSWCA 342.

Roche DP considered the section in Hayman, where the claim for the death benefit was disputed on the basis that death did not result from an injury but from family relationships and world events and relying on s 14(3). The Arbitrator had determined that death resulted from the injury. On appeal, the employer sought to argue that that finding was in error in circumstances where the suicide was an intentional act and there was no evidence that the worker’s volition had been overborne.
Roche DP noted that the argument had not been raised at arbitration and much of the decision turned on that issue. Having considered Holdlen and Bobos, Roche DP said:
“I am satisfied that, as a result of his depressive disorder, which had been caused by the injury to his right arm, Mr Hayman lost the ability to control his suicidal ideation, which developed into suicidal intent, and that his power of volition was seriously compromised, that is, it was so overborne that, though the suicide was a deliberate act, it was not an intentional act. This finding negates the application of s 14(3) and the defence based on that provision fails.”

I have found that there was an unbroken chain of causation between the injury to Mr Dadd’s knees and his death. The authorities set out above support that finding on the basis of the evidence.
Mr Robison said that there was evidence that Mr Dadd planned his death in a careful and deliberate fashion. That does not necessarily lead to a conclusion that the act was an intentional self-inflicted. I prefer the evidence of Dr Teoh that his severe depressive symptoms had distorted his judgement and perception.

CONCLUSION

For those reasons, I find

(a)    Mr Dadd’s death on 1 March 2013 resulted from a psychological injury which was a consequence of the injury to his left and right knees on 26 October 2011;
(b)    Ms Dadd was partially dependent on him for support at the date of his death, and
(c)    No other person was wholly or partially dependent.

I order Toll to pay the following compensation to Ms Dadd:
(a) pursuant to s 25 of the 1987 Act, the death benefit of $489,750, and
(b) pursuant to s 26 of the 1987 Act, funeral expenses of $9,000.

Catherine McDonald
MEMBER

31 March 2021