SA Health Commission v McArdle & Anor No. Scgrg-97-1309 Judgment No. S6685

[1998] SASC 6685

SA HEALTH COMMISSION  v  McARDLE & ANOR

Full Court:  Doyle CJ, Millhouse and Nyland JJ

DOYLE CJ

Introduction

This is an appeal from a decision by the Workers Compensation Appeal Tribunal (“the Tribunal”).

By s100(3) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) the appeal is limited to a question of law.

The Tribunal allowed an appeal against a decision by a Review Officer. The Review Officer had determined that a claim by Mrs McArdle, for compensation pursuant to s44 of the Act, should be rejected. The Tribunal held that Mrs McArdle was entitled to compensation under s44 of the Act.

Facts

Mrs McArdle is the widow of Mr McArdle. He was employed by the appellant as a nurse. On 20 February 1990 Mr McArdle made a claim for compensation under the Act. He claimed to be incapacitated for work. The disability from which he suffered was identified by him as “mental disturbance; stress”. The claim was accepted. Weekly payments by way of income maintenance were paid to him.

I gather that he returned to work, because on 21 December 1990 another claim was made.  Again the claim was that Mr McArdle was incapacitated for work.  The disability was identified by Mr McArdle as “work related stress”.  That claim also was accepted, and weekly payments of compensation were again paid.

The appellant employer found alternative work for Mr McArdle.  It did not involve him working as a nurse.  Mr McArdle worked for a time, but again ceased work in 1993.  In due course he resumed work in yet another position.  This was in 1994.  He ceased work again on 8 August 1994.  These events gave rise to three further compensation claims in November 1993, December 1993 and on 8 August 1994.  These claims had not been determined when Mr McArdle died, in circumstances to which I will refer shortly.  They were later rejected by the appellant.

Mr McArdle did not return to work after 8 August 1994.  On the evening of 3 September 1994 he and his wife went to a social function.  When they returned home Mrs McArdle went to bed.  Mr McArdle stayed up to watch television.  Next morning, when Mrs McArdle got up, she found Mr McArdle dead in their home.  The analysis of Mr McArdle’s blood indicates that he died as a result of taking drugs that had been prescribed for him.  One of these drugs was present in his blood at a level that was fatal.  Others were present at levels described as “excess but not fatal”.  He also had a blood alcohol level of 0.211%.

It is not disputed that in 1990 Mr McArdle suffered two episodes of a depressive illness.  That illness was diagnosed as a psychotic depression.  It was accepted by the appellant that that was the compensable disability which Mr McArdle suffered in 1990.

The case has been argued on the basis that s30A of the Act, enacted in 1994 to deal with a disability “consisting of an illness or disorder of the mind”, is not applicable to the present case.

The Tribunal found that in 1994 Mr McArdle was still suffering from the psychotic depression, that his death was suicide, and that the death resulted from the original compensable disability.  Accordingly, the claim for compensation succeeded.

The compensable disability

The Tribunal found that in late 1994 Mr McArdle continued to suffer from the original compensable disability.  In my opinion no error in that respect has been established.

The Tribunal accepted certain evidence from the psychiatrist who treated Mr McArdle.  The effect of that evidence was that the depressive condition, which began in 1990, was likely to wax and wane in its intensity, but that the underlying depressive condition continued to exist.  The psychiatrist’s evidence was to the effect that the continuance of this condition was not inconsistent with Mr McArdle being able to work from time to time.  The psychiatrist’s opinion was that Mr McArdle remained vulnerable to further attacks of the illness.  The position is crystallised by this passage in the evidence (T18):

“What I’m saying here of course is that I believe that once he developed a depression he was prime (sic) to develop further attacks of the illness because of the vulnerability.  So it leaves him scarred in a biochemical sense or a biological sense and therefore he’s prone to further episodes.”

The finding that the death was suicide and not misadventure

The appellant attacked the finding by the Tribunal that the death was suicide.  Reliance was placed upon the presumption against suicide: see Spiratos v Australian United Steam Navigation Co Ltd (1955) 93 CLR 317 at 320 Dixon CJ, Webb J and Fullagar J.

But that is no more than a presumption of fact, based upon commonsense and common experience.

Of course, in the present case misadventure was a possibility.  The high level of alcohol found in Mr McArdle’s blood raised the possibility that Mr McArdle inadvertently took an overdose.  But the evidence indicates that Mr McArdle must have taken many times the prescribed dose of his medication.  The number of tablets that he would have to have taken, in a fairly short space of time, to produce the levels of the various drugs found in his blood argues against accidental death.  The presence of the depressive condition is another relevant factor, making it less unlikely that he would take his own life.

In my opinion, the short answer to the submission on this point is that there was evidence upon which the Tribunal was entitled to reach the conclusion that it reached.  If there was such evidence, then there is no error of law.  This Court is not sitting as a Court of Appeal.  In my opinion this challenge to the finding of the Tribunal does not succeed.

Did death result from the compensable disability?

The submission was that the depression suffered in 1990 was nothing more than a “predisposing event”, and that there was no evidence to support a finding that death resulted from the compensable disability.

It was necessary for Mrs McArdle to establish, on the balance of probabilities, that Mr McArdle’s death resulted from the compensable disability sustained in 1990.  That depends upon a finding of fact.  Counsel for the appellant submitted, quite correctly, that the mere fact that the psychotic depression was still present in 1994 did not establish that Mr McArdle killed himself as a result of that psychotic depression.  So much can be accepted.  The point made by counsel for the appellant was that along the way, in about 1992, Mr McArdle stopped attending a psychiatrist and stopped taking his medication.  Later events led to him ceasing work and resuming treatment and medication.  The argument was that it was these intervening events that were the cause of his death, if the death was suicide, and that the death did not result from the disability suffered in 1990.

In my opinion, with all respect, that submission raises nothing other than a question of fact, a matter to be considered and to be resolved by the Tribunal.  The Tribunal addressed that very issue, and referred to relevant cases dealing with the issue of causation.  The Tribunal identified a distinction between a mere predisposing event, and something from which death can be said to result.  The Tribunal’s conclusion was that the psychotic depression continued, and that subsequent events merely illustrated the waxing and waning of the depression.

I can find no error of law in the approach taken by the Tribunal.  Once again, in my opinion, the Tribunal has made a finding of fact which is supported by evidence before the Tribunal.  There being no error of law, the question of whether this Court would have made that finding is neither here nor there.  I would reject this submission.

There was another aspect to this submission. It was that the death of Mr McArdle did not result from the compensable disability, the depressive condition, if Mr McArdle’s death was the result of a deliberately self-inflicted injury. Underlying that submission is the assumption, which must be sound, that a deliberately self-inflicted injury will not usually give rise to a compensable disability under the Act, and that the results of a compensable disability will not include conditions that result from deliberately self-inflicted injury.

These propositions are not expressed anywhere in the Act. However, while I have stated them rather generally, I have no doubt that they reflect the law.

For present purposes I put to one side disabilities attributable to “serious and wilful misconduct” and to the effects of the consumption of alcohol and drugs. By s30B of the Act, “in a case of death” these disqualifying factors do not operate.

Cases dealing with claims based upon suicide by a worker have held that compensation can be claimed for the death of the worker if the injury suffered by the worker was such that the worker’s “power of volition” was destroyed, and if it was as a result of that that the worker committed suicide.  The cases are summarised in Crengle v Lake Brummer Saw Milling Co [1953] NZLR 765; see also Dwyer v State of South Australia (1979) 46 SAIR 170.

In the present case, the Tribunal made no finding on the point.  It was submitted that, in this respect, the Tribunal had not correctly directed itself as a matter of law.

But counsel for the appellant acknowledged that this issue had not been raised before the Tribunal.  Nor, as far as I can ascertain, was it raised before the Review Officer.

Although this submission falls within the grounds of appeal upon which leave to appeal was granted, in my opinion the appellant should not be permitted to raise this point.

In Water Board v Moustakas (1988) 180 CLR 491 at 497 Mason CJ, Wilson, Brennan and Dawson JJ said:

“More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.  Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied ...”

The principle is well established.

The principle should be applied with some care when the proceedings have not gone forward on the basis of pleadings.  Pleadings will define and identify the issues to be raised.  In the absence of pleadings, it may be less clear in advance what issues were to be raised, and less clear what were the matters in issue at the hearing.  But, in the present case, the point now raised is a distinct issue.  There were two opportunities to raise it, before the Review Officer and before the Tribunal.  On neither occasion was it raised.  If the point had been raised, it would surely have been the subject of evidence from the medical experts.  If the appellant’s submission were to succeed, the matter would have to be remitted for a rehearing.  It would not be just to dismiss the claim for compensation, because Mrs McArdle’s case on the point has not been properly heard.

In the circumstances of the case, I consider that the failure to raise the point before the Review Officer and before the Tribunal has the result that the appellant should not be permitted to raise the point now.

Accordingly, the challenge to the finding that death resulted from the compensable disability must fail.

Conclusion

In my opinion the appeal should be dismissed.

MILLHOUSE J

I agree.

NYLAND J

I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.