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

1. 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.

2. 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.

3. 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.

4. 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).

5. 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…