Sadlo and Comcare

[2005] AATA 1006

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1006

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/139

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICIA-ANNE SADLO

Applicant

And   COMCARE

Respondent

DECISION

Tribunal

  J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

Date  6 October 2005

Place  Canberra

Decision

1. The decision of Comcare made 8 March 2004 is set aside and in substitution it is decided that Mrs Sadlo is entitled to compensation pursuant to section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

2.   The parties may seek further directions as to costs if necessary.

..............................................

CATCHWORDS

COMPENSATION – suicide – whether deceased’s Dependant entitled to compensation under section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether injury causing death “intentionally self-inflicted” - compensation not payable under section 14(2) as injury “intentionally self-inflicted” - work-related aggravation of a depressive condition resulting in death - section 14(2) does not exclude a claim for aggravation of a depressive condition - whether self-inflicted injury broke the chain of causation between aggravation of depressive condition and death - chain of causation not broken – compensation payable for aggravation of a depressive condition resulting in death - decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14(2), 17

Worker’s Compensation Act 1987 (NSW) s 14(3)

Holden Pty Ltd v Walsh [2000] NSWCA 87

Comcare v Amorebieta (1996) 66 FCR 83

Ilsley v Wattle Australia Pty Ltd (1997) FCR 1

Calman v Commissioner of Police (1999) 167 ALR 91

REASONS FOR DECISION

6 October 2005                   J.W. Constance, Senior Member
  Dr M.D. Miller AO, Member

INTRODUCTION

1.      Mrs Sadlo is seeking compensation for an injury to her late husband which she claims resulted in his death. On 3 September 2002 Mr Sadlo committed suicide by carbon monoxide poisoning. At the time he was suffering from depression which was being aggravated by his employment.

2. We have decided that the poisoning injury is not compensable as it was intentionally self-inflicted and therefore excluded by subsection 14(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). However the aggravation of the depression was also an injury which resulted in Mr Sadlo’s death but which was not self-inflicted. Mrs Sadlo is entitled to compensation in respect of this injury.

FACTS

3.      We are satisfied as to the following facts on the balance of probabilities.

4.      Mrs Sadlo married the late Mr Sadlo in 1971. Mr Sadlo commenced employment with the Aboriginal Development Corporation in 1984 and later transferred to the Aboriginal and Torres Strait Islander Commission (“ATSIC”). In late 2000 Mr Sadlo was transferred from the Canberra office of ATSIC to the Sydney office.

5.      Mr Sadlo suffered from significant depression as early as February 1996 and it appears that from then onwards he suffered depression from time to time and in varying degrees. Comcare has conceded that the depression from which Mr Sadlo suffered at the time of his death was being aggravated by his employment with ATSIC. On the basis of the evidence of Mrs Sadlo, Dr Knox, Dr Saboisky and the letters written by Mr Sadlo we are satisfied that this was a proper concession.

6.       On 3 September 2002 Mr Sadlo died as a result of carbon monoxide poisoning self-administered the previous day. He left a letter to Mrs Sadlo[1] which had 11 attachments dealing with financial matters including rent payments, salary, bank accounts, credit cards, loans, taxation and superannuation.[2] On the same day he also wrote at least 2 detailed letters concerning problems he had experienced in his workplace.[3]

[1] Ex. A8.

[2] Ex. R4.

[3] Ex. A4 and A5.

7.      Mrs Sadlo claimed compensation as Mr Sadlo’s only dependant at the time of his death. The injury for which the claim was made was “work related depressive illness leading to suicide (as a result of the loss of power of volition).” [4] Her claim was rejected by Comcare and it is this decision which is now before us for review.

[4] T3, Claim for Rehabilitation and Compensation.

8.      There are 2 injuries which need to be considered, either of which could be the basis for compensation:

1.    carbon  monoxide poisoning; and

2.    aggravation of a depressive condition.

STATUTORY FRAMEWORK

9.      Section 17 of the Act provides for compensation for the dependants of an employee when “an injury to an employee results in death.”  However “[c]ompensation is not payable in respect of an injury that is intentionally self-inflicted” : subsection 14(2).

THE ISSUES

10.     Two issues arise for consideration:

A.   was the carbon monoxide poisoning “intentionally self-inflicted”? and

B.   did the aggravation of the depressive condition “result in” Mr Sadlo’s death?

REASONING

A. Was the carbon monoxide poisoning suffered by Mr Sadlo “intentionally self-inflicted”?

11.     It is not in issue that Mr Sadlo committed suicide by self-inflicted carbon monoxide poisoning. The question is whether the self-infliction of the injury (poisoning) was “intentional”.

12.     Mrs Sadlo argued that Mr Sadlo’s thinking process, being his capability to form an intention, was so distorted by the effects of depression, that he did not have an intention to inflict the injury upon himself. Comcare’s argument was that Mr Sadlo’s actions prior to his suicide were indicative of a man in control who made a conscious choice to act in the way he did and therefore his injury of himself by poisoning was intentional.

Medical evidence

13.     Dr Saboisky, Consultant Psychiatrist, gave evidence on behalf of Mrs Sadlo and confirmed the contents of his report of 21 June 2005[5]. Dr Saboisky had not consulted with Mr Sadlo but had a number of documents to consider including reports by Dr Knox and Dr Donsworth and a number of the section 37 documents.

[5] Ex. A15.

14.     Dr Saboisky’s opinion is that “[t]he suicide was clearly premeditated as evidenced by the letters that he wrote to his wife, to Mr Gooda and to Mr Hedger. He clearly intended to kill himself.” [6]  In giving evidence Dr Saboisky said that Mr Sadlo’s reasoning with regard to the financial consequences of his death was logical and showed that he was anticipating the consequences of his proposed action. He was also of the view that the fact that Mr Sadlo had planned suicide 2 weeks earlier indicated he was able to control his impulses. Dr Saboisky is of the opinion that these factors indicated an intentional act.

[6] Ex. A15.

15.     Dr Knox, Consultant Psychiatrist, also considered relevant documents in relation to Mr Sadlo, but he too did not have the opportunity for consultation. In his report of 28 October 2003[7] Dr Knox noted “a paucity of clinical psychiatric evidence regarding Mr Sadlo…” but he was able to form the opinion that Mr Sadlo “exercised ‘volition’ in his act to kill himself.”[8]  He referred to the planning involved and the preparation of the letters, including Mr Sadlo’s reference to his “decision” to take his own life.

[7] Ex. R2.

[8] Ex. R3.

16.     Dr Donsworth, Consultant Psychiatrist, was called by Comcare. She too gave an opinion based on her consideration of documents provided to her. In her report of 10 October 2004[9] Dr Donsworth expressed the opinion that Mr Sadlo intentionally inflicted the injury which caused his death. She said that his careful planning and the execution of his plans showed that he was not deprived of conscious choice.

[9] Ex. R1.

17. All of the medical evidence before us indicates that the injury of carbon monoxide poisoning was intentionally self-inflicted. We accept that evidence. It follows that, even if the poisoning was an injury arising out of Mr Sadlo’s employment, by reason of subsection 14(2) compensation is not payable in respect of that injury.

B. Did the aggravation of the depressive condition “result in” Mr Sadlo’s death?

18. At the hearing Comcare conceded that Mr Sadlo’s employment was aggravating the depression from which he suffered at the time of his death and that this aggravation was an injury within the meaning of the Act. As there is no suggestion that the aggravation of the depression was self-inflicted, subsection 14(2) does not exclude an entitlement to compensation in respect of this injury if such an entitlement is otherwise found to exist.

19.     In its written outline of submissions Comcare stated its argument as follows:

“If Mr Sadlo’s suicide was an intentional or volitional act then such act was a novus actus interveniens that broke the chain of causation between his aggravated depressive condition and his death. On this basis it could not be said that his aggravated depressive condition resulted in his death.”

20.     Comcare argued that because Mr Sadlo’s decision to take his own life was voluntary in the sense that his power of choice was not displaced or impeded, the chain of causation between the depression and his death was broken by the exercise of his choice. For the same reasons that we have already found that the suicide was intentional we are also satisfied that it was a voluntary act. However this does not necessarily mean that the injury did not “result in”  his death.

21.     Comcare relied on a series of decisions in support of its proposition. The various authorities, including the English cases, were reviewed by the New South Wales Court of Appeal in Holden Pty Ltd v Walsh [2000] NSWCA 87. In that case a workman was injured at work and subsequently became depressed. He committed suicide 3 years later. The employer argued that there were other causes unrelated to work which intervened and which caused him to take his own life.

22.     In considering the English decisions the Court of Appeal noted that the English legislation “did not expressly deal with self-inflicted injuries, but the words ‘by accident’ were taken to exclude injuries of that kind…and death by suicide was regarded as excluded unless the worker was found to have been insane at the time of the suicide.”[10]  The test applied was whether the worker was suffering from mental derangement such as to dethrone his power of volition.[11] If he was not the suicide broke the chain of causation between the work-related injury and the death. In other words the inquiry into sanity was regarded as going to causation.[12]

[10] Para. 22.

[11] Para. 26.

[12] Para. 24.

23.     Notwithstanding a number of decisions in New South Wales which followed the English line of reasoning the Court of Appeal expressed its reservations as to this approach:

“There may be some difficulties, despite the hallowed past of the approach, in inquiring into insanity as going to causation in a suicide case….[T]he premise is that, absent a finding of insanity, the intentional act of suicide would break the chain of causation between the injury and the death. But it is now more readily recognised that in causation, said to be a question of fact although tempered by value judgments and infused with policy considerations because [sic] with a view to allocating legal responsibility…an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation….I do not see why, if the facts be appropriate, death by suicide could not be found to have resulted from work-related injury without a finding that the worker was insane.” [13]

[13] Paras. 34,35 and 36.

24.     The Federal Court has said that in matters such as this the concept of causation as known generally is applicable:

“No less firmly established is the conclusion that in workers’ compensation legislation the expression of causal relationship by the words “results from” imports the concept of causation as it is known to the law, without seeking to modify it, and the conclusion that ‘[t]he legal concept of causation when applied in the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be’  (Migge v Wormald Bros industries Ltd [1972] 2 NSWLR 29 at 44; on appeal (1973) 47 ALJR 236 at 237).” : Comcare v Amorebieta (1996) 66 FCR 83 at 95.

25.     In Ilsley v Wattle Australia Pty Ltd (1997) 75 FCR 1 at 6, the Full Federal Court said that the question of causation is a question of fact :

“Whether total incapacity results from an injury is a question of fact. This is no different from the application to a given case of the common law principles of causation in negligence cases…a “common sense” evaluation of the causal chain is required – that evaluation being made in light of the statutory formula itself.”

26.     It does not matter that there may be a later cause of death or incapacity. In considering this causal chain in relation to workers’ compensation, the Full Court of the High Court of Australia said that:

“Once the appellant established that his underlying condition anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled “to compensation…under [that] Act”[14] upon proof that his total or partial incapacity for work resulted from that injury….The question then for the tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other – even later – causes.[15]. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause….Whether incapacity results from injury is a question of fact.” : Calman v Commissioner of Police  (1999) 167 ALR 91 at 101.

[14] Superannuation Act s 1(2).

[15] Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157 at 162; Commonwealth v Butler (1958) 102 CLR 465 at 476; Conkey & Sons Ltd v Miller (1977) 16 ALR 479 at 484; Bushby v Morris [1980] 1 NSWLR 81 at 86-8.

27.     We have not been referred to an authority which compels us to find that the intervention of an intentional and voluntary suicide means that an injury cannot result in death within the meaning of subsection 17(1). In deciding not to follow the authorities relied on by Comcare we have taken into account that the intentions of the Commonwealth and New South Wales legislatures in relation to the payment of compensation in the case of death appear to be different.

28.     Subsection 14(3) of the Workers Compensation Act 1987 (NSW) provides:

“Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury” [emphasis added].

Subsection 14(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) reads:

“Compensation is not payable in respect of an injury that is intentionally self-inflicted.”

29.     We are of the view that had the Commonwealth Parliament intended to exclude compensation to a dependant of a deceased worker who voluntarily took his or her own life it would have clearly said so in terms similar to the New South Wales legislation.

30.     On the basis of the view we have taken of the law, we have to decide as a matter of fact whether the admitted work-related injury (the aggravation of the depressive condition) suffered by Mr Sadlo resulted in his death. In making this decision we do not have to be satisfied that the injury was the proximate cause of his death.

Medical evidence

31.     Dr Saboisky’s opinion is that Mr Sadlo “killed himself because he was depressed and used carbon monoxide as his method.”[16] Dr Saboisky noted that Mr Sadlo was not happy with the move to Sydney and that Mr Sadlo held the view that Mr Hedger, his superior,  significantly contributed to his problems.

[16] Ex.A15.

32.     In his report of 28 October 2003[17] Dr Knox stated that “[i]t is my opinion that Mr Sadlo’s depression and gambling disorder were mutually reinforcing of one another.”  In his report of 1 July 2004[18] he expressed the opinion that “…it is highly probable that Mr Sadlo was behaving irrationally under the influence of a Major Depressive Disorder at the time of his suicide…”.

[17] Ex.R2.

[18] Ex. R3.

33.     Dr Donsworth is of the opinion that Mr Sadlo’s “Major Depressive disorder, accompanied by profound feelings of hopelessness, led to his suicide.” [19]  She is of the view that Mr Sadlo’s work did not contribute to his condition.

[19] Ex. R1.

34.     The clinical notes from the Deakin Family Surgery for 26 November 1998 record Mr Sadlo as suffering depression and a conversation between Mr Sadlo and his doctor as to gambling and “work pressure.” [20]

[20] Ex. R8.

Additional evidence

35.     We accept the evidence of Mrs Sadlo that leading up to September 2002 Mr Sadlo “was very upset about things happening at work and he would tell me about these things.”[21]  In his letter of 2 September 2002 to Mrs Sadlo he stated “…[f]or several months I have been extremely depressed – mainly about work, but also about our financial situation…”.[22]  He also wrote to Mr Hedger and another work colleague referring to his depression being exacerbated by his situation at work.[23]

[21] Ex. A9.

[22] Ex. A8.

[23] Exs. A4 and A5.

Determination of the issue

36.     Taking into account all of the evidence referred to we are satisfied that the aggravation of the depression suffered by Mr Sadlo resulted in his death. We have reached this conclusion as we are satisfied that although he voluntarily and intentionally committed suicide and that this was the proximate cause of his death, it did not break the chain of causation between the work-related injury and his death.

37.     We do not accept the view of Dr Donsworth that the situation at work made no contribution to the depression in view of the evidence to the contrary we have accepted. In any event the concession by Comcare undermines the basis of Dr Donsworth’s opinion in this regard.

DECISION

38. The decision of Comcare made 8 March 2004 is set aside and in substitution it is decided that Mrs Sadlo is entitled to compensation pursuant to section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

39.     The parties may seek further directions as to costs if necessary.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member

Signed:         .....................................................................................
  Associate

Dates of Hearing   11 – 12 August 2005
Date of Decision   6 October 2005
Counsel for the Applicant           Lorraine Walker
Solicitor for the Applicant            Ken Johnston Bedford & Co
Counsel for the Respondent       Elenne Ford
Solicitor for the Respondent       Deacons Lawyers