Sarkis v Summitt Broadway Pty Ltd trading as Sydney City Mitsubishi

[2006] NSWCA 358

Reported Decision: (2006) Aust Torts Reports 81-868

Court of Appeal

CITATION:	Sarkis v Summitt Broadway Pty Ltd trading as Sydney City Mitsubishi [2006] NSWCA 358
HEARING DATE(S):	26 June 2006; 27 June 2006
JUDGMENT DATE:	14 December 2006
JUDGMENT OF:	Handley JA at 1; Ipp JA at 78; Bryson JA at 79
DECISION:	1. Appeal allowed with costs.; 2. Judgment of the District Court set aside.; 3. In lieu thereof substitute a judgment for the plaintiff for $8,146.80 with effect from 20 May 2005 without costs.; 4. The respondent is to have a certificate under the Suitors’ Fund Act 1951 if qualified.
CATCHWORDS:	CAUSATION – suicide – whether chain of causation broken - NEGLIGENCE – damages – suicide of victim
LEGISLATION CITED:	Compensation to Relatives Act 1897 Workers Compensation Act 1987
CASES CITED:	AMP General Insurance Ltd v RTA (2001) 22 NSWCCR 247 Arabian v Tufnall and Taylor Ltd [1944] KB 685 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Bitumen & Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart (1998) 195 CLR 232 Corr v IBC Vehicles Ltd [2006] 3 WLR 395 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 Lisle v Brice [2002] 2 Qd R 168 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 March v E & M H Stramere Pty Ltd (1991) 171 CLR 506 NSW Insurance Ministerial Corporation v Myers (1995) 21 MVR 295 Tame v New South Wales (2002) 211 CLR 317 Telstra Corporation Ltd v Smith [1998] Aust Torts Rep 81-487 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 Warren v Coombs (1979) 142 CLR 531 Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36
PARTIES:	Rose Sarkis (Appellant) Summitt Broadway Pty Ltd trading as Sydney City Mitsubishi (Respondent)
FILE NUMBER(S):	CA 40491 of 2005
COUNSEL:	P Deakin QC/B Kelleher (Appellant) D G T Nock SC/J Catsanos (Respondent)
SOLICITORS:	Moray & Agnew (Appellant) Vandervords (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1381 of 2004
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ
LOWER COURT DATE OF DECISION:	20 May 2005

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CA 40491 of 2005

HANDLEY JA
IPP JA
BRYSON JA

14 DECEMBER 2006

ROSE SARKIS v SUMMITT BROADWAY PTY LTD TRADING AS SYDNEY CITY MITSUBISHI

CATCHWORDS

CAUSATION – suicide – whether chain of causation broken

NEGLIGENCE – damages – suicide of victim

FACTS

The deceased sustained whiplash injuries in a motor vehicle accident in the course of his employment. Some months later he took his own life. The deceased’s de facto partner and infant daughter recovered compensation for his death. The employer sued the negligent driver of the other vehicle under s 151Z of the Workers Compensation Act 1987 to recover the compensation paid to the dependants of the deceased. The trial Judge found that the suicide was a foreseeable consequence of the accident and that damages would have been recoverable under the Compensation to Relatives Act 1897. The driver appealed. HELD: (1) There was no evidence that the worker had symptoms of clinical depression, or had been contemplating suicide; (2) The events subsequent to the accident that overwhelmed the worker were extraneous to and not connected with the accident or its consequences; (3) Reasonable foresight of suicide does not make a tortfeasor liable for the consequences of the suicide, a plaintiff must also prove causation and that the damage was not too remote; (4) A finding of causation required a normative judgment involving considerations of policy; (5) In this case there was evidence of new and extraneous causes which intervened between the accident and the worker’s suicide; (6) The motor accident was not a cause of the suicide; (7) Appeal allowed with costs.

ORDERS

(1) Appeal allowed with costs.

(2) Judgment of the District Court set aside.

(3) In lieu thereof substitute a judgment for the plaintiff for $8,146.80 with effect from 20 May 2005 without costs.

(4) The respondent is to have a certificate under the Suitors’ Fund Act 1951 if qualified.

CA 40491 of 2005

HANDLEY JA
IPP JA
BRYSON JA

14 DECEMBER 2006

ROSE SARKIS v SUMMITT BROADWAY PTY LTD TRADING AS SYDNEY CITY MITSUBISHI

Judgment

1 HANDLEY JA: This appeal requires the Court to consider whether the driver of a motor vehicle and his third party insurer are liable in damages for the later suicide of a passenger who suffered a whiplash injury in an accident. In proceedings under s 151Z of the Workers Compensation Act 1987 by the injured man’s employer Bishop DCJ found for the plaintiff and awarded $130,000 pursuant to the statutory indemnity. The defendant has appealed.

2 On 5 June 2001 Sidney Beer (the worker) was in the driver’s seat of a stationary car when it was struck from behind by a motor vehicle driven by the appellant. The impact caused a whiplash injury which prevented him working. He had been driving in the course of his employment with the respondent, and its insurer paid workers compensation and medical and rehabilitation expenses in connection with this injury.

3 The worker suffered a further compensable injury on 3 September 2001 when, following a visit to Dr Manohar’s rooms for treatment, he fell on the stairs. This gave rise to a journey claim within the Act: s 10(3)(c). The fall caused comminuted and angulated fractures to two bones of his right hand and led to reflex sympathetic dystrophy.

4 On 28 December 2001 the worker drove his van to a secluded spot on a dirt road 120 metres off the Old Pacific Highway near Mooney Mooney and committed suicide. He ran hoses between the exhaust pipes and the van which he then sealed, and died from carbon monoxide poisoning. He left a suicide note stating “I’ve had enengh (sic) sorry Sid Beer 0297999236” (blue 167). This was the phone number of his home.

5 The worker had been living with Miss Morrow in a de facto relationship and had an infant daughter from an earlier relationship with Ms Saramore who lived in Newcastle. In 2002 Miss Morrow brought proceedings in the Compensation Court to recover compensation for the death of the worker and joined the daughter as a second respondent. Both claimed to have been partially dependent upon the worker and entitled to compensation under s 26. The claims depended on proving that the suicide was the result of the worker’s injuries on 5 June and 3 September. Section 14(3), which reproduced a provision in the 1926 Act, provided:

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

6 A long line of authority, which was reviewed by this Court in Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629, establishes that the suicide of an injured worker may not be “an intentional self-inflicted injury” for the purposes of s 14(3) or its equivalent. As Spigelman CJ said in AMP General Insurance Ltd v RTA (2001) 22 NSWCCR 247, 254 these appellate decisions are “of limited assistance” in other cases because the appeals were generally confined to questions of law.

7 The proceedings in the Compensation Court were compromised. The maximum lump sum compensation payable for the death claim was $266,800 but under s 25(1)(b) and s 26 weekly payments could also be awarded in respect of any dependant child under 16. Terms of settlement dated 30 October 2003 signed by counsel for the three parties were in evidence (blue 132). These fixed the compensation payable under s 26 at $150,000, dismissed the claim for weekly payments, and apportioned the lump sum equally between Miss Morrow and the daughter. The terms of settlement, in the form of consent orders, directed payment of $75,000 in respect of the daughter to the Public Trustee and payment of $75,000 to Miss Morrow. Section 85(1)(c) provided that compensation payable to a worker under the age of 18 shall be paid to the Public Trustee in trust for his or her benefit “if … the Compensation Court [so] directs”. Worker as defined in s 3(1A) includes the dependants of a deceased worker.

8 There was no other evidence to support the reasonableness of the settlement and the transcript, the award, and the Court file were not in evidence. This gave rise to the first point in the appeal. Section 151Z, so far as relevant, provides:

“(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:
(a) …
(b) …
(c) …
(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)
…”

9 Mr Deakin QC for the appellant submitted that the employer had failed to prove that the death benefits paid under the terms of settlement were “compensation … payable under this Act”. There was no dispute that the worker and his dependants (s 3(1A)) had recovered compensation and that the amounts had been paid. Mr Deakin submitted that the terms of settlement without more did not establish that the agreed amounts were payable under the Act, and since the plaintiff was relying on a compromise to establish liability it had to prove that it was reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72. In the absence of direct evidence it was submitted that the claim to indemnity must fail.

10 A judgment by adjudication or by consent is normally binding only on the parties and their privies, but this principle may be displaced by statute. In Bitumen & Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 the High Court held that s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 did this so that a judgment by adjudication against a concurrent tortfeasor established against another tortfeasor in subsequent contribution proceedings that the claimant was liable to the original plaintiff.

11 Section 26(b) of the 1987 Act provides that in cases of partial dependency:

“… the compensation payable by the employer under this Act shall be … (b) if agreement is reached for the payment of an amount less than the amount provided by paragraph (a) and the amount agreed upon is approved by the Compensation Court as reasonable and proportionate to the injury to those dependants – the amount so approved”.

12 Section 29(1) enables the Court to apportion between dependants the lump sum compensation payable on death. The daughter was an infant and, under the general law, any compromise of her rights had to be approved by the Court: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84, 85, 100, 111-115. The terms of settlement involved a compromise of the dependants’ claim on the employer and of the daughter’s claim to share in the compensation. The Court could not properly make orders in accordance with the terms of settlement unless it approved the double compromise of the daughter’s rights. Moreover s 26(b) required the Court’s approval of the amount of $150,000 “as reasonable and proportionate to the injury to [the] dependants”. Compare Arabian v Tufnall and Taylor Ltd [1944] KB 685.

13 There is no direct evidence that the Court was asked to or did approve the amount of $150,000 pursuant to s 26(b), or was asked to or did approve the double compromise of the daughter’s rights. However the payments of $75,000 to Miss Morrow and to the Public Trustee could not properly have been made without the approval of the Court, and the daughter’s share could not have been paid to the Public Trustee without an order to that effect. In these circumstances the presumption of regularity applies.

14 Where a public authority has exercised a power dependent on its prior formation of an opinion which was open on the facts before the authority, it is to be presumed, in default of reason to the contrary, that the requisite opinion was formed and the power was properly exercised: Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36, 46-7 per Moffitt JA delivering the principal judgment of this Court. This statement of principle was not disturbed on appeal: [1973] AC 774. In my judgment it applies in the present case and the employer established that compensation of $150,000 was payable under the Act on the death of the worker. The first attack on the judgment must fail.

15 This conclusion makes it unnecessary for the Court to consider whether the Judge erred in ruling that legal professional privilege had not been waived, and in refusing to direct that the file of the solicitors who acted for the employer in the Compensation Court be produced for inspection by the legal advisers for the defendant. I would emphasise however that in my opinion a party who seeks to prove that a settlement of a disputed claim is reasonable waives legal professional privilege in relation to that settlement: BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72 para [14].

16 The other issue is the challenge to the Judge’s finding that damages were recoverable under the Compensation to Relatives Act 1897 for the death by suicide of the worker. There was no dispute that the employer was entitled to be indemnified for compensation paid in respect of the whiplash injury, and was not entitled to be indemnified for compensation paid in respect of the injury sustained in the fall. The Judge held that “on all the evidence a finding of a material contribution by the motor vehicle accident to the deceased’s suicide was unavoidable”. In other words the necessary causal link between the accident and the death had been established. He also held that:

“… a reactive depression to physical injuries caused in a motor vehicle accident is a foreseeable consequence in the light of modern medical and psychological knowledge … the fact that it culminated in suicide in this instance does not have to constitute a necessarily foreseeable consequence.”

17 Liability under the Workers Compensation Act for a worker’s suicide depends on proof of causation. Liability under the Compensation to Relatives Act also requires proof that the suicide was a foreseeable consequence of the injury. The dependants could rely on the combined causative effect of both injuries but in seeking indemnity the employer can only rely on the motor vehicle injury. There was no evidence and no finding that the fall was a consequence, or a foreseeable consequence, of the earlier injury. The fact that “but for” the latter the worker would not have been visiting Dr Manohar’s rooms does not establish causation: March v E & M H Stramere Pty Ltd (1991) 171 CLR 506, 516 (March); Chappel v Hart (1998) 195 CLR 232 at [26].

18 It may be accepted that the whiplash injury and its consequences were among the matters that affected the worker and drove him to suicide. However this does not necessarily establish causation. The injury may only have been an antecedent condition of the suicide. As Mason CJ said in March at 517:

“… the ‘but for’ test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause …

The facts of, and the decision in, M'Kew [1970] SC (HL) 20 illustrate the same deficiency in the test … The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful act, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action.”

19 It is therefore necessary to consider the evidence of the worker’s situation between his motor vehicle accident and the fall, and the evidence of the later events which affected him.

20 The worker attempted, unsuccessfully, to get back to work on light duties eight days after his motor vehicle accident (black 39, 57). Later he thought that his back would be sufficiently rehabilitated and he would probably be ready to go back to work in January or February (black 40-41, 44, 58). Prior to the hand injury Miss Morrow also thought that the neck and back could have been rehabilitated and that he was going to get back to work (black 41, 58). Ms Fuller, the employer’s human resources manager, said that before the fall the worker was confident he could do his old job provided he paced himself (black 89).

21 Dr Chang, his general practitioner, saw the worker a number of times after his motor vehicle accident and his clinical notes are in evidence (blue 209-17). A number of the relevant entries are referred to in Dr Maguire’s report of 18 November 2002 (blue 241-2). On 14 June, shortly after the motor vehicle accident, the worker was complaining of pain “not unbearable, more annoying … also irritated because he would rather be at work”. On 21 June he reported to Dr Chang that he felt “a lot better”. On 8 August he said that he was going well with physiotherapy and was considering returning to work on light duties for the second time on 13 August. On 5 and 25 October, after the fall, he reported (blue 215-6) “neck slowly improving since stopping physio”. Finally on 22 November he recorded (blue 216, 242) “neck has its moments, it wouldn’t stop me doing light duties”.

22 Dr Chang did not record any complaint or symptom of depression, or prescribe anti-depressant medication. However in 1999 a Newcastle general practitioner, Dr Mudaliar, had treated the worker for depression. He recorded in his report of 20 October 2003 (blue 305):

“I saw him a month later and he reported feeling considerably better on anti-depressant. He remained on Zoloft for a further 2 months and ceased medication because he had found work and was back to normal emotionally … In my opinion his depression in 1999 was related to being jobless and he recovered from this completely.”

23 Miss Morrow confirmed this and said she had suggested to the worker that he seek treatment (black 24-5, 52-3).

24 The other doctors who treated the worker after his motor vehicle accident, Drs Manohar, Kenna and Conolly, did not record any complaint or symptom of depression. On 1 August Dr Kenna recorded the worker’s complaints of neck and some shoulder pain and associated headaches (blue 288). He thought the worker would be free to return to work in some capacity within the next 3 to 4 weeks “but his symptoms may well linger for some time … until there is further resolution”. He concluded (290, 293) “that he will certainly be fit and capable of returning to work in the next three weeks initially on suitable duties and certainly reduced hours. Over a period of several weeks he then can be upgraded to return to pre-injury duties”.

25 On 19 November Dr Kenna reported (295) “that his neck pain had improved but this seemed of minimal issue compared to his hand at this point of time”. He concluded (296):

“I consider he is unfit for work, not due to the initial injury but due to this recent injury … The cause of his incapacity for work now is substantially due to this recent injury though clearly he was partially incapacitated but was approaching fitness to return to work pertaining to the initial cervical injury.”

26 Dr Manohar reported to Dr Chang on 6 August (blue 201) that the worker was gradually improving. The pains were gradually decreasing and the range of motion increasing. On 3 September, the day of the fall, he recorded that the worker had ceased physiotherapy and his headaches had disappeared (202). On 12 September he recorded that the fall had caused “exacerbation of pre-existing neck lesion” (203) and on 17 September he noted that the worker’s pains in the cervical region had not improved but “the worst pain is in the arm” (204). On 3 October he recorded that the worker still had neck pain extending to the shoulders but “his neck pain is reasonably good as he has not been performing any major activities” (205). On 19 November he advised the worker to undertake a two week course of physiotherapy for his neck pain (206) and on 10 December he recorded that the worker’s neck pain was improving and he was advised to continue with therapy (207).

27 Dr Conolly’s clinical notes and contemporary reports are not in evidence, but Dr Maguire referred to them in his report of 11 November 2002 (242):

“Dr Conolly also saw Mr Beer regularly after commencing treatment in October 2001 for his hand injury. There are no references to Mr Beer appearing depressed or emotionally disturbed. Dr Conolly saw Mr Beer only eight days before his death. He wrote ‘he had lost some of the pain of his right hand and arm and was regaining some movement of function …’.

28 When Dr Conolly saw the worker on Thursday 20 December he provided a certificate that he would not be fit for work until 14 January. One might think that keeping an appointment for this purpose would be of no importance to someone if he was contemplating suicide in the next few days.

29 Miss Morrow said that following his motor vehicle accident the worker was not happy because he could not work (black 37) and was a bit difficult and angry (38). However neither then nor after his fall did she suggest that he seek treatment for depression as she did in 1999.

30 The only suggestion in the evidence that the worker was depressed before his fall was in the report of 26 July by Alison Dalley, an occupational therapist at CRS (blue 32-9). She wrote (34):

“Mr Beer reported that he has become depressed since his injury. Mr Beer reported that his inability to do what he wants due to his injury, his lack of sleep due to his injury and his concern that he may lose his job have all contributed to his depression, frustration and at times, anger.”

31 Her report became the basis of the return to work program CRS submitted to the insurer on 3 August (226). What appears to be a CRS internal working paper completed between 9 and 10 August (227) included, under psychological issues, the following (229):

“Depressed someone else may take job – cannot do anything … has a friend who is a psychologist who can talk to – feels as though getting better – waking up at night due to the pain (take morphine).”

32 These references are not evidence of a diagnosis of clinical depression by the worker or the occupational therapist. They are only complaints by the worker that he was worried or feeling down. “[A] person is not liable, in negligence, for being a cause of distress … fear, anxiety … [or] despondency, without any resulting psychiatric illness”: Tame v New South Wales (2002) 211 CLR 317, 329 per Gleeson CJ.

33 Reference has already been made to the worker’s statements to his treating doctors between 26 July and his fall on 3 September: paras [21], [24], [26]. These indicate his continuing improvement and growing optimism.

34 There is no contemporary evidence that prior to his fall the worker had symptoms of clinical depression, or was contemplating suicide. His condition was improving and he and his doctors were hopeful that he could soon get back to light duties, and then to normal duties.

35 The fall on 3 September had a significant impact on the worker. Apart from the injuries to his right hand and the reflex sympathetic dystrophy which supervened, it exacerbated his pre-existing neck lesion (blue 203). The complaints recorded by his treating doctors after the fall emphasised the impact of the injuries to his hand, and the continuing improvement in his neck. The worker believed that his neck would not stop him doing light duties: paras [21], [25], [26], and Dr Kenna reported on 19 November that the neck was a “minimal issue” and that “the cause of his incapacity for work now is substantially due to this recent injury”.

36 Miss Morrow confirmed this (black 41, 45). Speaking of the situation in December she said (44):

“I think he thought that his back would’ve been sufficiently rehabilitated that he could’ve resumed work but the hand definitely wasn’t better. It would’ve taken – he needed longer time.”

37 She said that, at the worker’s suggestion, they went to see a movie on Boxing Day but only stayed for 40 minutes because his neck was very uncomfortable (black 45).

38 She said that a number of extraneous events during the second half of December caused the worker considerable worry and distress. He had been engaged by the City Council to organise events at the Opera House on New Year’s Eve and had lined up about 30 people for this work. The events were cancelled just before Christmas and he took this badly and was upset (black 50, 68-9).

39 He was having difficulties obtaining access to his daughter and this made him angry and frustrated (black 45, 61, 72-3). He had bought a mobile phone as a Christmas present for her and was frustrated because he could not decode the PIN number and get the phone to work. This appeared to weigh on his mind (black 44, 61-2, 73). He had saved up some money to buy other presents but just before Christmas there was a break-in at their home and the money was stolen. The worker was very upset about this and nearly reduced to tears (black 42, 43, 62).

40 Just before Christmas he received a letter from the workers compensation insurer dated 18 December (a Tuesday) notifying him that on 1 January, 26 weeks after his motor vehicle accident, his compensation payments would be reduced in accordance with the Act (blue 307). In fact the worker was entitled to the higher rate until 26 weeks after 3 September. The evidence does not establish when this letter was received. The worker’s occupational therapist rang him on 19 December asking for a doctor’s certificate (306) and there is no reference in her notes to the pending reduction in his payments. It appears that this matter was not raised with Dr Conolly on the 20th.

41 According to Miss Morrow the worker became very distraught and upset as a result of receiving this letter (44, 64), and because of the time of the year he could not speak to anyone at the insurance company to have the situation clarified.

42 However the Judge accepted the evidence of Ms Fuller, the human resources manager of the employer. She said that the worker, who was confused and upset, spoke to her about the letter. She clarified the position with the insurer and told him that another six months period at the higher rate began after the fall, and he should disregard the letter. She was satisfied that she had fully explained the situation to him (red 19). These findings cannot be disturbed.

43 The worker’s reaction to these events placed a strain on his relationship with Miss Morrow. Constable Tessadri in her statement dated 15 February 2002 (blue 172), based on her notes of 30 December, stated that Miss Morrow told her that on the evening of 27 December, the day before the worker committed suicide she had told him “that she could not go on in the relationship and that she was thinking of leaving Sydney” (173). In her oral evidence Miss Morrow said she had been very upset but denied saying this. The constable was not called and the Judge accepted Miss Morrow’s evidence. This finding cannot be disturbed.

44 Miss Morrow’s own version of the events that evening was not much different. She said (black 46-7):

“A He sat down in the lounge chair and I said, why won’t you tell me where you’ve been and he really didn’t offer any information, had the same look on his face and I said to him, I said, you’ve gotta talk to me because it’s very, very difficult to be in this situation where you’re not going to give me any information and I said it’s very stressful for me. I remember saying that to him. He just really didn’t offer any information and he got up and he went into the second bedroom and he closed the door.

Q At any stage in that conversation did you tell him you were leaving?

A I said that – what I said was that it was very difficult for me and I said I don’t know how much longer I could take his attitudes. I wanted him to talk to me.”

45 Dr Westmore, a psychiatrist qualified by the solicitors acting for Miss Morrow in the Compensation Court, recorded the following conversation with her on 26 September 2003 (blue 236, 238):

“On 27 December she said he was very withdrawn. She told him they had to talk and she said to him she didn’t know how long the relationship could last with these pressures in their lives. She said he went to his bedroom and shut the door.”

46 She said that at that time a whole lot of issues were affecting him (black 68).

47 The evidence of Miss Morrow and the treating doctors establishes strong, if not overwhelming, grounds for a finding that by 28 December the motor vehicle accident was no more than “an antecedent condition not amounting to a cause” (para [18]) of the worker’s suicide. The worker last saw Dr Chang on 22 November, Dr Kenna on 19 November, Dr Manohar on 10 December and Dr Conolly on 20 December. Apart from the episode at the movies on Boxing Day Miss Morrow perceived the worker’s neck injury to be much less important than his hand injury and this was the view of all his treating doctors when they last saw him. Although his neck injury continued to trouble him, it had been exacerbated by his fall, but even so was getting better.

48 The events in December that overwhelmed the worker were extraneous, and not connected with the motor vehicle accident or its consequences. Apart from his difficulties with the phone they were the result of deliberate action by third parties.

49 These matters are established by unchallenged documentary evidence, or the oral evidence of Miss Morrow and Ms Fuller that was accepted by the Judge. This Court is in as good a position as the Judge to draw inferences from this evidence, and to evaluate its combined effect: Warren v Coombs (1979) 142 CLR 531.

50 The Judge reviewed the psychiatric evidence (red 21-5). His initial findings were (31) that the link between the suicide of the deceased and the motor vehicle accident was adequately established for workers compensation purposes. His findings on causation and remoteness at common law were (34):

“… on all the evidence a finding of a material contribution by the motor vehicle accident to the deceased’s suicide was unavoidable … I consider that a reactive depression to physical injuries caused in a motor vehicle accident is a foreseeable consequence in the light of modern medical and psychological knowledge … the fact that it culminated in suicide in this instance does not have to constitute a necessarily foreseeable consequence.”

51 Drs Westmore and Milton gave oral evidence. Dr Maguire did not. The Judge preferred the views of Drs Westmore and Maguire and rejected those of Dr Milton. This Court cannot reverse the Judge’s findings about the evidence of Dr Milton, but it is still necessary to evaluate the evidence of the others.

52 Dr Westmore was instructed by Miss Morrow’s solicitors that there was a causal link between the two injuries and “his subsequent onset of depression and … suicide” (blue 234). He recorded a conversation with Miss Morrow in which she said that the suicide was a great shock to her and she had no warning (236). He referred to the history obtained from Miss Morrow and some of the contemporary notes of Drs Chang, Manohar, Kenna and Conolly. He concluded (blue 239):

“On the available history, there is a direct and positive relationship between his workplace injuries, the onset of his depression and his later suicide. On the balance of probability his employment was a substantial contributing factor to his depression and his suicide … [In] my opinion therefore … Mr Beer was so affected by his mental illness, specifically by his depression, that he did lose the power of volition, in particular he lost the capacity to understand that he need not and should not act in such a way that would end his life. He was in other words, deprived of the will or determination to act in a way which would not end his life. His mind was so unhinged to dethrone his power of volition.”

53 With respect to Dr Westmore he appears to reason back from the suicide to a finding of clinical depression which deprived the worker of his power to make any other decision. His reasoning would apply to almost every suicide which did not involve voluntary euthanasia. However his evidence cannot establish a causal link between the motor vehicle accident and the suicide. His opinion that there was such a link with his “workplace injuries” and that “his employment” was a substantial contributing factor cannot do this.

54 Dr Westmore’s oral evidence took the matter no further. He had assumed that the worker suffered from depression (black 129), although in re-examination he said that he believed he “was probably suffering from depression at the time he killed himself” (144). This did not address the causal relevance of the motor vehicle accident or the worker’s condition prior to the stressful events in December.

55 He was aware of the CRS report (blue 127, black 241) but accepted that there had been no diagnosis or report of clinical depression in the worker’s lifetime (126). He acknowledged that in these circumstances a retrospective diagnosis of clinical depression was difficult (black 124-5, 126). He considered that all the stressful events of December were significant (132, 133, 141) and that it was the combination that drove him to suicide (130). He agreed that a person who commits suicide may not be clinically depressed. He gave this evidence in cross-examination which confirmed the opinions in his report (135):

“Q When you come to express your opinion about what caused any clinical condition in this man you refer to injuries, workplace injuries in the plural, that’s correct?

A Yes.

Q You did not seek to differentiate between the arm incident and the motor vehicle accident, that’s correct?

A That’s correct, yes.

Q And in fact you referred to in even broader terms, his employment as being the contributing factor and I think we’ve already discussed that, including his perception of harassment and unfair treatment?

A Yes.”

56 Dr Maguire gave four reports to the workers compensation insurer dated 11 October 2002, 8 July and 10 October 2003 and 5 September 2004 (blue 240-59). The first three were for the compensation proceedings, the last for the District Court proceedings. They were based on increasing information about the last few months of the worker’s life. In his report of 10 October 2003 he said (253-4):

“… it is simply not possible to make any accurate or valid assessment of Mr Beer’s mental state in the period leading up to his death. As I have previously noted, there were no observations of him appearing or behaving in a significantly depressed manner by a number of experienced clinicians, including his general practitioner, in the months leading up to his death. There are no grounds for stating that any degree of depression that was present constituted a significant psychiatric illness or one that would have impaired his capacity ‘to comprehend the ramifications of his actions’.”

57 In his last report Dr Maguire said (258-9):

“… it is more probable than not that Mr Beer was suffering from depression at the time he took his life … It’s also more probable than not that Mr Beer’s depression was caused or triggered by his pain and disability resulting from his neck injuries sustained in the motor vehicle accident in June 2001 … While his pain and depression would have been aggravated further by the fall in September 2001 and the other stressors in his life in late 2001, it cannot be said that the pain from his neck was not still a significant contributing factor to his depressed mood at the time he took his life. On that basis I would consider the motor vehicle accident materially contributed to Mr Beer’s depressed mood, which in all probability played a significant part in leading him to take his life.”

58 The only additional information Dr Maguire received before his last report were the statements of Miss Morrow and Ms Saramore (256). Miss Morrow’s statement is not in evidence. However she had told Dr Chang on 31 December 2001, as recorded in his clinical notes, that there had been “no indication to her” of the likelihood of suicide (blue 127) and she had told Dr Westmore that the suicide had been a “great shock to her and she had no warning” (blue 236). This information had been before Dr Maguire previously. Ms Saramore said that the last time she saw the worker “He just seemed to be depressed or quite flat and quite frustrated with it all” (blue 143).

59 This added little to what Dr Maguire had been told before. He referred in his report of 10 October 2003 to Miss Morrow’s statement that she had no warning about the suicide (blue 251). His statement about the effect of the worker’s neck pain contained a double negative which reversed the onus of proof (“cannot be said that the pain from his neck was not still a significant contributing factor”). It could not support the Judge’s findings.

60 Dr Maguire’s conclusions are inconsistent with the contemporary notes of the treating doctors after the second accident and the evidence of Miss Morrow. His evidence is documentary and this Court is in as good a position to evaluate it as the trial Judge. His final report when the insurer was seeking to enforce the indemnity is inconsistent with his previous reports and his change of mind was not supported by new information of any substance. The altered opinions in his final report are entitled to little weight.

61 A plaintiff seeking to recover damages from a tortfeasor for a suicide or attempted suicide must establish that it was caused by the tort, and that the damage was not too remote.

62 Reasonable foresight does not establish legal responsibility. Causation must also be established. Reasonable foresight is not a test of causation, but marks the limits beyond which a wrongdoer will not be held responsible for his wrongful act: Chapman v Hearse (1961) 106 CLR 112, 122; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 528; March (1991) 171 CLR 506, 510.

63 A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected and unforeseeable manner: Chapman v Hearse (1961) 106 CLR 112, 120-1.

64 The Judge found that it was reasonably foreseeable that the physical injuries suffered in the motor vehicle accident could bring on a reactive depression which then caused the victim to take his own life: above para [16]. There is now a substantial body of decisions supporting such findings including Telstra Corporation Ltd v Smith [1998] Aust Torts Rep 81-487 (NSWCA); Lisle v Brice [2002] 2 Qd R 168 (CA); Corr v IBC Vehicles Ltd [2006] 3 WLR 395 (CA) and the cases there cited. In my judgment these findings cannot be disturbed.

65 The Judge’s finding of causation raises different considerations which were considered by this Court in AMP General Insurance Ltd v RTA (2001) 22 NSWCCR 247. At 257 Spigelman CJ said, omitting citations:

“… causation is not only a factual question, it is also a normative one … Considerations of policy are relevant and value judgments are required to determine matters of causation for the purpose of attributing liability in negligence. Such considerations, in my opinion, lead to the conclusion that deliberate self-infliction of harm should generally be seen to break the causal link.”

66 He cited (258) from the judgment of Mason CJ in March para [18] above and from the judgment of McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408, 428:

“… the common law concept of common sense causation accepts that the chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.”

67 Spigelman CJ continued:

“Actions involving the deliberate infliction of self harm should generally be regarded as ‘independent and unreasonable’ and as a break in the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility.”

68 Heydon JA at 303 held, following March (1991) 171 CLR 506, that causation must be determined by applying commonsense to the facts, that the but for test although helpful was not definitive, and that “it was a question of fact into which considerations of policy and value judgments necessarily entered”.

69 This Court held that the tortfeasor was not legally responsible for the consequences of the victim’s suicide in 1998, over five years after the accident but only a few days after his cross-examination in Court had brought on severe depression, because causation had not been established. The causal chain had been broken by the cross-examination and its consequences: paras [40], [152]-[153], [200], [201].

70 In the following suicide cases there was no intervening cause and causation was established: NSW Insurance Ministerial Corporation v Myers (1995) 21 MVR 295 (CA); Telstra Corporation Ltd v Smith [1998] Aust Torts Rep 81-487 (NSWCA); Lisle v Brice [2002] 2 Qd R 168 (CA) and Corr v IBC Vehicles Ltd [2006] 3 WLR 395 (CA). Ward LJ dissented in the last case but not on the issue of causation. This was established without difficulty because, as all the Judges emphasised, there was no other cause of the worker’s attempted suicide: paras [49], [66], [68], [81], [92].

71 Since causation involves the application of commonsense to the facts, and requires a normative judgment involving considerations of policy, the Court is not bound by the opinions of psychiatrists but must make up its own mind. Their evidence may assist the Court in forming its judgment but cannot be determinative.

72 In this case there is no lack of new and extraneous causes intervening between the motor vehicle accident and the worker’s suicide. They include the fall on 3 September and the events which affected the worker after 20 December.

73 A commonsense view of the worker’s personal and medical history between the motor vehicle accident and the fall gives no support to the view that his neck injury was likely to drive him to suicide. His condition was improving and he was hoping to start back at work on light duties within a few weeks.

74 The injury sustained in the fall was a setback, but by late November his condition was improving and he was hopeful of getting back to work in the New Year. Until some time on 20 December the worker appeared to Miss Morrow and his treating doctors to be behaving normally without any signs of depression. This was more than six months after the motor vehicle accident and more than three months after his fall.

75 In my judgment the Court cannot find as a matter of commonsense that the motor vehicle accident was a cause of his suicide. If he was suffering from clinical depression when he committed suicide it was because the events of the last few days had overwhelmed him. As a matter of commonsense they were the cause and there are no considerations of logic or policy which require the Court to reach a different conclusion.

76 In these circumstances it is not necessary for this Court to decide whether the worker’s suicide itself broke the chain of causation. The dicta of Spigelman CJ: paras [65], [67] and the dissenting judgment of Ward LJ in Corr v IBC Vehicles Ltd: para [70] support the view that a foreseeable act of self harm during depression caused by injuries should be held on policy grounds to break the causal chain.

77 The respondent is entitled to be indemnified for compensation paid for incapacity caused by the motor vehicle accident and related medical expenses. The amount after giving credit for payments by the motor vehicle insurer is $8,146.80. This includes weekly compensation until the worker’s suicide. It may have been arguable that some of the compensation was for incapacity caused solely by the fall. Since the appellant did not take the point the Court will substitute a judgment for the full amount of $8,146.80. The following orders should be made:

(1) Appeal allowed with costs.

(2) Judgment of the District Court set aside.

(3) In lieu thereof substitute a judgment for the plaintiff for $8,146.80 with effect from 20 May 2005 without costs.

(4) The respondent is to have a certificate under the Suitors’ Fund Act 1951 if qualified.

78 IPP JA: I agree with Handley JA.

79 BRYSON JA: I agree with Handley JA.

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