Quinnell v Mars Maintenance Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Quinnell v Mars Maintenance Pty Ltd [2021] NSWPIC 452
APPLICANT:	Ruby Rose Quinnell
FIRST RESPONDENT:	Mars Maintenance Pty Ltd
SECOND RESPONDENT:	Lucy Jane Quinnell
MEMBER:	Glenn Capel
DATE OF DECISION:	11 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Death claim; deceased committed suicide; dispute as to whether there was a causal connection between the deceased’s back injury and his depressive state, and whether the deceased’s death was caused by an intentional self-inflicted injury; determination of dependency, apportionment and payment of death benefit; Raulston v Toll Pty Ltd, Kumar v Royal Comfort Bedding Ltd, Holdlen Pty Ltd v Walsh discussed and applied; Held - causal connection established; deceased’s death was not caused by an intentional self-inflicted injury; apportionment and orders for payment of the death benefit and funeral expenses.
1. The deceased worker, Dean Gregory Quinnell, died on 25 October 2018 as a result of injury sustained during the course of his employment with the respondent on or about 31 August 2018. 2. Ruby Rose Quinnell and Lucy Jane Quinnell were partly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. 4. The deceased’s death was not caused by an intentional self-inflicted injury. 5. The first respondent is liable for the payment of lump sum compensation and funeral expenses.
ORDERS MADE:	6. The lump sum compensation of $791,850 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) $395,925 to Ruby Rose Quinnell, and (b) $395,925 to Lucy Jane Quinnell. 7. The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the Workers Compensation Act1987 to the dependants as follows: (a) $395,925 to Ruby Rose Quinnell, and (b) $395,925 to Lucy Jane Quinnell. 8. The first respondent to pay the applicant $7,140 in respect of funeral expenses pursuant to section 26 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

The deceased worker, Dean Gregory Quinnell, was 54 years old at the time that he suffered an injury to his back on or about 31 August 2018 in the course of his employment as a carpenter with Mars Building Pty Ltd (the first respondent). He consulted his general practitioner, Dr Hamilton, on 10 September 2018 and he was certified unfit for work from
10 September 2018 until he was cleared to return to his pre-injury duties on 9 October 2018. On his return to work, he was allocated light work as a traffic controller and spotted abseilers [sic].
Liability was accepted by Employers Mutual Ltd (the insurer), and payments of weekly compensation and medical expenses were made from 10 September 2018 until
8 October 2018. The deceased died on 25 October 2018 as a result of injuries sustained when he jumped or fell from a building at his place of work.

The solicitor for Ruby Rose Quinnell (the applicant) submitted a claim in respect of the death of a worker of behalf of the applicant and Lucy Jane Quinnell (the second respondent) on
18 December 2018, seeking payment of the death benefit and funeral expenses.
On 31 July 2019, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the deceased had suffered an injury and that his employment was a substantial contributing factor. It disputed that the deceased’s death had resulted from an injury and claimed that it was caused by self-harm. It cited ss 4, 9A, 14(3) and 25 of the Workers Compensation Act1987 (the 1987 Act).
The applicant’s solicitor served a further notice of claim with additional evidence on the insurer on 7 August 2020.
On 8 February 2021, the insurer issued a further notice pursuant to s 78 of the 1998 Act, disputing that the deceased’s death had resulted from an injury arising out of or in the course of employment with the first respondent. It disputed that there was a causal connection between the deceased’s death on 25 October 2018 and the work injury on 7 September 2018. It cited ss 4, 9A and 25 of the 1987 Act.
The applicant filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (the Commission) on 10 June 2021. She described the injury and cause as follows:
“1. On or about 31 August 2018, the deceased worker fell and injured his low back at work. As a result of the injury to his low back, the worker developed either:
(a)a consequential depressive condition, or:
(b)an aggravation to a pre-existing depressive condition;
which so disrupted his state of mind that he suicided on 25 October 2018 when
he jumped from a building.
2. In the alternative to 1 above, that on 25 October 2018, in the course of his employment, the worker fell from a building and sustained multiple injuries which caused his death.”
The applicant seeks apportionment of the lump sum death benefit of $791,850 in accordance with ss 25(1)(a) and 29 of the 1987 Act, orders authorising payment of the lump sum pursuant to s 85A(1)(a) of the 1987 Act, and the payment of funeral expenses pursuant to
s 26 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

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

ISSUES FOR DETERMINATION

10.At the commencement of the arbitration hearing, counsel agreed that the primary liability issues were whether there was a causal connection between the deceased’s death on
25 October 2018 and the work injury on 7 September 2018 and whether the deceased’s death caused by an intentional self-inflicted injury. This terminology reflects the issues that identified in the dispute notice issued by the insurer.

11.The issue whether there was a causal connection between the deceased’s death on
25 October 2018 and the work injury on 7 September 2018 involves two aspects.
12.Firstly, whether there was a causal connection between the deceased’s back injury and his psychological condition, and secondly whether the deceased’s death was caused by an intentional self-inflicted injury. Whilst this description differs from that identified by both counsel, I am satisfied that their submissions are adequate and deal with these issues.
13.Accordingly, I propose to deal with the following issues in dispute:

(a) whether there was a causal connection between the deceased’s psychological condition and the back injury on 7 September 2018 – ss 4 and 4(b)(ii) of the 1987 Act;
(b) was the deceased’s death on 25 October 2018 caused by an intentional self-inflicted injury – s 14(3) of the 1987 Act;
(c) whether there were any persons wholly or partially dependent on the deceased – s 25 of the 1987 Act;

(d) apportionment of the lump sum of $791,850 payable – s 29 of the 1987 Act;
(e) orders in relation to payment of the compensation – s 85A(1)(a) of the 1987 Act, and

(f) the first respondent’s liability in respect pf the payment of funeral expenses – s 26 of the 1987 Act

EVIDENCE

Documentary evidence

14.The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application and attached documents;
(b)    First Respondent’s Reply with attachments;
(c)    Second Respondent’s Reply;
(d)    Application to Admit Late Documents received on 21 July 2021;
(e)    Application to Admit Late Documents received on 15 September 2021, and
(f)    Application to Admit Late Documents received on 28 October 2021.

Oral evidence

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

REVIEW OF EVIDENCE

Statements of Ruby Rose Quinnell

16.The applicant provided a statement to the Police on 29 October 2018. She indicated that her father and mother separated when she was about three years old. Her father had a relationship for about 12 years with Samantha King, but it ended three months after they married. The applicant was about 10 years old at that stage. When she was about 13 or 14 years old, her father began a relationship with Cheryl Minter. They were together for about 10 years. In 2014, her paternal grandmother died, and her father took this “really hard”. Cheryl Minter passed away about a year later from cancer, and this also affected her father. He had been dating Tracey Willis, who he had dated many years ago, for about three months. They were not living together or planned to do so.
17.The applicant stated that her father was always a heavy drinker, and this was the main reason why her parents separated. She recalled that at times when her father was drinking heavily, he would cry. He had many problems and when he was drinking heavily, they would impact on him, but he would never talk about them. His drinking did not appear to affect his work. He would start drinking as soon as he arrived home and he would go to bed drunk. He had also smoked cannabis for many years on weekends, but he was not a heavy user. The deaths of his mother and Cheryl Miniter upset him greatly and caused him to continue drinking heavily.
18.The applicant stated that she spoke to her father once a week on the telephone, and over the last few months, he talked about work pressures and the issues that he had with his boss, Noel Dowde, who was always ringing him and telling him what to do. Her father did not like this.
19.The applicant stated that her father injured his back in late August 2018. He was off work on compensation for six weeks and was prescribed Valium. He returned to work on light duties. She warned him to be careful drinking whilst on medication, but he laughed it off.
20.The applicant stated that she called her father and enquired about his back on
24 October 2018. He sounded like he was sober, but the conversation was short, and he did not sound very happy. She invited him and Tracy to her son’s christening, but he said that he did not think that he would bring her because he was thinking of ending the relationship. He informed her that Tracey had wanted to move in, but he was happy with his life, he had been on his own for a long time and he preferred it that way. She invited him to dinner, but he declined. He agreed to come over on the Saturday to see them and fix her gate.
21.The applicant stated that her father would often say that if anything happened to him, she and her sister would receive his superannuation. He would often send photos on his phone when he was drunk and reminiscing. She did not think much of this until he took his own life.
22.The applicant could not explain why her father committed suicide. He took the death of his mother and Cheryl very hard. He continued to be a heavy drinker and he smoked cannabis. He was also taking medication for his back injury.
23.In a statement dated 19 February 2019, the applicant stated that as far as she was aware, she and her sister were the only people who dependent for support on her father. She confirmed that the deceased provided financial support including child support payments. He paid for orthodontic treatment and extra expenses. They had regularly stayed with their father every second weekend from the time that she was 6 or 7 years old, and he regularly visited them.
24.The applicant stated that her father’s financial support continued after she left school and he helped with her bills such as registration, insurance and car maintenance and other living expenses such as food, holiday costs and the cost of moving. He only used cash and he would give her $50 or $100 at a time to help her out.
25.The applicant stated that she had been in a relationship since 2012, she had two children, and they lived in rental accommodation. His assistance during her maternity leave in 2016 and when she returned to work was very helpful. He also assisted with house maintenance issues. His support continued up to the time of his death and she expected that he would have continued to provide ongoing support if he had not died.
26.In a statement dated 1 April 2019, the applicant stated that she had been employed at Centrelink since 2012 and she had only recently returned to work following her maternity leave. She advised that she could rely on her father for financial help when she needed it and when her money was short.
27.The applicant stated that they were not worried about the deceased’s drinking. He would come home from work and go to the club across the road. He would be in bed by 8.30 pm. She stated that they were having trouble coming to terms with the cause of her father’s death because many years earlier, one of her father’s friends had committed suicide. Her father had always said that he thought suicide was a coward’s way out and he had no sympathy for that sort of death. She could not reconcile the fact that he left no suicide note. He had plans to do things with them in the future and she knew of no abnormal personal issues.
28.In her final statement dated 20 June 2020, the applicant advised that her father told her that he had hurt his back at work. She booked an appointment for him at the Glebe Road Medical Practice. This must be incorrect, and presumably the applicant meant the Cooks Hill Medical Practice. The receptionist told her that he had not attended the practice for 20 years. He saw the doctor, had physiotherapy and took Valium for muscle spasms. Her father only went to the doctor if he had a serious problem and he rarely took time off work. After his back injury, she could tell by the way that he was walking and standing that he was in pain. He also said that his back was painful.
29.The applicant stated that she kept on contact with her father. He was unsettled and he was not himself after his injury. She suspected that he was worried that his injury would affect his ability to work as a carpenter. When she last saw him on 14 or 15 October 2018, he was not as bright as usual, and he did not stay long. When she rang him on 24 October 2018, he sounded like he was down, and he had not been drinking. He informed her that things were at an end with Tracey, and he did not want that level of commitment.

Statements of Lucy Jane Quinnell

30.Lucy Jane Quinnell provided a statement on 19 February 2019. She advised that her father would leave envelopes with cash at her grandparents' house. He was involved in their lives and they lived with him every second weekend. He provided ongoing financial support for expenses or if she was short of money. He bought her a refrigerator and kitchen items and he assisted with repairs. She had dinner at his house once a week.
31.In her statement dated 1 April 2019, Ms Quinnell confirmed that she had been employed as an aged care nurse for two years. She relied on her father to assist with payment of her bills when she needed extra funds and he preferred to use cash.
32.Ms Quinnell advised that when she last saw her father, he was in good spirits. He informed her that he had hurt his back and had taken time off work. She was deeply affected by his death and she had sought treatment. She spoke to her father for the last time on the Monday before his death. They made plans to have dinner at his place on the Thursday night, which was the day that he died.
33.In her final statement dated 19 June 2020, Ms Quinnell indicated that the applicant had told her that their father had hurt his back and was taking time off work. When she saw him after his injury, he told her that he was taking medication for his back pain. He complained that he was bored and lonely because he was not at work. He also mentioned that he did not want to continue his relationship with Tracy.

Statement of Tracy Ann Willis

34.Tracy Ann Willis provided a statement to the Police on 29 October 2018. She advised that she had been in a relationship with the deceased for two years when she was 20 years old. They remained friends and would see each other from time to time. They rekindled their relationship and were together for about 12 months after the deceased’s marriage broke up. The deceased had a relationship with Samantha King for three years and then he had an on and off relationship with Cheryl Minter for about 10 years. His mother died in 2014, and Cheryl later died of cancer. Both of these deaths seriously affected the deceased and he never really got over their deaths.
35.Ms Willis stated that they started up a relationship again about six months before the deceased’s death. They would see each other a couple of times each week. She confirmed that the deceased would often get drunk on weekends, and although he drank after work, he would be in bed by 8.30 pm because he would get up at about 5.00 am. He smoked cannabis, but he was not a heavy user.
36.Ms Willis stated that the deceased was stressed about work because he had a lot to do. His boss constantly rang him and asked when he was coming back to work.
37.Ms Willis stated that the deceased was given Valium for his back injury and he complained that this was playing tricks with his brain. She told him that he needed more treatment, and he said that he would, but he did not do so.
38.Ms Willis stated that the deceased had told her that he had tried to hang himself about two years earlier after Cheryl had died. He told her that he could not do it because of his children. She had arranged to stay at the deceased’s house on 14 October 2018. When she called to tell him she was coming, he told her not to come because he was in bed. He informed her that he had tried to overdose. He had drunk alcohol, taken five Valium and smoked some cannabis. He could not tell her why he had done this. He was in a strange mood and she could see that he was depressed. She wanted to help, but she did not want to upset him. She told him to get some professional help, but he said that he was fine.
39.Ms Willis stated that on 23 [sic] October 2018, the deceased sent her a text and asked her for help. She called him in the morning on 24 [sic] October 2018 when he was at work, and they discussed his text. He would not respond to her questions, so she asked him to come over to her house that night. Although the deceased agreed, he did not go and he did not contact her again.
40.Ms Willis claimed that on the previous Sunday night, they had spoken about buying a house together and getting married. He had even asked her children if they were happy for him to live with them. She stated that the deceased was distant when they spoke about things and he was elusive. He was depressed and feeling low, but she did not think that he was suicidal.

Statement of Paul Mantach

41.Paul Mantach, the applicant’s solicitor, provided a statement on 11 August 2020. He provided details of a telephone conversation that he had with Ms Willis on 13 July 2020.
Ms Willis was not prepared to provide a statement because she did not want to be involved after the way that she had been treated by the deceased’s daughters.
42.Ms Willis told Mr Mantach that the deceased was in a lot of pain following his back injury. He walked differently and held his back a lot. His mental state was not good, and he had past issues. He was under pressure at work, and he felt pressured by his boss. He was concerned that he was going to lose his job. The deceased was worried that he would not be able to do the heavy aspects of his job as a carpenter because of his back. She stated that there were days when the deceased could not get out of bed because of his back.

43.Mr Mantach indicated that he called Ms Willis again on 15 July 2020. He read her his statement and she confirmed that she did not want to become involved.

Statement of Noel Dowde

44.Noel Dowde, the maintenance manager, provided a statement to the Police on
15 November 2018. He advised that the deceased never came to work early and always finished work on time. He noticed that the deceased would come to work smelling of alcohol, but he worked normally, and he did not appear to be affected. He told him to reduce his drinking.

45.Mr Dowde stated that shortly afterwards, the deceased mentioned that he was having problems with a girlfriend. She wanted to move in, but he was not ready for that sort of commitment. He commented that Cheryl’s death was still affecting him, and he had tears in his eyes. He stated that the deceased seemed to change his drinking habits between March 2018 and July 2018. He lost weight and did not smell of alcohol.
46.Mr Dowde indicated that the deceased injured his back in September 2018 and was off work for four to five weeks. On 8 October 2018, the deceased was cleared to return to work, but Mr Dowde put him on light duties comprising traffic control and spotting abseilers [sic] from 7.00 am to 3.30 pm from Monday to Friday for a few weeks to ensure a full recovery.
47.Mr Dowde stated that the deceased appeared to have reverted to his past ways. He did not smell of alcohol, but his mannerisms were the same and he had a red face. When he spoke to the deceased on 24 October 2018, he did not seem to be himself. He gave one word answers and was very quiet. Another carpenter told him that the deceased appeared to be down, and he was going to sort some issues out with his girlfriend.
48.Mr Dowde stated that he believed that the deceased committed suicide by running and jumping off the building, because his body was too far out into a carpark.
49.Mr Dowde provided a further statement on 26 March 2019. He advised that the deceased normally did not come to work before his normal work starting time of 7.00 am. He indicated that there was no reason why the deceased would have been on the roof or elsewhere in the building. Further, he did not instruct the deceased to come to work before his usual starting time.

Statement of Senior Constable Dean Parbery

50.Senior Constable Dean Parbery provided as statement on 2 November 2018. He confirmed that he responded to a call at 6.20 am on 25 October 2018 and sighted the deceased’s body in the car park. He described the scene of the accident and noted that the deceased was in his work uniform.
51.The Senior Constable commented that when the Detectives spoke to the applicant, she said "Dad killed himself didn't he". He noted that the next of kin stated that the deceased had made comments that it would be easier if he was not alive, however they did not think that he would take matters into his own hands. The identity of the family member who said this to the Detectives was not disclosed and it is not apparent from any of the statements.
52.The Senior Constable reported that the Police attended the deceased’s residence and found the deceased’s superannuation documents and his mother's memorial funeral pamphlet on the dining table. He stated that it appeared that the deceased jumped off the top floor.

Statement of Detective Senior Constable Daniel Kennedy

53.Detective Senior Constable Daniel Kennedy provided a statement on 20 January 2019. He confirmed that he attended the scene of the accident at 7.10 am on 25 October 2018. The deceased was fully clothed in his work uniform with a brown leather belt. He was informed by the ambulance officers that they received a call out to the scene at 6.18 am and they arrived at 6.22 am. It was thought that the deceased had been there for over an hour because he was cold to touch. He spoke to a resident who heard a loud noise between 4.00 am and 5.00 am.
54.The Detective Senior Constable stated that the laundry door on level 5 was jammed shut, and it took some force to open it. There was no evidence to suggest anyone had been on the balcony or on the balcony railing. On level 6, there was no evidence to suggest anyone had been on the balcony or on the railing.
55.The Detective Senior Constable stated that he found an esky with the deceased’s mobile phone, wallet and keys in the kitchen area. There was one unmade bed with pillows and blankets, and it appeared to have been slept in. When questioned, Mr Dowde advised that sleeping on site was not permitted. There was no suicide note.
56.The Detective Senior Constable stated that Mr Dowde informed him that the deceased had been a bit depressed, was drinking a lot and he was fighting with a new girlfriend.
57.The Detective Senior Constable stated they proceeded to the rooftop on level 7 via the stairs. He advised that the rooftop was long and flat with no railing. There was a narrow walkway towards the rear of the building that could only accommodate one person. Mr Dowde indicated that there was no reason for the deceased to be on the rooftop. The abseiling crew were the only people allowed on the rooftop.
58.The Detective Senior Constable stated that he could see the deceased’s body on the ground below and he formed the view that the deceased had run and jumped from this point. His body was too far from the building for him to have fallen or jumped from a standing position. The deceased’s locked vehicle was located in Hunter Street, and there was no suicide note.
59.The Detective Senior Constable stated that Mr Dowde told him that the deceased was meant to start work at 7.00 am and finish at 3.00 pm, and it was highly unlikely that he would turn up to work early.
60.The Detective Senior Constable stated that he and Detective Senior Constable Irwin attended upon the applicant’s house at 1.30 pm. When the applicant saw them, she said "Oh my god, dad’s killed himself". She told Detective Senior Constable Irwin that the deceased had been a feeling down lately after a workplace injury, and this had brought back a lot of feeling about his late mother and Cheryl [sic].
61.The Detective Senior Constable stated that they attended the deceased’s residence and found that it was very untidy, with unwashed dishes and cockroaches running around the house. There were a number of empty beer bottles and very little food in the fridge. There was no suicide note, but they found the obituary of the deceased’s mother on the top of a cupboard. This looked out of place and it appeared that it had been looked at recently.
62.The Detective Senior Constable stated that he believed that the deceased had been suffering from depression, and the unclean state of his residence added weight to this. He felt that the deceased had been staying on site and had been sleeping in the bed. He considered that the deceased accessed the rooftop and then ran and jumped to his death sometime between 4.00 am and 5.00 am. He did not believe the deceased was working at the time of his death as it was too early and there was no reason for the deceased to be on the rooftop.

Documents

63.There are a number of documents in evidence. The deceased’s death certificate and the examination report completed for the Coroner confirm that he died as a result of multiple injuries sustained in the fall.

64.The deceased’s CBUS Superannuation statement disclosed funds of $47,157.19 and Death benefit of $140,000 as of 30 June 2018. His daughters were identified as beneficiaries. There are also payslips that confirm his income. The tax invoice from Pettigrew Family Funerals shows that the applicant paid the sum of $7,140 in November 2018.
65.In a statement dated 21 June 2012, the applicant confirmed that she instructed her solicitor to contact there potential dependents, namely her uncle, Craig Quinnell, her mother, Helen O’Donohue (nee Quinnell), Samantha King and Tracy Willis.
66.Ms O’Donohue provided a statutory declaration on 26 June 2021 and indicated that she was not dependent for support upon the deceased at the time of his death and she did not claim dependency. The other parties did not respond.

Clinical notes of Cooks Hill Medical Centre

67.The clinical notes of the Cooks Hill Medical Centre commence on 2 August 2000, although the deceased was prescribed medication on 9 June 1999, and conclude on 9 October 2018.
68.On 10 September 2018, Dr Finch reported as follows:

“sudden onset left back pain when working last week. slipped forwards whilst carrying tools. sore at time, but much, worse next day. tender left L 1/2 paraspinal area, nil referred pain. palpable muscle spasm - imp- soft tissue strain L 1/2. for no work, NSAIDs, Valium, warned of side effects. physio for dry needling. review 1 week”

69.On 17 September 2018, Dr Finch reported as follows:
“still a lot of spasm, prefers standing, unable to sit in surgery. took Valium few days, effective for spasm but really bombed him otherwise. lndocid not effective. recommend physio for spasm. review 1 week.”

70.On 25 September 2018, Dr Finch reported as follows:

“improving physio twice weekly, less spasm not needing Valium. still unable to sit for longer than 10 minutes. unable to work next 2 weeks and then review.”

71.On 9 October 2018, Dr Hamilton reported as follows:
“doing well with Px to cont ex regime as per ph call with Dr McNamara light duties available tried to rtw today but no clearance missed appt here to get this yesterday ‘forgot’
Examination:
good rom I/s spine
good core strength”

72.Dr Finch certified that the deceased had no current work capacity due to a left lumbar back strain sustained on 31 August 2018 from 8 October 2018. She prescribed physiotherapy and Valium.
73.On 9 October 2018, Dr Hamilton certified that the deceased was fit for his pre-injury duties, but he still recommended physiotherapy, rest and analgesia.
74.The clinical notes contain a report from John Slade, physiotherapist, dated 21 September 2018. He confirmed that the deceased had left sided low back pain following a fall up some stairs two weeks earlier. The deceased initially experienced a twinge, but when he woke the following day, he had significant pain. The physiotherapist diagnosed non-specific lower back pain with potential facet joint and muscular involvement. He reported that the deceased had experienced some improvement in his range of motion following treatment, but he expected that he would have difficulty returning to work the following week unless on suitable duties.

Pathology report and report of Dr Dauncey

75.The pathology report showed that the deceased’s blood sample had quantities of alcohol, Delta-9-THC Acid, Diazepam and Temazepam. The screening test detected Benzodiazepines, LC QTOF MS SCREEN, Nordiazepam and Oxazepam.
76.Dr Dauncey, a pharmacologist, reported on 12 June 2019. She indicated that Benzodiazepines included Nordiazepam, Oxazepam, Diazepam And Temazepam, so it was most likely that the deceased had taken a therapeutic dose of Diazepam (Valium). The blood levels showed a lower than therapeutic concentration of Diazepam, probably indicating that the deceased took a tablet (5mg) several hours before his death.
77.Dr Dauncey commented that the absence of Delta-9-THC in the screen indicated that the deceased had not smoked cannabis in the hours before the incident, but the presence of THC-Acid in the quantitative analysis was indicative of cannabis use in the hours or days before he fell. The concentration was low, meaning that he was not a heavy user of the drug.
78.Dr Dauncey stated that the concentration of alcohol was just over the legal driving limit, but there was insufficient information as to when he was drinking to comment on its significance. The doctor noted the presence of bath salts or Spice, which was a new type of designer drug used was an alternative to marijuana. She observed that the exact chemical composition and toxicology had not been determined, but there was some evidence that some of the synthetic cannabinoids were responsible for psychoactive and adverse physical effects.

Reports of Dr Dinnen

79.Dr Dinnen reported on 14 April 2020. He commented on the difficulty in properly assessing a condition post mortem but noted that there is no medical evidence of treatment or diagnosis of depressive illness in the deceased’s past. Therefore, he relied heavily on the accounts of Ms Willis and the deceased’s daughters. He thought that Lucy’s issues with significant depression suggested a genetic component and given the statements that described recurrent depressive responses in the past, the doctor thought that it was likely that the deceased had a predisposition to depressive illness. The comments of Dr Dauncey supported his view that alcohol and Valium had very little to do with the deceased’s suicide.
80.Dr Dinnen noted that the deceased’s work was very important to him, so a back injury causing incapacity would be a very significant added stressor to add on to his depressive vulnerability. Another factor was the instability of his close relationships through the years, as described in Ms Willis' statement. The doctor thought it likely that the deceased was somewhat emotionally isolated in regard to deep and meaningful long-term relationships.
81.Dr Dinnen noted that the history that the deceased was unable to stand or sit for any lengthy period suggested more significant damage to the spine than just a muscle sprain. In his experience, it took some time for the extent, severity and chronicity of a back injury to be determined. The deceased had pain as a result of the injury, and he was treated conservatively. There was no indication that the injury would be more severe and more prolonged than had appeared to be the case initially.
82.Dr Dinnen noted that the work capacity certificate dated 25 September 2018, indicated that it would take four to six weeks before the deceased could return to work, but it appeared that this timeframe was not followed. The doctor thought it likely that the deceased was eager to return to work and did so even though he had ongoing back pain and disability. He was on light duties and so the extent of his capacity was recognised by Mr Dowde.
83.Dr Dinnen stated that it is more probable than not that there was a causal connection between the deceased’s back injury and his death. He did not consider the prescribed dose of Valium would have contributed to the deceased’s depressive mind state and suicide.
84.Dr Dinnen considered that it is more likely than not on the balance of probabilities that there was a material causal connection between the deceased’s back injury and the depressive illness, which was presumed to have caused his suicide. This was on the background of other stressors.
85.Dr Dinnen stated that the deceased was suffering from a depressive illness and was in "disrupted state of mind", causing him to suicide. He was not comfortable with the legal notion of will being overcome by illness, because he believed that there was always an element of intent in any suicide. He explained that in a depressed state of mind, everything that would normally be regarded as matters that could be dealt with loomed larger and would cause the person to feel that there was no hope and no future in living. He stated that impulsivity was a very potent factor in many suicides. No one could have predicted the deceased’s suicide.
86.In his report dated 6 July 2020, in response to a series of questions put to him by the applicant’s solicitor, Dr Dinnen agreed that it was more probable than not that the very significant added stressor of the deceased’s back injury materially contributed to the aggravation, acceleration, exacerbation or deterioration in his depressive illness or depressive vulnerability, and he was affected by this at the time of his death.
87.Dr Dinnen agreed that there was a close temporal link between the deceased’s back injury and his death. The doctor noted the deceased had significant time off work after his back injury and he was determined to work even though he was still symptomatic. The doctor felt that, having regard to the family’s comments, part of the aggravation was that he was presumably apprehensive about his ability to keep working, and his fear and the expectation that this would become apparent to the respondent.
88.In his final report dated 26 May 2021, in response to a series of questions put to him by the applicant’s solicitor, Dr Dinnen agreed that matters that related the deceased’s low back injury included his low back symptoms and a concern that he would be unable to continue to work in his lifelong trade as a carpenter and this either aggravated a pre-existing depression or resulted in a depressive condition developing in a susceptible person. Consequently, the deceased’s state of mind was so disrupted that he committed suicide.

Reports of Dr Kaplan

89.Dr Kaplan reported on 2 February 2021.The doctor indicated that the deceased was diagnosed with a soft tissue injury, which was essentially a lumbar muscle strain, and the pattern of recovery within a few weeks with minimal treatment was consistent with this. The doctor noted that the deceased returned to work on light duties and there were no reports that he was having difficulty coping with these duties or could not have progressed to full duties.
90.Dr Kaplan observed that there were anecdotal accounts that the deceased felt under pressure from Mr Dowde, but Mr Dowde made no mention of this in his statement, so no conclusions could be drawn, and it was unlikely to be significant.
91.Dr Kaplan noted that there was a lengthy history of alcohol and cannabis abuse that increased after the deceased’s mother died in 2014, and by January 2018, his drinking was evident to those around him. He stated that an attempt to bring this under control failed and his abuse was out of control.
92.Dr Kaplan indicated that the role of cannabis in causing mood disorders, psychosis and impulsive behaviour was well documented, and the use of Spice added an extra element, making severe mental disturbance, including suicidality, more likely.
93.Dr Kaplan noted that there was a pattern of unsuccessful relationships that appeared to be getting progressively briefer and unsatisfactory. The deceased intended to break off his relationship with Ms Willis. The doctor noted that suicidal planning was expressed after his mother’s death in 2014 but he did not proceed. He also took an overdose in October 2018. The doctor commented that successful suicide was often preceded by previous suicidal intention and planning. He observed that the applicant had said that her father had mentioned suicidal ideas some time before his death. The day before his death he was withdrawn and was planning to end his relationship.
94.Dr Kaplan stated that the information showed that the deceased had been depressed for four years, if not longer, as a result of the loss of mother and close relationships, and substance abuse. His substance use indicated a pattern of addiction with loss of control worsening before his death. The withdrawal from his last relationship seemed to have occurred when suicidal ideas were already present. Despite the good relationship with his daughters, he needed an adult partner and he saw no future for himself.
95.Dr Kaplan concluded that there was not a material causal connection between the work-related back injury and the depressive illness that was presumed to have caused the suicide. He did not specifically comment on the views of Dr Dinnen.

96.In his report dated 27 July 2021, Dr Kaplan noted that Dr Dinnen made no mention of the numerous issues discussed in his report, notably drug abuse and relationship problems.

APPLICANT’S SUBMISSIONS

97.The applicant’s counsel, Mr Stanton, submits that the applicant gave the Police details about her father, including the history of his relationships, the fact that he had always been a heavy drinker but was able to work, his cannabis use on weekends and his drinking after work.
98.Mr Stanton submits that Mr Dowde told the Police that the deceased was a competent worker who never came to work early. Mr Dowde spoke of the deceased’s drinking problems and how he had counselled him, and between March and July 2018, the deceased appeared to change his habits. He submits that this is important because there is evidence that prior to his back injury, the deceased’s alcohol issues were under control.
99.Mr Stanton submits that Mr Dowde indicated that the deceased had suffered a slight back strain. According to the physiotherapist, Mr Slade, the deceased felt a twinge, but on the following day, he had significant pain. He noted complaints of non-specific low back pain and he felt that the deceased could only perform light duties. His report was reasonably proximate to 9 October 2018, when the deceased was cleared for his pre-injury duties.

Mr Stanton submits that the applicant stated that her father was unsettled after he injured his back and was worried that it would affect his ability to work. Lucy also mentioned that her father was bored and lonely because he was not at work, and that he wanted to end his relationship with Tracy.
Mr Stanton submits that Ms Willis confirmed that the deceased never got over the deaths of his mother and Cheryl. She spoke about his drinking and cannabis use, which was similar to Mr Dowde’s evidence, stress about the work he had to do, the constant calls from Mr Dowde, the medication and its affects, and the need for him to get more treatment.
Mr Stanton submits that Mr Mantach indicated that Ms Wills had told him that the deceased was in a lot of pain, he walked differently and held his back a lot. Whilst this is hearsay, the rules of evidence do not apply in the Commission. One could have confidence that what
Mr Mantach recorded was an accurate record of what Ms Willis heard and saw. Ms Willis said that the deceased was not in a good state, and he was worried that we would not be able to do his job. Mr Dowde never said that the deceased was at risk because of his drinking.
Mr Stanton submits that there was a change when the deceased injured his back. He had symptoms and he feared that he would not be able to return to work and perform his full duties. This was playing on his mind because he was talking to Ms Willis about it.
Mr Stanton submits that Mr Dowde confirmed that the deceased returned to work on light duties, even though he was cleared for full work. He commented that the deceased had changed back to his old ways, and whilst he did not smell of alcohol, his mannerisms were the same and his face was red. He was giving one word answers and was quiet, so it is clear that Mr Dowde observed a change in the deceased’s mental state.
Mr Stanton submits that Ms Willis’ evidence shows that the more significant problem for the deceased was his work. The thought of not being able to work caused his mental state to deteriorate, and this is what Mr Dowde observed.
Mr Stanton submits that the deceased had a great deal of misfortune with the deaths of his mother and Cheryl, and he had a lifetime of relationship problems, but he was still able to work, socialise with and financially assist his daughters. It is unlikely that any conflict with Tracy was more significant than his issues in the past.
Mr Stanton submits that Detective Senior Constable Kennedy noted that the deceased was in his work clothes, so this meant that he had travelled to his workplace to do work. He located an esky with the deceased’s mobile phone, wallet and keys. This is consistent with what tradesman usually do on a worksite. The Detective Senior Constable concluded that the deceased had run and jumped off the rooftop. However, whether the deceased ran or fell is a matter for forensic investigation.
Mr Stanton submits that in the alternative, it is possible that the deceased fell in the course of his employment. He was at work, had an esky with sustenance, and he was in his work clothes. Mr Dowde said that it was unusual for the deceased to be at work before 7.00 am. His body was found after 6.00 am, but he could have been there since 5.00 am. Whilst it might have been out of character, a person can still go to work early, and this is what the deceased did. The circumstances of why and how he fell is conjecture. He may had had an accident and his death might have occurred in the course of his employment.
Mr Stanton submits the Court of Appeal in Holdlen Pty Ltd v Walsh[1] 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”[2].
[1] [2000] NSWCA 87; (2000) 19 NSWCCR 629 (Holdlen v Walsh).
[2] Holdlen v Walsh, [38].
Mr Stanton submits that Dr Dinnen questioned the legal notion of being overcome by illness and he believed that there was always an element of intent in any suicide. However, in the circumstances of this matter, the deceased was so overborne and influenced by his depressive illness that his suicide was not intentional, so s 14(3) of the 1987 Act does not apply. All that needed to be shown is that the applicant’s back injury made a material contribution to his death[3].
[3] Holdlen v Walsh, [13].
Mr Stanton submits that Dr Dinnen concluded that the deceased’s physical injury materially contributed to his death, and that is all that is required at law. There is no need to prove an injury in terms of ss 4 and 9A of the 1987 Act. The initial injury set in train a causally related sequence of events. The facts in this case are similar to those in Holdlen v Walsh.
Mr Stanton submits that Dr Dauncey indicated that the applicant had only taken a therapeutic doses of Valium and he had not smoked cannabis in the hours before his death. His blood alcohol level was difficult to assess because of his tolerance to alcohol. The doctor stated that the substances consumed were of no consequence.
Mr Stanton submits that Senior Constable Parbery was not present when Detective Senior Constable Kennedy informed the applicant about her father’s death, so the Detective Senior Constable’s description of the applicant’s words is more reliable.
Mr Stanton submits that Dr Kaplan overlooked Ms Willis’ comments regarding the deceased’s ongoing back problems and the fact that he was on light duties. The workplace injury brought back memories of the deaths of the deceased’s mother and Cheryl, and
Dr Kaplan did not consider this. This diminishes his reasoning process.
Mr Stanton submits that Dr Kaplan did not refer to the difficulties that the deceased was having at work and made no comment about Ms Willis’ observations. The doctor noted that the deceased was already suicidal before he had relationship problems with Ms Willis.
Mr Stanton submits that Dr Kaplan focussed his attention on the deceased’s relationship issues, but the deceased had coped with more serious partnership issues in the past and his breakup with Tracy was not his first. The doctor overlooked the deceased’s back injury and his work concerns.

Mr Stanton submits that the death benefit should be split equally between the applicant and her sister. They were both financially and physically dependent on the deceased. They are of similar ages and circumstances with no special needs. The applicant should also be reimbursed for the funeral expenses that she paid.

SECOND RESPONDENT’S SUBMISSIONS

The second respondent’s counsel, Mr Barter, adopts the submissions of the applicant’s counsel. He submits that Dr Kaplan acknowledged that if the deceased committed suicide, this resulted from a depressive condition, a view held by Dr Dinnen.
Mr Barter submits that if one was to assume that the depressive illness was already in existence as a result of the death of the deceased’s mother and his alcohol intake, then there was an aggravation of pre-existing depression caused by the back injury in terms of s 4(b)(ii) of the 1987 Act. Dr Dinnen stated that the injury contributed to the deceased’s depression, so he could not form an intention to commit suicide, consistent with Holdlen v Walsh.
Mr Barter submits that it is not necessary to consider to what extent the injury caused an insanity, but rather whether the suicide was not an intentional act of the deceased, such that he was overborne by depression that was aggravated by this back injury so that he was unable to form the necessary intention to kill himself. According to Dr Dineen, the deceased’s actions were impulsive. The deceased tried to commit suicide in the past, but this was a long time ago. He had the opportunity since then, but he did not do so.
Mr Barter submits that although the deceased was cleared to resume his pre-injury duties on
9 October 2018, he was really only cleared for the light duties that were allocated to him. One can assume he was still having problems with his back. The lay evidence shows that he was struggling, and he continued to have physiotherapy.
Mr Barter submits that Dr Kaplan referred to the deceased’s alcohol and drug issues, but
Dr Dinnen said that there had been improvement. The deaths of his mother and Cheryl occurred some time earlier, and his only ongoing problem related to his back, so Dr Dineen’s opinion should be preferred to that of Dr Kaplan.
Mr Barter submits that although the second respondent is more in need of support than the applicant, given her reaction to her father’s death, it would not be appropriate to jeopardise the relationship, so the death benefit should be apportioned equally between them.

FIRST RESPONDENT’S SUBMISSIONS

The first respondent’s counsel, Mr Hanrahan, submits that neither the applicant or the second respondent were dependent on the deceased at the time of his death. Given that the insurer never disputed dependency, and no leave was sought pursuant to s 289A of the 1998 Act to place dependency in issue, such a submission is confusing.
Mr Hanrahan submits that any opinion regarding the deceased’s state of mind at the time of his death is mere speculation. There was no evidence to confirm that the deceased’s esky contained sustenance. If he had intended to work, it is more likely that he would have had his mobile phone with him. He acted intentionally with reckless disregard.
Mr Hanrahan submits that Ms Willis did not say that the deceased was the love of her life. She did not want to discuss the matter, so one might feel that she was the focus of the deceased’s thoughts before his death. There was no suggestion by Ms Willis that the deceased work was more important than she was or the other relationships.
Mr Hanrahan submits that according to the authorities, a person cannot form an intention to commit suicide if his or her mind is unhinged. Dr Dineen said that the deceased was disturbed and dysfunctional, and he merely adopted the questions of Mr Mantach. Dr Dineen agreed that it was more probable than not that the deceased back injury materially contributed to an aggravation, but he gave no explanation for his opinion. Therefore,
Dr Dineen’s reports are of no assistance.
Mr Hanrahan submits that Dr Dineen indicated that there was always an element of intention in cases of suicide, but this seems illogical. He submits that even if the deceased was down, it was not the case that his will was overborne but he intentionally decided to kill himself. He submits that the deceased needs to establish that his mental condition was such that the accident disabled him from exercising a judgment, but if the deceased was not suffering from the effects of his accident, then one cannot draw an inference “that his mind has become unhinged so as to dethrone his power of volition, and in that sense, there is no proof and no necessary connection between the accident and the suicide”[4]. The evidence in the present matter does not go that far.
[4] Simeon Wines Limited t/as Buronga Hill Winery v Bobos [2004] NSWCA 342, [20].
Mr Hanrahan submits that Mr Dowde told the deceased how he could change, but he did not adopt that advice. The deceased was unwilling to change his ways and suicide was a way out. He submits that the onus falls on the respondent to prove that the deceased committed suicide rather than fall[5]. According to the evidence from the Police, the deceased did not fall, but he committed suicide.
[5] Bluescope Steel Limited v Pitaroska [2014] NSWWCCPD 21.
Mr Hanrahan submits that an intention to commit suicide would have allowed the deceased to escape the difficulties that he was having with Ms Willis. He may have had back pain, but his condition was not so bad that he was not able to perform light duties, or that he was dissatisfied with his job. His work as a tradesman was not more important to him than his relationships. There is little evidence that the deceased’s work was disturbing his mind, but there were other factors. He might have been feeling down, but that does not mean that he had an unhinged mind. Although the deaths of his mother and Cheryl occurred some time ago, one cannot say that their passing was not insignificant. His personal relationships were significant factors that led to his death.
Mr Hanrahan submits that there is no evidence to show that the deceased’s depression caused an aggravation of a pre-existing depressive state that dethroned his mind. According to Dr Dauncey, bath salts taken with alcohol can increase the effects of the drug. This shows that there was an intention on his part to commit suicide. He had previously attempted suicide, he had spoken to his daughters about this, and they had an impression about it, which proved to be correct. In this matter, there was a sufficient degree of planning which shows that the suicide was intentional.
Mr Hanrahan submits that Dr Kaplan dismissed the factual evidence, which was largely anecdotal, and he noted that Dr Dineen did not address this or the deceased’s drug and relationship problems. The deceased would have purchased the bath salts, but Dr Dineen made no comment about the presence of this drug.
Mr Hanrahan submits that the deceased was withdrawn, and he was planning to end his relationship with Ms Willis. It was a sensitive issue for Ms Willis, who did not want to get involved. He submits that there is no causal connection between the deceased’s death and his back injury. The causal connection was broken by the deceased’s intention to take his life. If there was a causal relationship, he submits that the deceased’s actions were intentional or he acted with reckless disregard, so this disentitles the deceased’s daughters to the death benefit.

SUBMISSIONS IN REPLY

Mr Stanton submits that the evidence shows that the applicant and her sister were at least partly dependent on the deceased at the time of his death.
Mr Stanton submits that the respondent bears the onus regarding intent. Dr Dineen indicated that there is always an element of intention in suicide, such as when one leaves a suicide note, and that is what Dr Dineen meant, consistent with the reasoning in Holdlen v Walsh.
Mr Stanton submits that there was no evidence of bath salts in the deceased’s blood sample and its effects had not yet been determined. The evidence shows that the deceased’s will was overcome by depression.
Mr Barter submits that even if the deceased had used bath salts, and had drugs and alcohol in his system, this was due to his depression.

REASONS

Was there a causal connection between the deceased’s psychological condition and his back injury? – ss 4 and 4(b)(ii) of the 1987 Act.

The determination of the issues in this matter involves two aspects. Firstly, whether the deceased developed depression or aggravated a pre-existing depressive condition as a consequence of his accepted back injury, and secondly, whether the deceased’s death was caused by an intentional act on his part. Given that there is no direct evidence from the deceased, one needs to consider the evidence of family members and co-workers, the medical evidence of the treating doctors and qualified experts and draw certain inferences based on the facts.

In Raulston v Toll Pty Ltd[6], Deputy President Roche discussed the principles relating to the drawing of inferences. He stated:
[6] [2011] NSWWCCPD 25 (Raulston).

“…the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg
Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted “Arbitrator” for “trial judge” where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.

(a)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the “fact of the [Arbitrator’s] decision must be displaced”. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.

(b)It may be shown that an Arbitrator was wrong “by showing that material facts have been overlooked or given undue or too little weight in deciding the inference to be drawn, or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”

The reasoning in Raulston was cited with approval by Deputy President Wood in Australia and New Zealand Banking Group Limited v Khullar[7], when she held that an inference drawn by an Arbitrator that an accident occurred during “peak hour” was available because this was “consistent with human experience that in a Sydney suburb on a week day in June, traffic will be heavier around 7.20 am than at most other times of the day”.[8]
[7] [2020] NSWWCCPD 3, Khullar.
[8] Khullar, [63].
It is clear from these authorities that an inference is an exercise of reasoning based on human experience to establish the existence of a fact that is based on the existence of some other facts. However, any inference must be consistent with the other evidence.
There is no dispute that the deceased injured his back at work on or about 31 August 2018.
What I need to determine is whether the deceased developed a consequential psychological condition as a result of his accepted back injury.
There is no need to determine if the deceased suffered a separate psychological injury or pathology. This existence of psychological symptoms is sufficient. This was confirmed in Kumar v Royal Comfort Bedding Ltd[9] and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[10]. It is a question of causation and the common-sense evaluation of the causal chain discussed in Kooragang Cement Pty Ltd v Bates[11].
[9] [2012] NSWWCCPD 8 (Kumar).
[10] [2016] NSWWCCPD 23 (Brennan).
[11] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].

The clinical notes of the Cooks Hill Family Practice show that over a period of about 19 years, the deceased only attended the surgery on 10 occasions prior to his back injury. This would seem to corroborate the applicant’s evidence regarding her father’s reluctance to attend a doctor and take time off work.
On 10 September 2018, Dr Finch recorded that the deceased had experienced soreness in his back at work the previous week, and this was much worse the next day. She prescribed 50 tablets of Valium, which was enough to last 25 days, and she told him to stop taking Panadeine Forte.

On 17 September 2018, Dr Finch noted that the deceased was still troubled by spasm and he had issues with the Valium. The fact that he was unable to sit for longer than 10 minutes suggests that the injury might well have been more serious than at first thought, but the doctor did not say that this was the case. At that stage, she referred him for physiotherapy.
According to the physiotherapist, John Slade, the deceased had non-specific low back pain and potential facet joint and muscular involvement, which suggests that he had suffered more than just a low back strain. Mr Slade noted that the deceased experienced some improvement following treatment, but he commented that the deceased would only be able to perform suitable duties.
On 25 September 2018, Dr Finch reported that the deceased’s condition had improved, he had less back spasm and he did not need Valium. Whilst it would seem that the deceased’s condition was not as bad as before, the doctor did not say that he had no back spasms, just that they were less. She felt that he still had no current work capacity until 8 October 2018.
It would seem that the deceased returned to work on 9 October 2018 without being cleared to do so. This might be viewed as evidence of the deceased’s desire to get back to work.
Dr Hamilton spoke with Dr McNamara, who was presumably the work’s doctor, and he was told that there were light duties available. Given that telephone discussion, it is unclear why Dr Hamilton certified that the deceased was fit to return to his full pre-injury duties instead of light duties. Dr Hamilton recorded that the deceased had a good range of movement and core strength, but he made no comment about any symptoms. Significantly he still recommended that the deceased have physiotherapy, rest and analgesia.
Unfortunately the clinical notes and medical certificates do not explain the nature and level of the deceased’s symptoms, if any, at the time that he returned to work on 9 October 2018. They also shed no light on the deceased’s mental state before and after his injury. Therefore, one needs to look at the evidence of the family and the work colleagues.
According to the applicant, her father was a heavy drinker and he smoked cannabis on weekends, but this did not affect his ability to work. His actions did not concern the family. He was particularly affected by the deaths of his mother and Cheryl, and she felt that caused him to maintain his heavy drinking habits. He still drank after he suffered his back injury.
The applicant indicated that over the preceding few months, her father spoke about the issues that he had with Mr Dowde, who would constantly ring him and tell him what to do.
The applicant confirmed that her father rarely saw a doctor, and he only did so when he had a serious health problem. Her evidence seems consistent with the few entries in the clinical notes of the Cooks Hill Medical Practice. She said that he rarely took time off work, and when she saw him after the work injury, he told her that his back was painful. She could tell by the way he was walking and standing that he was in pain. This gives some weight to the contention that the deceased’s back injury was more serious that at first thought.
The applicant stated that her father was not the same after he suffered his back injury, and she suspected that he was worried about its impact on his ability to work, although she did not say that he had told her this. When she last saw him 10 days or so prior to his death, he was not as bright as usual, and he did not stay long. When she spoke to him on the day before his death, he was short and sounded unhappy. He told her that Tracy had wanted to move in with him, and he did not want this to happen because he liked to live by himself and he did not want that level of commitment. He was thinking of ending the relationship, so this was something that was on his mind.

The applicant indicated that she did not know why he committed suicide. Her father was critical of a friend who had committed suicide a few years earlier. He had mentioned recently that his superannuation funds would be paid to them if anything happened to him. He often sent them photos whilst he was drunk when he was reminiscing, and she thought nothing of this at the time. Therefore, the applicant’s evidence suggests that from her observations, the deceased was troubled by back pain, he was thinking of ending his relationship with Tracy and his mood was low.
According to Lucy Quinnell, her father was in good spirits when she last saw him. It is unclear when this was. He told her that he had been off work and that he was taking medication for his back pain. He complained that he was bored and lonely because he was not at work. She confirmed that her father wanted to end the relationship with Tracy and that he did not want her to move in. Her evidence sheds little light on the nature and level of the deceased’s back pain and his emotional state.
The two statements of Ms Willis, who saw the deceased on a regular basis, are particularly informative regarding the nature of the deceased’s back pain and his mental state shortly before his death.
Ms Willis confirmed that the deceased was greatly affected by the deaths of his mother and Cheryl, and that he had tried to hang himself after the latter’s death, but he could not do so because of his children. She confirmed that he drank heavily and that he smoked cannabis in moderation. She had been involved in two prior relationships with the deceased before their last relationship. Her evidence is consistent with that of the deceased’s daughters.
Ms Willis indicated that the deceased was stressed about work because he had a lot to do. Mr Dowde was constantly ringing him and asking when he was returning to work. This evidence is similar to that of the applicant and has not been challenged by Mr Dowde. According to Ms Willis, the deceased complained that the Valium was affecting his mind, which is consistent with Dr Finch’s entry on 17 September 2018.
According to Ms Willis, the deceased told her not to come to his house on 14 October 2018 because he was in bed. He told her that he taken an overdose. He had drunk alcohol, taken five Valium and smoked some cannabis. So, he might have been suicidal before he decided to break off his relationship.
Ms Willis thought that he was in a strange mood and that he was depressed. Although she told him that he needed treatment, the deceased said he was fine, and he did not follow her advice. She stated that on the Sunday night (21 October 2018), they had discussed marriage and living together. He seemed distant and depressed.
Ms Willis stated that on 23 [sic] October 2018, the deceased asked for her help via a text. What he meant by this was not disclosed. When she called him in the morning, he would not respond to her questions and he did not go to her house that night as planned. Therefore it is apparent from Ms Willis’ statement to the Police that the deceased seemed depressed in the weeks before his death, he was having issues with Mr Dowde, and his back injury and depression was such that he needed treatment.
Whilst the statement of Mr Mantach is hearsay, the Commission is not bound by the rules of evidence. Mr Mantach is a highly regarded and longstanding practitioner in this tribunal and its predecessors, so I have no concerns regarding the accuracy of his description of his conversation with Ms Willis. Her reluctance to become involved is understandable if there were issues between her and the deceased’s daughters.
According to Mr Mantach, Ms Willis stated that the deceased was in a lot of pain following his back injury, and some mornings he could not get out of bed. He walked differently and held his back a lot. He was worried that he would not be able to do the heavy carpentry jobs because of his back. She said that his mental state was not good, and he had past issues. He felt pressured by Mr Dowde and he feared for his job. Many of these comments are consistent with the applicant’s evidence.
Mr Dowde confirmed that the deceased would come to work smelling of alcohol, but this did not affect his work. They talked about the issues he had with Tracy and the effect that Cheryl’s death had on him. He indicated that the deceased changed his drinking habits between March 2018 and July 2018, but after he injured his back, he reverted to his previous habits, although he did not smell of alcohol. Therefore, there would seem to be a temporal element between the deceased’s back injury and his resumption of heavy drinking.
Mr Dowde advised that the deceased was not himself on the day before his death. He gave short answers and was quiet. This evidence mirrors that of the applicant.

Mr Dowde indicated that the deceased injured his back in September 2018 and was off work for four to five weeks. On 8 October 2018, he was cleared to return to work, but Mr Dowde put him on light duties for a few weeks to ensure a full recovery.
The lay evidence shows a number of consistencies. The deceased was a heavy drinker, who moderated his drinking prior to July 2018. After he injured his back, he fell back into his old habits. He had ongoing back pain, he was depressed, and he had been advised to seek treatment.
The deaths of his mother and Cheryl caused ongoing emotional issues and he was troubled by his relationship with Tracy. He was worried about his ability to resume his pre-injury duties, he was bored and unhappy being away from work, and he was being pressured by
Mr Dowde to return to work.
The deceased’s mood was down in the days leading up to his suicide and both the applicant and Tracey confirm that he had pain in his back which was at times somewhat debilitating. Even though the ingestion of Valium was causing issues with his mental state, he continued to take the medication as evidenced by its presence in his post mortem blood sample. One can infer that he was taking this medication to address his low back pain and muscle spasm rather than any mental issues, because this was why Dr Finch had prescribed the medication in the first place.
Dr Dinnen also expressed the view that the nature of the symptoms reported by the family members suggested that the deceased had suffered more significant damage to his back than just a muscle sprain, and that the severity of any injury often became apparent after some time.
Dr Kaplan seemed to downplay the extent of the deceased’s back injury. Significantly, he did not have access to the applicant’s last statement or that of Mr Mantach that describe the nature of the deceased’s pain in more detail. His conclusion that the deceased recovered within a few weeks, when viewed in conjunction with the other evidence, cannot be supported, although it is true that there is no evidence commenting on the deceased’s ability to perform the light duties on his return to work. Nevertheless, it seems that he did not have the full picture and relied on the earlier statements where the focus was on the deceased’s suicide. Accordingly, one needs to be cautious about his views on the nature of the deceased’s back injury and the level of his post injury symptoms.
Therefore, when one considers the lay evidence, particularly the statements that were provided in 2020, the clinical notes of the treating doctors, the physiotherapist’s report that warned against a resumption of his pre-injury duties, and the opinion of Dr Dineen, it seems more probable than not that the deceased was suffering from the painful effects of his back injury after he was cleared to return to work, and this was adversely contributing to his poor mental state.

The next matter to consider is whether the deceased had a psychological condition and if so, whether his back injury made a material contribution to that condition.
There seems little doubt that the deceased was depressed for a period of time leading up to his death. The lay evidence confirms that he had psychological symptoms that had resulted from a variety of issues, including his back injury, the pressure from Mr Dowde, the fear of his inability to work, the deaths of his mother and Cheryl, and the relationship issues with Tracy. Unfortunately, the clinical notes give no insight into the deceased’s mental state.
Dr Dineen identified the difficulties in providing an opinion post mortem and the need to rely on lay evidence. Such a comment mirrors the difficulties that I am operating under.
Dr Dineen thought that the deceased may have had a genetic predisposition to depression. He acknowledged that the deceased’s inability to work due to his back injury would have been a very significant added stressor on to his depressive vulnerability, and this reflects what family members said in their statements. The instability of his relationships would have also been a stressor.
Dr Dineen believed that based on the factual evidence, the deceased had back pain caused by more than just a muscle strain, and when he returned to work, he was only able to perform light duties at the insistence of Mr Dowde.

Dr Kaplan indicated that there were anecdotal accounts that the deceased felt under pressure from Mr Dowde, and Mr Dowde made no mention of this in his statement.
Dr Kaplan stated that no conclusions could be drawn, and it was unlikely to be significant, but given that Mr Dowde did not challenge this evidence, it was something that he should have considered and expressed a view regarding this unchallenged work stressor.
Dr Kaplan noted that the deceased had relationship issues and there was a lengthy history of alcohol and cannabis abuse. He stated that cannabis and bath salts were known to cause mood disorders, but any levels of these drugs in the deceased blood sample were modest and of no importance according to Dr Dauncey.
Dr Kaplan did not comment on the difference between heavy users and a moderate user like the deceased, and the article that he cited is not in evidence.
It is clear that Dr Kaplan’s focus was on the deceased’s pre-injury mental state. He stated that he had been depressed for four years or more following the death of his mother and the loss of other relationships. Such a conclusion is open on the scant evidence, but significantly, the deceased did not seek treatment. He also abused alcohol and was a moderate user of cannabis, but despite his poor mental state and substance use, he was still able to work in a full time capacity. The deceased also got his act together and reduced his alcohol intake and lost weight. Dr Kaplan did not comment on this.
The evidence shows that the deceased reverted to his previous habits and his relationship with Tracy. This begs the question as to why there was the change. It seems to me that the answer lies in the changes that occurred in the deceased’s life shortly before his death, namely his back injury, his ongoing pain, the need to take time off work, the fear about his ability to return to work, his job security and the issues that he had with Tracy.
It is accepted that a condition can have multiple causes, but the applicant must establish that the back injury materially contributed to the deceased’s depression. This was confirmed by Deputy President Roche in Murphy v Allity Management Services Pty Ltd[12].
[12] [2015] NSWWCCPD 49.

According to Dr Kaplan, there was no material causal connection between the deceased’s back injury and his depression. He merely provided a one line answer to a question, and he did not explain why he held that view.
Like Dr Kaplan, Dr Dineen did not explain why he considered that there was a material connection between the back injury and the deceased’s depression in his initial report.

However in his report dated 6 July 2020, Dr Dineen agreed that the deceased’s back injury materially contributed to the aggravation, acceleration, exacerbation or deterioration in his depressive illness or depressive vulnerability. He noted the matters that flowed form his back injury, namely the close temporal connection, the significant time off work, his return to work with back symptoms, the fear of not being able to perform his usual duties and his concern about losing his job, had either aggravated a pre-existing depression or resulted in a depressive condition in a susceptible person.
It is true that the doctor did not mention the effect of the deceased’s drug use and relationship issues, but he was cognisant of these matters, but he was mindful of the temporal connection between the back injury and the deceased’s psychological condition at the time of his death. In the circumstances, I consider that Dr Dineen’s opinion carries more weight than the views of Dr Kaplan and should be preferred.
Whether the deceased’s back injury caused a depressive state or aggravated pre-existing depression is immaterial. According to Kumar and Brennan, all that I need to consider is whether the deceased developed some psychological symptoms as a result of his accepted back injury, having regard to the common sense causal chain in Kooragang.
Therefore I am satisfied that the deceased’s back injury made a material contribution to his consequential psychological condition that was present at the time of his death.

Was the deceased’s death caused by an intentional self-inflicted injury?

Section 14(3) of the 1987 Act states that compensation is not payable in respect of
any injury to or death of a worker caused by intentional self-inflicted injury. It 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.”

The meaning of the words “intentional self-inflicted injury” was considered by the Court of Appeal in Holdlen v Walsh, Giles JA reviewed the case law and commented:

“In Church v Dugdale & Adams Ltd Lord Hanworth MR described Marriott v Maltby Main Colliery Co Ltd as ‘the locus classicus for … the guidance to be found in these cases’, and continued (at 449) -

‘The upshot of all that is, that when one turns to see the facts of the case before the Court it is necessary to find not merely that there has been suicide, not merely at the time of the suicide that there was some depression and some delusions, but you must find that the condition of the man was such that the accident disabled him from exercising a judgment, and in that sense caused the accident. If you find merely that in consequence of the accident he is brooding in fear of poverty, or in distress, or in a mental condition which is consistent with the condition of a person not suffering from an accident, there you do not find and are not entitled to draw the inference that his mind has become unhinged so as to dethrone his power of volition, and in that sense there is no proof and no necessary connection between the accident and the suicide’.”[13]
[13] Holdlen v Walsh, [20]

His Honour continued:
“…Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result.
If s 14(3) on its proper construction can apply to death by suicide in a case such as the present, which as will be seen it is not necessary to decide, the same considerations arise. Although the section refers to intentional self-inflicted injury, the deliberate act of suicide may be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act.”[14]
[14] Holdlen v Walsh, [37] – [38].

Although Mr Stanton submits that the deceased might have fallen to his death during the course of his employment, the weight of the factual evidence supports a death by suicide.
Detective Senior Constable Kennedy believed that the deceased had been staying on site and was sleeping in a bed on level 6. It appeared that he accessed the rooftop and then ran and jumped to his death sometime between 4.00 am and 5.00 am. He was found dressed in his work uniform and there was no suicide note. There was an esky on level 6 that contained the deceased’s mobile phone, wallet and keys. There was no mention of any food in the esky. His car was parked in Hunter Street next to the building.

According to the Detective Senior Constable, the applicant said "Oh my god, dad’s killed himself" and she mentioned that his work injury had brought back thoughts of his mother and Cheryl, so it seems that there might have been a triggering effect. This might be consistent with the fact that the Police found the mother’s obituary on the top of a cupboard.
Senior Constable Parberry’s version of what the applicant said to the detectives when she was told about her father’s death differs from the statement of Detective Senior Constable Kennedy’s account. Given that the latter was present when the applicant was told, Senior Constable Parberry’s description of the applicant’s reaction can be disregarded.

Mr Dowde explained that there was no reason why the deceased would have been at work before 7.00 am or on the roof on the day of his death. He believed that the deceased committed suicide because his body was too far out into a carpark for him to have fallen.
Mr Dowde did not mention that the deceased was having any physical or mental issues following his return to work, but his decision to limit his work to light duties would seem to suggest that he was not satisfied that the deceased was back to full fitness.
According to the applicant, her father would often talk about his superannuation being paid to them if anything happened to him, but she had no inkling that he intended to take his own life. She was aware that he had multiple issues, but she did not express an opinion about their potential contribution to his death. She said that her father thought that suicide was a coward’s way out. The absence of a suicide note troubled her. Her sister’s statement sheds no light on this issue.

The evidence also shows that the deceased never really got over the deaths of his mother and Cheryl. It is significant that he elected not to end his life after Cheryl died because he had two daughters. As he still had two daughters that he loved, one would have to question whether he was thinking clearly when he ended his life. His text for help sent to Ms Willis on the day or so before his death seemed to show some desperation on his part. This has not been the subject of any comment by the qualified specialists.
The clinical notes of the Cooks Hill Medical Centre shed no light on the deceased’s mental state. At no stage was he referred for psychological counselling.
Dr Dauncey confirmed that the deceased’s blood sample analysis showed an elevated level of alcohol, but she could not determine its significance. She believed that the deceased took a tablet of Valium several hours before his death and that he had not smoked cannabis in the hours before the incident. She stated that he was not a heavy user of the drug. She came to no conclusion regarding the effect that the bath salts might have had on the deceased’s mind.
I have already commented on the views of Dr Dineen and Dr Kaplan. Their opinions regarding the deceased’s mental state will obviously carry the greatest weight, even allowing for the fact that their reports were provided post mortem.

Dr Kaplan noted that the deceased had been involved in a number of relationships and he had been depressed for a number of years. However, I would not consider the majority of them as being brief, apart from the on and off relationship with Ms Willis.
It is true that the deceased had relationship issues with Ms Willis, but this was not the first time that this had happened. He had broken up with her on two prior occasions, so it seems highly unlikely that a third breakup would have caused him to become suicidal. He did not seek treatment after the relationships ceased, and he was able to work without difficulty, so the psychological effects of broken relationships is not entirely clear. On the other hand, he never got over the deaths of his mother and Cheryl. His attempt to kill himself in about 2017 failed because of his love for his daughters. The reasons for his attempted overdose on
14 October 2018 are unknown.
Dr Kaplan stated that according to the applicant, the deceased had mentioned suicidal ideas some time before his death. However, there is no report of this in the applicant’s statements. Rather, the applicant stated that her father had said that suicide was a coward’s way out.
The views of Dr Kaplan are obviously coloured by his conclusion that the deceased’s back injury was only minor. He placed emphasis on the deceased’s drug use as causing his mental disturbance and suicide, and yet the evidence shows that he was not an abuser of cannabis and this was the conclusion reached by Dr Dauncey.
Dr Kaplan has not explained why the deceased’s mind was not overborne by his back injury and its sequelae. He merely stated that there was not a material causal connection between the work-related back injury and the depressive illness that was presumed to have caused the deceased’s death.
Dr Dinnen stated that it is more probable than not that there was a causal connection between the deceased’s back injury and his death, and there was no contribution from the drugs and alcohol that were in his system.

Dr Dinnen thought that the deceased had a "disrupted state of mind", causing him to suicide, and stated that there was always an element of intention in any suicide. Obviously, there must be a decision to end one’s life, so the doctor’s comment is logical and understandable. He indicated that in a depressed state, matters loom larger than they should, resulting in feelings of hopelessness. Interestingly, the applicant told the Police that the deceased’s back injury had brought back thoughts of his mother and Cheryl, so there might be some merit in what Dr Dinnen says.
Dr Dineen stated that impulsivity also played a part. It is difficult to assess in hindsight whether the deceased intentionally took his life or if it was on the spur of the moment. I am mindful that he was dressed in his work uniform and he was at work earlier than usual. The Police suspected that he had slept in the building. That might well have been the case, but we do not know for certain.
The Police reported that the esky had the deceased’s mobile phone, wallet and keys. There was no mention of any sustenance. Common sense would suggest that if the deceased had intentionally planned to end his life, he would have left a suicide note and there would have been no reason to bring an esky to work. It also begs the question, that if the deceased had intended to end his life, why did he take his mobile phone and wallet to level 6 when he could easily have locked them away safely in his car that was parked in the street next to the building.
It would seem more probable than not, based on Dr Dineen’s opinion and the lay evidence, that the deceased acted impulsively in his “disrupted state of mind” and ended his life. It seems to me that the terminology used by Dr Dineen is not dissimilar to the term “unhinged”. Therefore, in light of all these matters and the reservations that I have expressed regarding the views of Dr Kaplan, the evidence of Dr Dineen should be preferred to that of Dr Kaplan.
The evidence supports the contention that the deceased’s will was so overborne by his more recent circumstances, namely his back injury, the consequential depression, the fear of his ability to work as a carpenter and his job security, and loneliness while being away from work, that he committed suicide. The breakup of his relationship also appeared to playing on his mind.

The thoughts about his mother and Cheryl were in the background and it seems that they again came to the surface after he suffered his back injury and incapacity. Those relationship issues and the deaths had been present for a long time and he had not taken his life, so in my view, the temporal connection between the deceased’s back injury and his death cannot be dismissed. In my view, there was no break in the chain of causation, consistent with the principles discussed in Holdlen v Walsh.

In the circumstances, I consider that it is more probable than not that the deceased’s death did not result from an intentional self-inflicted injury because his mind was so overborne or influenced by the psychological condition that resulted from his accepted back injury.

REASONS

Dependency

It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[15], Albury Real Estate Pty Ltd v Rouseand anor[16] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support, and encompasses other multifactorial aspects including assistance with day to day activities and emotional support.
[15] (1995) 11 NSWCCR 546, [554] to [555].
[16] [2006] NSWWCCPD 139, [45] to [50].

In TNT Group 4 Pty Limited v Halioris[17], McHugh JA stated:

“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[18]
[17] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[18] Halioris, [489].

Further, in Kaur v Thales Underwater Systems Pty Ltd[19], President Keating stated:

“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[20]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[21]

[19] [2011] NSWCCPD 6 (Kaur).

[20] Kaur, [126].

[21] Kaur, [148].

I am satisfied that the evidence shows that the applicant and second respondent were partly dependent on the deceased at the time of his death. Both had jobs, although the applicant was on maternity leave at the time of her father’s death. They both received physical, financial and emotional support for their father and there was an expectation that this would have continued but for his death.
Further, given the evidence before me and the failure by other potential dependents to make a claim, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.

Apportionment

In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick[22], Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[23]
[22] (1996) 15 NSWCCR 32 (Wratten).
[23] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit and this was confirmed by counsel during submissions.
The applicant and the second respondent are of similar ages and their circumstances are somewhat similar. It is true that Lucy had psychological issues before her father died and his death seems to have aggravated her condition.
Having regard to the totality of the evidence, the appointment suggested by the parties is in my view appropriate and properly reflects their respective expectations and entitlements.

Accordingly, I apportion the lump sum payment pursuant to s 29 of the 1987 Act as follows:

(a) $395,925 to Ruby Rose Quinnell, and
(b) $395,925 to Lucy Jane Quinnell.

FINDINGS

The deceased worker, Dean Gregory Quinnell, died on 25 October 2018 as a result of injury sustained during the course of his employment with the respondent on or about
31 August 2018.
Ruby Rose Quinnell and Lucy Jane Quinnell were partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The deceased’s death was not caused by an intentional self-inflicted injury.
The first respondent is liable for the payment of lump sum compensation and funeral expenses.

ORDERS

The lump sum compensation of $791,850 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) $395,925 to Ruby Rose Quinnell, and
(b) $395,925 to Lucy Jane Quinnell.

The first respondent to pay lump sum compensation pursuant to s 85A(1)(a) of the 1987 Act to the dependants as follows:
(a) $395,925 to Ruby Rose Quinnell, and
(b) $395,925 to Lucy Jane Quinnell.
The first respondent to pay the applicant $7,140 in respect of funeral expenses pursuant to s 26 of the 1987 Act.

[2021] NSWPIC 452

11 November 2021