Fire & Rescue NSW v Hayman - [2012] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Fire & Rescue NSW v Hayman [2012] NSWWCCPD 66
APPELLANT:		Fire & Rescue NSW
RESPONDENT:		Linda Gay Hayman
INSURER:		Employers Mutual Ltd
FILE NUMBER:		A1-11118/11
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:		30 July 2012
DATE OF APPEAL DECISION:		14 November 2012
SUBJECT MATTER OF DECISION:		Death benefits; whether issue raised at arbitration; whether issue not raised at arbitration may be raised on appeal; suicide; whether chain of causation broken by intentional act; s 14(3) of the Workers Compensation Act 1987; whether deceased’s will so overborne by his circumstances that his act should not be regarded as an intentional act; application of principles in Holdlen Pty Ltd v Walsh [2000] NSWCA 87; 19 NSWCCR 629
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stephen Lee Legal
Respondent:	Whitelaw McDonald
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 30 July 2012 is confirmed. The appellant employer is to pay the respondent applicant’s costs of the appeal, as agreed or assessed.

BACKGROUND

Paul Hayman (the deceased) committed suicide on or about 11 or 12 September 2008. He had been a senior fire fighter with Fire & Rescue NSW (the appellant) for 25 years. In the course of his career, he had received commendations and recognition for meritorious service and courageous actions in the course of his 25-year career with the appellant. He greatly enjoyed his career and took great pride in it.
Mr Hayman had injured his right arm in the course of his employment with the appellant on 13 December 2001 and aggravated that injury on 5 June 2002. His injury had a marked effect on him and resulted in the loss of his career when he was medically discharged on 11 November 2004. It also prevented him from engaging in a range of personal and recreational activities. He felt ashamed and embarrassed that he could not even do basic activities such, as pack up camping gear or domestic chores.
Though he obtained alternative work, and remained on voluntary payments of weekly compensation, he suffered significant financial problems because of his loss of career with the appellant.
The appellant’s insurer disputed the claim by Mrs Hayman (the applicant) for compensation for herself and her two children on the ground that the deceased’s death was caused by family relationships and/or world events and did not result from the original work injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang)). In the alternative, if it was found that the death resulted from the injury, compensation was not payable because the death “was an intentional self-inflicted injury” under s 14(3) of the Workers Compensation Act 1987 (the 1987 Act).
At the arbitration, counsel for the appellant, Mr Perry, submitted that the facts were in stark contrast to the facts in Holdlen Pty Ltd v Walsh [2000] NSWCA 87; 19 NSWCCR 629 (Holdlen). In that case, a worker committed suicide after he suffered a leg injury and had received treatment over a period for significant anxiety and depression relating to the loss of his job, money and female company. The present case showed that Mr Hayman had periods of ups and downs and periods of complete psychological recovery. Mr Perry said that the Commission was left to speculate why Mr Hayman took his life.
After reviewing the evidence and the parties’ submissions, the Arbitrator accepted that Mr Hayman’s physical injury caused him to become withdrawn and depressed. Even though there were aspects of his life from which he drew pleasure, the difficulties with his arm continued.
The Arbitrator said he gave “careful consideration to the causal connection which needs to be established between the injurious event and the suicide” (Reasons at [41]). He accepted that the physical disability and pain that Mr Hayman suffered in his right arm, and then into his left arm, continued and would have worsened over the years. He also accepted that the losses Mr Hayman suffered as a result of his injury led to “morbid ruminations” and to a “major depressive illness”. He concluded that Mr Hayman’s depressive illness, which led to his suicide, resulted from the injury at work in December 2001 and June 2002.
The appellant has appealed this determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties consented to the matter being determined on the papers. However, as I required oral submissions on issues the parties had not dealt with in their written submissions, I listed the matter for teleconference on 12 November 2012 when Mr Perry represented the appellant and Mr Edwards of counsel represented Mrs Hayman.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions made at the teleconference on 12 November 2012, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding a formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     determining that Mr Hayman’s suicide resulted from an injury sustained by him in the employment of the appellant, in the absence of a finding that the suicide was other than intentional and broke the chain of causation;
(b)     determining that, even if there was a chain of causation between the work injury and Mr Hayman’s major depressive illness, Mrs Hayman was entitled to compensation in the absence of a determination that the suicide was other than an intentional act, and
(c)     determining that Mrs Hayman was entitled to compensation when, on her case, Mr Hayman had suicided and his death was the result of an intentional self-inflicted injury.
In substance, the appellant seeks to ventilate one issue on appeal, namely, whether the Arbitrator erred finding that the causal link between the work injury and the death had been established in circumstances where the suicide was an intentional act and there was no evidence that Mr Hayman’s power of volition had been overborne.

SUBMISSIONS

Appellant’s submissions

The appellant’s submissions, prepared by Mr Perry, may be summarised as follows.
All the evidence was consistent with Mr Hayman having made a determination to end his life. That is, his death was self-inflicted. In these circumstances, to avoid the effect of s 14(3), Mrs Hayman “required evidence that the deceased’s carbon monoxide poisoning was other than the result of his own wilful act”.
Dr Klug, consultant psychiatrist qualified by Mrs Hayman, said that Mr Hayman had “used carbon monoxide poisoning in his car as the method of suicide” and this was “language signifying intention”.
Dr Klug added:
“My opinion is that, on the balance of probabilities, Mr Hayman’s suicide has substantially been caused by his arm injury and its consequences. It is, therefore, likely that he lost the ability to control his suicidal ideation and that this developed into suicidal intent. I believe his power of volition was likely to have been seriously compromised at that point.” (emphasis included in original)
In Holdlen, the trial judge found:
“Since it seems to me that the deceased’s power of volition was seriously compromised, I find that he was insane at the time of his death, so that his mind was so unhinged as to dethrone his power of volition, and that this condition was casually [sic: causally] related in a relevant sense or materially contributed to by the injury the deceased had sustained in November 1994, which required constant treatment and which had compromised his life.” (see [39] of the Court of Appeal’s decision)
This finding was critical to the conclusion that the widow’s claim was not affected by s 14(3). In the present case, there was no such finding by the Arbitrator and there is no basis in the evidence for such a finding. The passage quoted at [17] above is not reproduced in the Arbitrator’s decision. The passage “does not infer a view that the deceased’s action was other than intentional”. Dr Klug expressed a contrary view. Though Dr Klug’s “belief” was that Mr Hayman’s “power of volition was very likely to be seriously compromised at that point”, Dr Klug at no point expressed the opinion that the “compromise” had reached a level where the power of volition had been overcome.
Though Dr Klug used the expression “the balance of probabilities”, it was for the Arbitrator to make a determination, since s 14(3) was in issue. The Arbitrator did not make any finding such as that made by the trial judge in Holdlen.
Mr Perry then quoted the following statements by Giles JA in Holdlen:
“37 Secondly, describing the inquiry as one into insanity may mislead. Insanity is a concept of varying content, and the true inquiry (if the validity of any such inquiry be assumed) is into the worker's mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in contexts not involving insanity that the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor’s intentional act. In the context of duress, for example, Lord Simon said that duress ‘deflects, without destroying, the will of one of the contracting parties’ (Director of Public Prosecutions for Northern Ireland v Lynch (1975) AC 653 at 695), and Lord Scarman took as one of the elements of duress ‘pressure amounting to the compulsion of the will of the victim’ (Universe Tankships Inc of Monrovia v International Transport Workers Federation (1983) 1 AC 366 at 400). Lord Scarman said that the classic case of duress is ‘not the lack of will to submit but the victim’s intentional submission arising from the realisation that there is no other practical choice open to him’ (ibid). Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result.
38 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.” (emphasis added by counsel in his submissions)
He concluded that, in the present case, the Arbitrator’s findings do not go beyond finding that Mr Hayman suffered from a major depressive illness and that that illness led to his suicide. Suicide by definition is a self-inflicted injury.

Mrs Hayman’s submissions

Having referred to Holdlen, the Arbitrator was alive to the issue that an intentional act would break the chain of causation. It could not be said that the Arbitrator was not aware of the following issues:
(a) there had to be a link between Mr Hayman’s arm injury and the depressive illness, and
(b) for the applicant to succeed, she had to establish that the causal connection remained unbroken by an intentional act.
While the Arbitrator did not specifically say that the suicide was other than an intentional act, it is clear from his decision that he regarded the causal connection as requiring the applicant to establish a loss of or destruction of volition.
The appellant’s submission that Dr Klug’s evidence should be read down, because he did not state that Mr Hayman’s power of volition had been overcome, ignores the doctor’s opinion that Mr Hayman had “lost the ability to control his suicidal ideation”.
This was not a case where the Arbitrator was required to decide between medical opinions that were in conflict as to the product of the depressive illness, nor whether the act of suicide was intentional in the terms of “volition”.
The appellant cannot complain that the Arbitrator found the necessary causal link without specifically stating that the causal link required a finding that the suicide was not a self-inflicted injury.
The appellant’s specific complaint, namely, that the Arbitrator failed to find that the “suicide was other than intentional and broke the chain of causation”, recognises that for the Arbitrator to find the causal connection between the injurious event and the suicide, he had to determine whether the chain had been broken by an act that was intentional. Having regard to the attention given to the question of volition, it is apparent that the Arbitrator made an implicit finding that there was no break in the causal connection. That is, there was no intentional act.
In the alternative, if it is found that the Arbitrator was remiss in failing to specifically find that the causal chain had been broken, then the proper order is that the matter be remitted to the Arbitrator for further decision.

DISCUSSION AND FINDINGS

It is first necessary to consider the way the appellant presented its case at arbitration. All references to the transcript below are, unless otherwise stated, to the transcript of 16 May 2012.
There is a fundamental obstacle to the appellant’s argument on appeal: it was never put to the Arbitrator. At the arbitration, Mr Perry opened his submissions by stating that the Arbitrator’s “sole task” (T33.13) was to determine if the applicant had established that her husband’s death “resulted from an injury to his right elbow” (T33.17).
He added (at T34.20) that there was “a dispute about the proposition that the Applicant has established that the death in 2008 resulted from those injuries”. He took the Arbitrator to Kooragang and submitted (at T34.31) that Mrs Hayman had “failed to discharge in this case that she has established a link sufficiently for you to say, in a commonsense way, that the death resulted from the injury to the elbow”.
Mr Perry then took the Arbitrator (from T35) to the immediate circumstances of the death and said (at T38.31) that Mrs Hayman had to establish that Mr Hayman’s “mental anguish was the result of the injury to the elbow”. He then referred to the evidence that he said supported the proposition that Mr Hayman was not depressed (T42.12; T43.7–13) and to evidence of non-work related causes of the suicide.
At T47.5, Mr Perry said that the Arbitrator’s task was to “determine whether … the chain of causation has been established on the balance of probabilities” and that the evidence fell “well short of that”.
In response to Mr Perry’s submissions, counsel for Mrs Hayman, Mr Edwards, said that Dr Klug provided evidence that the initial injury to the arm caused Mr Hayman to become depressed and led to the thought processes that caused Mr Hayman to suicide. He noted that Dr Klug was the only psychiatrist in the case and that his opinion had not been swayed in cross-examination.
In reply, Mr Perry said (at T59.21) that what was in dispute was the proposition that, as a result of the injury to the arm, Mr Hayman developed depression. He submitted that the contrast between this case and Holdlen was a stark one. After referring to the facts in Holdlen, Mr Perry said that, in contrast, Mr Hayman had a history of ups and downs between 2001 and 2008, and periods of what appeared to be “complete psychological recovery” (T61.13), and it was a matter of speculation as to whether it was the elbow that “caused the mental anguish” (T61.19).
As can be seen from the summary of the parties’ submissions at the arbitration, Mr Perry never submitted that, to succeed, Mrs Hayman had to prove that her husband’s mind was so unhinged as to dethrone his power of volition. The issue presented for determination was whether the death resulted from the injuries to Mr Hayman’s right arm. The Arbitrator determined that issue.
The Arbitrator noted (at [3]) that the appellant denied liability on the basis that Mr Hayman’s suicide was not as a result of any work injury and that it relied on the grounds in its s 74 notice. He then summarised the evidence and the parties’ submissions. Under “Findings and Reasons”, he referred extensively to Holdlen and, in particular, to the judgment of Giles JA where his Honour said that an act is not brought about by the volition of the actor where the action may be so overborne or influenced by other circumstances that it is not to be regarded as an intentional act. The Arbitrator also referred to his Honour’s observation that the worker’s mental state was one of fact for the trial judge to be decided on the evidence.
Against this background, the Arbitrator said that Dr Klug supported a causal link between the injuries to Mr Hayman’s right arm and the act of suicide and that the appellant tendered no contrary medical evidence. He reviewed Dr Klug’s evidence in detail and (at [34]) quoted the following evidence from the doctor:
“It is clear that Mr Hayman was likely to have been suffering from a chronic major depressive disorder. This is a major mood disturbance, which bears a high statistical relationship to increased levels of morbidity and mortality by suicide. When a suicide occurs there is a high probability that it has been caused by this illness. Mr Hayman’s chronic and worsening physical problems interfered enormously with his life. This injury led to his medical retirement from the New South Wales Fire Brigade and his inability to engage in a variety of personal and recreational activities. He had a large ego investment in his physical capabilities. His injury, therefore, represented a great loss to him and is likely to have caused his major depressive disorder.”
After reviewing Mrs Hayman’s evidence, the Arbitrator said (at [41]) that he gave careful consideration to the causal connection that needed to be established between the injurious event and the suicide. While Mr Hayman may have had moments in his life between 2001 and 2008 that gave him pleasure, it was clear that the physical disability and pain he suffered in his right arm, and then his left arm, continued and worsened. He suffered great loss that led to his morbid ruminations and ultimate major depressive illness.
The Arbitrator found (at [41]) that Mr Hayman’s major depressive illness, which led to his suicide, resulted from the injury he suffered at work for the appellant in December 2001 and June 2002, and that the death was causally related to the injury to his right arm. In other words, the Arbitrator dealt with the issues presented by Mr Perry.
Having dealt with the arguments presented, it is not open to the appellant to allege on appeal that the Arbitrator erred in not dealing with a case not presented. This issue arose in Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111, where McColl JA observed at [30]:
“a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Snedden [2010] HCA 14 at [88].”

Though her Honour was dealing with a submission before the Court of Appeal that a Deputy President had erred in not dealing with an issue that had not been argued before him, the principle is the same in s 352 appeals from Arbitrators to a Presidential member. Though Mr Perry referred to Holdlen in his submissions to the Arbitrator, nothing like the argument advanced on appeal was put to the Arbitrator and it is not open to argue that the Arbitrator erred in not dealing with it.
Mr Perry’s submissions on this point at the teleconference on 12 November 2012 may be summarised as follows:
(a) s 14(3) was “in play” at the arbitration because it was in the s 74 notice and had not been abandoned. Therefore, the Arbitrator had to deal with it;
(b)     the question of “intention” was not one for him to argue because, by definition, suicide is the intentional taking of one’s own life;
(c)     the case proceeded before the Arbitrator on the basis that an intentional act was not in issue because the applicant had to prove causation;
(d)     he at all times challenged the proposition that the applicant had discharged the onus;
(e)     the Holdlen issue was raised by the Arbitrator at [26] and [27] of his decision;
(f)      the applicant bore the onus of establishing that the suicide was not an intentional act, and
(g) the absence of any reference to s 14(3) in the submissions was not a matter of note because the Arbitrator was abreast of the issue and, having looked at it, did not make the finding necessary to found an entitlement.
While it is correct that the s 74 notice referred to s 14(3), that does not mean the issue was “in play” at the arbitration. The raising of an issue in a s 74 notice means that the dispute raised may be referred to the Commission for determination (s 289A of the 1998 Act). The issue may or may not remain alive at the arbitration, depending on the arguments presented and the way the case is conducted. When experienced counsel conducts a case in a certain way, an Arbitrator is entitled to rely on that conduct in his or her determination of the case.
Mr Perry’s submissions at the arbitration left no room for doubt that the Arbitrator’s “sole task” was to determine if the applicant had established that her husband’s death “resulted from an injury to his right elbow”. He did not rely on s 14(3) nor make any submissions that suggested that the applicant should fail because of that provision.
The submission that the question of “intention” was not one for counsel to argue was surprising. While suicide is the intentional taking of one’s own life, that does not mean that it was not an issue that had to be argued. Intention only became relevant if the appellant pressed its defence under s 14(3). Given that Mr Perry made no mention of s 14(3) in his submissions to the Arbitrator, it is difficult to see how it can be said the Arbitrator erred in not referring to it.
Contrary to Mr Perry’s submissions at the teleconference on appeal, the case did not proceed on the basis that, because the applicant had to prove causation, an intentional act was not in issue. As noted above, the causation issue was presented by Mr Perry as whether the applicant had established that the death had resulted from the undisputed injury to the elbow.
Mr Perry did challenge the proposition that the applicant had discharged the onus of proof. However, he did so in the context of whether the death had resulted from the accepted physical injury, not in the context of whether the death was an intentional act under s 14(3) (see [31] to [36] above).
It is correct that the Arbitrator referred extensively to Holdlen (at [26] and [27]) and to the passage relied on by the appellant on appeal. However, he did not do so in the context of determining whether Mr Hayman’s power of volition had been dethroned. That was never put to him as an issue he had to determine.
While there is no dispute that the applicant bore the onus of proof, the issues to be proved to discharge that onus depended on the issues the parties presented. The issue argued by Mr Perry did not raise, either directly or indirectly, intention or s 14(3) and the applicant did not have to address, and did not address, an issue not argued. Similarly, the Arbitrator did not deal with that issue and did not refer to the evidence from Dr Klug dealing with intention.
I do not accept that the Arbitrator was “abreast” of the “intention” issue, or that he looked at it. The connection between Mr Hayman’s arm injury and his death was not broken by an intentional act unless s 14(3) applied. In that situation compensation would not be payable “in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”. The appellant never submitted at the arbitration that s 14(3) prevented Mrs Hayman from recovering compensation and the Arbitrator never directed his mind to it. Mr Perry did not address on the issue and the Arbitrator’s failure to deal with it was therefore not an error.
On the face of it, it appears that, either a tactical decision was made to run the appellant’s case a certain way at the arbitration, without relying on s 14(3), or submissions on s 14(3) were not made due to an oversight. Either way, the appellant is bound by the conduct of its counsel at the arbitration (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]).
This conclusion is reinforced by Mr Perry’s cross-examination of Dr Klug. Consistent with Mr Perry’s submissions to the Arbitrator, the whole of the cross-examination was directed (unsuccessfully) to whether Mr Hayman’s suicide had been caused by events other than his work injury and not one question was put about “intention” or about Dr Klug’s evidence about Mr Hayman’s power of volition having been seriously compromised. In light of the cross-examination, Mr Perry’s submission on appeal that he did raise the intention issue at the arbitration is unsustainable and more than a little surprising.
Consistent with the above analysis, I do not accept the submission by Mrs Hayman that, for her to succeed, the Arbitrator regarded it as necessary for her to establish that the causal connection remained unbroken by an intentional act. There is nothing in the decision to support that submission. The Arbitrator dealt with the issues in the submissions put to him and those submissions said nothing about an intentional act breaking the chain of causation.
Moreover, it is not correct that, for an applicant to succeed, the causal connection must remain unbroken by an intentional act. An intentional act will often be part of the chain of causation (Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 at [10]). If a worker, acting on the advice of a competent doctor, intentionally undertakes a course of treatment that makes the worker’s condition worse, he or she will be entitled to compensation for the worsened condition (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321; Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 at 529–530).
The question therefore arises as to whether the appellant is entitled to raise the “intention” and s 14(3) issue for the first time on appeal. Whealy JA (Beazley and Sackville JJA agreeing) considered the principles governing new issues on appeal in Harmer v Hare [2011] NSWCA 229. His Honour noted (at [150]) that a party is normally bound by the conduct of his or her case at first instance (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, at 71).
However, a point may be raised for the first time on appeal where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1, at 6–7), or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 498).
The new issue in the present case is not one that could not possibly have been met by evidence at the arbitration. However, at the teleconference Mr Edwards did not argue that he needed to call additional evidence. While I doubt that it is in the interests of justice to allow the appellant to raise the new issue for the first time on appeal, given the state of the evidence, I do not believe it involves any prejudice to the applicant and, as she has not objected, I propose to deal with it.
In Holdlen, Giles JA said (at [33]) that s 14(3) was not easy to construe because the word “injury” is used twice and the sub-section could have two meanings. On the first meaning, the sub-section said nothing about death by suicide because it could only apply if the injury to the deceased’s leg (in this case, the injury to Mr Hayman’s arm) was an intentional self-inflicted injury. On the second meaning, the sub-section could arguably apply to death by suicide, because the death of the worker by suicide could be said to have been caused by an intentional self-inflicted act of injuring.
His Honour said it was not necessary to decide if s 14(3) applied because, if applied to death by suicide, the trial judge’s finding that the deceased had “lost the ability to control his suicidal impulses” and his “power of volition was seriously compromised” negated its application.
The appellant seems to have conducted the case before the Arbitrator on the basis of the first meaning of s 14(3) referred to by Giles JA. As the injury to Mr Hayman’s arm was not self-inflicted, the only issue before the Arbitrator was whether his death resulted from that injury. His finding that it had was open to him and has not been challenged.
Assuming that the second meaning of s 14(3) applies, his Honour said that suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Whether that is the situation in the present matter is the issue now argued on appeal.
The only evidence touching on this issue is from Dr Klug (see [17] above). His opinion that Mr Hayman “lost the ability to control his suicidal ideation and that this developed into suicidal intent”, and that Mr Hayman’s “power of volition was likely to have been seriously compromised at that point” is persuasive evidence that, at the time he took his life, Mr Hayman’s deliberate act of suicide was the product of a will so overborne or influenced by his circumstances it should not be regarded as an intentional act.
The submission that Dr Klug’s evidence “does not infer a view that the deceased’s action was other than intentional” and that the doctor expressed the contrary view is untenable nonsense. Read in its proper context, Dr Klug’s evidence that Mr Hayman’s power of volition was likely to have been “seriously compromised” can only mean that it was so “overborne or influenced” by his circumstances that the suicide should not be regarded as an intentional act breaking the chain of causation.
Significantly, Dr Klug expressed his opinion in language that is virtually the same as the finding made by the trial judge in Holdlen. As Dr Klug’s evidence is uncontradicted by any medical evidence called by the appellant, and was not eroded in cross-examination, it provides compelling evidence for a conclusion that Mr Hayman’s suicide was not an intentional self-inflicted injury within s 14(3).
Indeed, Dr Klug’s evidence is much stronger than the evidence that was called from the psychologist in Holdlen, which was merely to the effect that the work injury, and subsequent psychological and physical difficulties, was a substantial contributing factor in the death. The psychologist said nothing about whether the deceased’s mind was so unhinged as to dethrone his power of volition.
It follows that I do not accept Mr Perry’s submission that Dr Klug at no point expressed the opinion that the “compromise” had reached a level where the deceased’s power of volition had been overcome. In any event, the authorities do not require the evidence to go that far and Mr Perry is confusing the findings made in Holdlen, on the one hand, with the evidence in support of it, on the other.
As decided in Holdlen, if s 14(3) applies, what is necessary is evidence that the deceased’s will was so “overborne or influenced by [his] circumstances” (that is, “seriously compromised”) that, though the act (of suicide) is deliberate, “it should not be regarded as an intentional act” (Holdlen at [38]). Dr Klug’s unchallenged evidence comfortably satisfies that test.
This conclusion is consistent with the Court of Appeal decision in Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342. In that case, the trial judge referred to Holdlen, and s 14(3), and said that 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. He then found, in a passage reproduced by the Court of Appeal at [25], that the suicide was “a consequence of his depressive illness rather than an exercise of his own free will” and the depression had been precipitated by the events of the work journey and was a material matter in its continuation. Accordingly, he regarded the worker’s death as being a consequence of the injury.
In an application for leave to appeal, Simeon Wines submitted that the evidence did not support this conclusion. The evidence included evidence from Professor Burrows that the deceased suffered from post-traumatic stress disorder and major depression. Though the deceased was recovering after the injury, the Professor said that the disinhibiting and depressive effects of alcohol could have contributed to him taking his own life. The Professor added that it was well recognised that, with a depressive disorder, there was always a risk of suicide.
At the trial, Simeon Wines referred to the evidence that the deceased had put his affairs in order and planned his suicide, and submitted that this demonstrated that his suicide was premeditated and planned, that is, it was deliberate and intentional. It said there was no evidence that the deceased’s volition was overborne by any psychiatric condition resulting from an injury covered by the Act.
Sheller JA (Santow JA and Young CJ in Eq agreeing) rejected these submissions and refused leave to appeal. His Honour noted that the trial judge’s finding was one of fact and that, having referred to Holdlen, the trial judge was aware of the test to be applied.
Mr Perry further submitted that Dr Klug used the expression “balance of probabilities” and it was for the Arbitrator to make a determination. Again, this was a surprising submission. It is common practice for medical experts in the Commission to express their opinions in terms of the balance of probabilities and there is nothing wrong with that practice. Expert evidence may be given on factual questions of causation, even where the opinion is expressed in language that is employed in legal analysis in causation (Allianz Australia Ltd v Sim [2012] NSWCA 68 Allsop P (Meagher JA agreeing) at [34] [35], Basten JA at [118] – [121] (Meagher JA agreeing)). It goes without saying that the ultimate decision on liability is for the Commission.
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.
It follows that, considering the new issue on appeal on its merits, and assuming, for the purpose of the appeal, that the Arbitrator erred in not dealing with the issue of intention and s 14(3), the evidence from Dr Klug comfortably satisfies the test in Holdlen and the Arbitrator’s error makes no difference to the outcome.

CONCLUSION

I am greatly troubled by the conduct of this appeal, which involved issues of great sensitivity for all concerned, and an even higher level of stress than is normally associated with death claims. The appellant’s counsel ran the arbitration on a very clear and discrete ground. To then appeal the Arbitrator’s decision and run a different case, but at the same time vigorously argue that the new issue had been run at the arbitration, was unsatisfactory. Insurers are reminded that they have an obligation to conduct litigation in the Commission as model litigants. The conduct of the appeal fell well below the standard required of a model litigant.

DECISION

For the reasons given in this decision, the Arbitrator’s determination of 30 July 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent applicant’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
14 November 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE