Vaccaro v MLC Limited

[2016] NSWDC 85

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Vaccaro v MLC Limited [2016] NSWDC 85

Hearing dates:

9, 10, 11 November 2015; 22 January; 6 May 2016

Date of orders:

27 May 2016

Decision date:

27 May 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict for the plaintiff in the sum $200,000;

 

2. Interest is assessed in the sum of $39,627.25;

 

3. Judgment for the plaintiff in the sum of $239,627.25;

 

4. The exhibits may be returned;

 5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

CONTRACT – insurance – construction of policy terms – contested claim for payment of benefit for accidental death – whether exclusions apply

Legislation Cited:

Civil Liability Act 2002, Pt 6, s 3, s 5D
Civil Procedure Act 2005, s 56, s 58
Evidence Act 1995, s 63(1), s 136
Insurance Contracts Act 1984 (Cwth), s 57
Insurance Contracts Regulation 1984 (Cwth), reg 32
Mental Health Act 1990
Uniform Civil Procedure Rules 2005, Sch 7, r 31.28

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Australian Casualty Co Ltd v Federico [1986] HCA 32; (1986) 160 CLR 513
Awa v Independent News Auckland [1996] 2 NZLR 184
Bonitto v Fuerst Bros & Co Ltd [1944] AC 75
Fox v Percy [2003] HCA 22; 214 CLR 118
Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited & Ors [2005] NSWCA 66
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mason v Demasi [2009] NSWCA 227
Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711
NSW v Tyszyk [2008] NSWCA 107
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) NSWLR 116
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Equuscorp Pty Ltd v Wilmoth Field Warne [2007] VSCA 280; (2007) VR 250
Russell v Edwards [2006] NSWCA 19; (2006) NSWLR 376
St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480
Strinic v Singh [2009] NSWCA 15
Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165
White v Overland [2001] FCA 1333
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Category:

Principal judgment

Parties:

Pasquale Vaccaro (Plaintiff)
MLC Limited (ACN 00 000 402) (Defendant)

Representation:

Counsel:
Mr CJ Callaway (Plaintiff)
Mr M McCall (Defendant)

  Solicitors:
Somerville Laundry Lomax (Plaintiff)
Henry Davis York (Defendant)

File Number(s):

2014/290232

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [7]
Issues for determination	[8] – [16]
Evidence overview	[17] – [18]
Credibility and reliability of testimony	[19] – [26]
Procedural background and identification of submissions	[27]
Facts	[28] – [169]
(1) The policy and its terms	[30] – [35]
(2) Deceased’s background circumstances and health	[36] – [84]
(3) Circumstances of the death of the deceased	[85] – [95]
(4) Police observations at the scene	[96] – [104]
(5) History of Zopiclone prescriptions in medical records	[105] – [111]
(6) Non-lethal Imovane overdose on 22 August 2003	[112] – [134]
(7) Police investigation of the deceased’s death	[135] – [139]
(8) Dr Chamberlain’s letter dated 30 August 2010	[140] – [141]
(9) Post-mortem and coronial toxicology test results	[142] – [146]
(10) First coronial inquiry and issued death certificate	[147] – [148]
(11) Initial claim under the policy and its rejection	[149] – [158]
(12) Second coronial inquest	[159] – [163]
(13) Subsequent claim under the policy and its rejection	[164] – [169]
Forensic psychiatric evidence of Dr Huntsman	[170] – [213]
Rejection of forensic pharmacology report	[214] – [243]
Issue 1 – Claimed attempted suicide/self-injury on 22/8/2003	[244] – [257]
Issue 2 – Whether the deceased suicided	[258] – [280]
Issue 3 – Claimed inference of intentional self-inflicted injury	[281] – [314]
Issue 4 – Contribution of Zopiclone and alcohol to drowning	[315] – [332]
Issue 5 – Whether deceased’s death was accidental	[333] – [343]
Issue 6 – Whether policy exclusions are engaged	[344] – [355]
Issue 7 – Date for calculating interest	[356] – [364]
Conclusion	[365]
Interest	[366]
Disposition	[367]
Costs	[368]
Orders	[369]
Appendix	-

Nature of case

1. The plaintiff, Pasquale Vaccaro, brings these proceedings against the defendant, MLC Limited, claiming damages for alleged breach of a contract of insurance which the parties entered into on 3 April 1992.

2. The plaintiff claims that the alleged breach occurred when the defendant refused to pay the plaintiff’s claim for the insured amount of $200,000 for accidental death cover. The plaintiff therefore also claims interest on the amount claimed to be due under the contract, pursuant to s 57 of the Insurance Contracts Act 1984 (Cwth).

3. The policy of insurance was between the plaintiff, his late wife, Ingrid Vaccaro [“the deceased”], and the defendant’s parent company, the National Bank of Australia Limited. According to the relevant terms of the policy, described as the National Australia Accident Plan Policy Document, provision was made, subject to excluded events, for the payment of the insured amount in the event of the accidental death of any of the persons named in that policy.

4. On 31 January 2009, the deceased died as a result of drowning in a swimming pool at her home. At that time the deceased was named as a person to whom the policy applied.

5. Post-mortem toxicology tests performed on samples of the deceased’s blood revealed the presence of 0.217g/100mL of alcohol, 2.9mg/L of Ibuprofen, and 1.2mg/L of Zopiclone. There is no dispute that the drug Zopiclone is a non-benzodiazepine prescription sleeping drug with the proprietary name Imovane. Those names are used interchangeably in these reasons.

6. There was no reliable evidence that the substances identified in the preceding paragraph, either individually or in combination, were at lethal levels. The defendant argued it should be inferred that the deceased had either suicided, or alternatively, that she had intentionally inflicted injury to herself, these being excluded events under the policy.

7. The defendant’s contentions were in part based on a previous hospital admission of the deceased, almost 6 years earlier, on 22 August 2003, for an overdose of Zopiclone in combination with alcohol, which whilst at first thought to be an attempted suicide, had been clinically and medically assessed as being an accidental overdose, without suicidal intent.

Issues for determination

8. By paragraph 10 of its amended defence, which traversed paragraph 10 of the plaintiff’s statement of claim, the defendant admitted that on 13 December 2012, the coroner made the finding: “That the cause of death was accidental drowning with the antecedent cause being excessive alcohol and medication consumption”. That cited finding of the coroner does not bind the parties or the Court in this litigation, as the defendant made clear during the course of the hearing: T25.50; T26.6.

9. By paragraph 13 of its amended defence filed on 28 October 2015, the defendant pleaded:

“… the defendant says that the circumstances leading to the deceased’s death do not fall within the insuring clause of the accidental death benefit and in the alternative that the claim is excluded as the death resulted from suicide, intentional self-inflicted injury, and/or being under the influence of drugs not prescribed by a Medical Practitioner.”

[Emphasised text as in the amended defence]

10. The use of the loosely ambiguous term “and/or” has been authoritatively described elsewhere as the “bastard conjunction” that is to be regarded as being unacceptable in pleadings due to its vagueness and scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716. The applicability of the matters raised by that cited portion of the pleaded defence will depend upon an objective construction of what the parties intended by their contract: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165. The contract itself does not use the “and/or” formulation.

11. Neither the original nor the amended defence make any reference to ingestion by the deceased of the drug Ibuprofen. I therefore propose to treat the references in the evidence to that drug as being irrelevant to the issues calling for decision. There is no evidence that the post-mortem finding of Ibuprofen was at levels that could have caused either death or injury. There is no evidence that Ibuprofen was a drug that was on current prescription to the deceased at the time of her death.

12. Neither the original nor the amended defence make any reference to the deceased’s ingestion of alcohol, or any form of that substance. There was no evidence that alcohol should be considered as being a drug within the meaning of the policy wording.

13. Notwithstanding the omission of any reference to alcohol in the filed defences, having regard to the way the parties have approached the issues in the litigation, the ingestion by the deceased of alcohol before her death was clearly a relevant consideration to the pleaded defences of alleged suicide and alleged self-inflicted injury. I therefore propose to treat the evidence of the deceased’s blood alcohol concentration as being relevant to the issues to be decided, despite there being no reference to alcohol in the filed defences.

14. Following on from those matters, a review of the pleadings, the evidence and the submissions, identifies the following issues that arise for determination in the following convenient order:

Issue 1 -   Whether on 22 August 2003, the deceased’s combined ingestion of Zopiclone and alcohol was because of a suicide attempt, or alternatively, a self-inflicted injury. I have concluded that each of those questions should be answered in the negative. My reasons for this conclusion appear at paragraphs [244] to [257] below;

Issue 2 -   Whether it should be inferred, that on 31 January 2009, the deceased had suicided. I have concluded that question should be answered in the negative. My reasons for this conclusion appear at paragraphs [258] to [280] below;

Issue 3 -   Whether it should be inferred, that on 31 January 2009, the actions of the deceased in ingesting Zopiclone and alcohol amounted to an intentional self-inflicted injury. I have concluded that question should be answered in the negative. My reasons for this conclusion appear at paragraphs [281] to [314] below;

Issue 4 -   Whether, on a proper construction of the policy, the deceased’s ingestion of alcohol, or Zopiclone, either individually, or both together, within the meaning of the policy, comprised “any other contributing cause” to her death by drowning. I have concluded those questions should be answered in the negative. My reasons for this conclusion appear at paragraphs [315] to [332] below;

Issue 5 -   Whether, on a proper construction of the policy definition of accidental death, the circumstances of the death of the deceased were accidental, and without other relevant contributing cause. I have concluded that those questions should be answered in the affirmative. My reasons for this conclusion appear at paragraphs [333] to [343] below;

Issue 6 -   Whether the relevant policy exclusions of suicide or intentional self-inflicted injury are engaged by the circumstances of the deceased’s death so as to defeat the plaintiff’s claim. I have concluded that question should be answered in the negative. My reasons for this conclusion appear at paragraphs [343] to [355] below;

Issue 7 -   If it is determined that the deceased’s death was accidental, without any other relevant contributing cause, for the purpose of calculating interest, by what date should the defendant be taken to have been in breach of its contractual obligation to the plaintiff. I have concluded that by 25 March 2013, the defendant was in breach of those obligations. My reasons for this conclusion appear at paragraphs [356] to [364] below.

15. Although the defendant has admitted the deceased died by drowning, the plaintiff carries the onus of proving the death was accidental. Once the plaintiff establishes that fact, the defendant carries the onus of proving, on the balance of probabilities, the factual basis for the operation of the claimed policy exclusions.

16. Although the proceedings involve a claim for damages requiring the resolution of a causation question, the causation provisions of s 5D of the Civil Liability Act 2002 do not apply to this case because this is not a claim involving negligence. Furthermore, the operation of s 3 of that Act, excludes the application of that Act to a claim for damages under an insurance policy in respect of the death of a person insured.

Evidence overview

17. The plaintiff tendered a voluminous bundle of documentary exhibits: Exhibit “A”, pp 1 – 418. The defendant tendered its own bundle of exhibits: Exhibit “1”, pp 1 – 207. There was considerable overlap within those bundles. Oral evidence was given by the plaintiff, and by Dr Stephen Huntsman, who provided a forensic psychiatric opinion about the circumstances and the cause of the deceased’s death, based on his analysis of contemporaneous documents: Exhibit “A”, pp 83 – 87; T45 – T99. Dr Huntsman’s opinion pointed to errors of factual assumption in the report of the coroner’s pathologist who had carried out the autopsy on the deceased. The initial coronial finding, which had been conducted only on a review of the papers, was that the deceased had suicided. A second coronial finding did not adopt that finding, and reached the conclusion of accidental drowning, as cited at paragraph [8] above.

18. The plaintiff tendered a letter from the deceased’s treating general practitioner, Dr Nigel Chamberlain: Exhibit “A”, pp 81 – 82. The plaintiff had served on the defendant a notice pursuant to s 63(1) of the Evidence Act 1995 regarding Dr Chamberlain’s unavailability to give evidence at the hearing as he had unfortunately encountered ill-health, and because he was in a coma at the time of the trial.

Credibility and reliability of testimony

19. The plaintiff was extensively cross-examined. In my assessment, his evidence was not shown to be wrong or inherently improbable in any material way. There were some minor inconsistencies in his oral evidence on some matters of detail when compared with some details within the contemporaneous statements attributed to him in other documents. On considering his explanations, I do not consider those matters to have adversely affected the plaintiff’s credibility or the reliability of his evidence.

20. The only direct challenge the defendant made to the plaintiff’s credit was the assertion that his explanation for an additional item of factual detail provided in his oral evidence, which was not included in his contemporaneous statement to the police, was something that he had thought-up since his wife’s death.

21. The plaintiff denied that assertion of recent invention (T154.47 – T154.49), and explained that on the evening of his wife’s death, when his initial statement was taken by the attending police, he had understood that he was only being asked to deal with formal matters, and the statement was composed by the police officer in question: T152.46 – T153.19.

22. The plaintiff also explained that at the time he gave that statement to the police, he was not focussed on seeking to prove anything, nor was he looking to ensure that every detail in that statement was one hundred per cent correct, as understandably, he was not in that frame of mind. He said, and I accept, that at the time, he was preoccupied with dealing with the issue and the consequences of his wife’s death, and with organising the funeral, noting that family members were coming from interstate. I accept that the pressing requirements of those emotionally laden circumstances were a significant preoccupation for him at that time: T153.21 – T153.26.

23. In my assessment, the plaintiff gave credible and reliable explanations on the matters of detail on which he was cross-examined. Those matters will be referred to where relevant in the course of my reasons in the context in which they arise for analysis.

24. The plaintiff rejected the defendant’s attack on his credit in the form of a veiled suggestion that something untoward must have occurred between himself and the deceased on the day in question in order to cause her to take an overdose of Imovane: T147.36 – T147.42. The terms of that question invited the plaintiff to express an opinion on that matter. In response, the plaintiff stated that to his knowledge, there was no reason for the deceased to take an overdose, and there were no triggers that he knew of, which in his opinion, would have caused her to take an overdose of medication: T148.5 – T148.8.

25. Having reviewed the evidence as a whole, I have concluded without reservation, that I should accept the plaintiff’s evidence on all matters placed in contention by the defendant. I considered the plaintiff to be a truthful witness, whose evidence could be relied upon when determining the critical issues in dispute.

26. No challenges were made to the credibility of the expert testimony of Dr Huntsman. No evidence was called to contradict the opinions which he had stated in his report. I considered that Dr Huntsman’s opinions have been satisfactorily explained with cogent reasons in his oral evidence.

Procedural background and identification of submissions

27. The hearing of the evidence took place on circuit in Lismore on 9, 10 and 11 November 2015, following which the delivery of oral submissions was stood over to be heard in Sydney on 22 January 2016. In the meantime, on 9 December 2015, the parties each forwarded written submissions. On 22 December 2015, the parties forwarded written submissions in reply. Those submissions were supplemented by oral addresses delivered in Sydney on 22 January 2016. On 6 May 2016, there was a further listing to identify a matter of evidentiary analysis concerning prescription medications which was not covered in earlier submissions, and which, in a slightly modified form following further submissions, appears as the Appendix to these reasons. The analytical utility of that tabulation was addressed by further written submissions received from both parties on 13 May 2016.

Facts

28. Unless otherwise qualified, the paragraphs that follow set out the matters of fact that serve as the framework for ultimately determining the issues calling for decision.

29. In convenient sequence, the relevant factual topics concern, (1) the relevant terms of the policy; (2) the deceased’s background circumstances and health; (3) the circumstances of her death; (4) subsequent observations by investigating police at the scene; (5) the medical history of prescriptions for Zopiclone; (6) a prior non-lethal episode on 22 August 2003 comprising an overdose of Zopiclone; (7) the police investigation into the circumstances of the death; (8) a letter dated 30 August 2010 from the deceased’s general practitioner, Dr Chamberlain; (9) post-mortem toxicology results; (10) the first coronial finding where an inquest had been dispensed with; (11) the plaintiff’s initial claim under the policy and the defendant’s rejection of that initial claim; (12) the result of a further coronial inquest; (13) the plaintiff’s subsequent claim under the policy and the defendant’s rejection of that subsequent claim, following which these proceedings were instituted.

(1) – The policy and its terms

30. The policy in question was issued by the defendant on 3 April 1992. That policy continued to remain in force at the time of the deceased’s death. By 23 September 2003, the policy included cover for an accidental death benefit in the increased amount of $200,000 in respect of each of the lives insured: Exhibit “A”, pp 5 and 48.

30. The policy document defined the term accidental death as follows:

“Accidental Death: means death as a result of the accidental bodily injury, without any other contributing cause, which results in your death within 365 days of the injury occurring.

Loss of Use: means an accidental bodily injury, without any other contributing cause, which results in your total and permanent loss of use of one or more limbs or the sight of one or both eyes.”

[Exhibit “A”, p 2]

32. The policy document relevantly contained defined exclusions from liability to make payments for accidental death or loss resulting from first, “suicide or intentional self-inflicted injury” secondly, “being under the influence of drugs except when prescribed by a registered physician” and thirdly, “pre-existing Loss of Use injuries or conditions”: Exhibit “A”, p 3.

33. The defendant did not argue for a policy exclusion to be applied based on the post-mortem finding that the deceased had the drug Ibuprofen in her blood, or that she may have been under the influence of that drug. There was no evidence that drug had been prescribed to the deceased by her doctor (Exhibit “1”, p 10), and there was no expert evidence as to what, if any, the influence of that drug would have been on her thinking and behaviour. On the state of the evidence on that matter, no meaningful inferences can be drawn concerning the deceased’s ingestion of that drug: Strinic v Singh [2009] NSWCA 15.

34. The defendant must therefore rely upon the other stated exclusions of suicide or intentional self-inflicted injury in seeking to avoid the plaintiff’s claim under the terms of the policy.

35. In the course of submissions it was stated that the terms of the policy in question in this case have not previously been construed by a court.

(2) – Deceased’s background circumstances and health

36. At the time of her death, the deceased was aged 59 years. The plaintiff and the deceased married in rural NSW in 1978. Their only child, a son, was born in 1979. Following his birth, to use the plaintiff’s description, the deceased was “emotionally uncomfortable” for a couple of years: T103.32 – T103.39. This was described elsewhere in the evidence as comprising severe post-natal depression that occurred 24 years earlier: Exhibit “1”, p 51. There is no evidence to suggest that the deceased’s earlier experience of post-natal depression had continued long-term.

37. In the course of the birthing of her son, the deceased experienced some physical injuries, and for a time she was in pain. There was a marital separation for about 11 months in 1981. Following a reconciliation, which then continued until the time of the death of the deceased, the plaintiff described the deceased as being “a lot better” emotionally: T104.1 – T104.33.

38. The plaintiff and the deceased moved to Ballina in 1985, where they opened a pizza shop and restaurant, which the plaintiff still continues to operate: T104.38 – T104.49. That business later expanded to include premises in Lismore. In the first two and-a-half years of the operation of the business, the deceased took an active part in the various aspects of its operation. Thereafter, in part due to the deceased’s visual difficulty in driving at night, she continued to work in the administrative side of the business, carrying out office and book work from home. She had previously worked as a bookkeeper: T105.1 – T105.16.

39. The deceased was interested in ceramics, art work, painting, sewing and knitting. She had a dedicated room in the house for those interests and activities. She occasionally visited her family who resided interstate on the Gold Coast and she related well to the plaintiff’s family who resided in Victoria. The plaintiff described the deceased as a happy person: T105.27 – T105.38. The clinical records of the deceased’s 2003 hospitalisation for management of a Zopiclone overdose in combination with alcohol intoxication, indicate that at that time, the plaintiff had told a triage nurse that the deceased was always a combative person, and that she has been difficult to live with: Exhibit “1”, p 51.

40. In cross-examination, the plaintiff was asked to explain what that statement meant. He answered by reference to the deceased’s behavioural experiences in the context of her unusual menstrual cycle, as follows:

“Q. What did you mean by that?

A. Well, prior to the menopause, she was unfortunate that on her monthly cycle she would have her periods three weeks out of four, so and she suffered the period issue more than most women. It used to affect her, she used to get a little bit belligerent, a little bit agitated with things, she was uncomfortable, but then that one week was heavenly bliss. And I always looked forward to that week.”

[T123.36 – T123.42]

41. I accept the plaintiff’s account as cited in the preceding paragraph. That evidence was not inherently improbable, nor was it contradicted by other factual or medical evidence.

42. In 2001, the deceased began to experience symptoms of menopause which, according to the plaintiff, had “hit hard” for her: T105.44. Her medical records show that she had been prescribed hormone replacement therapy [“HRT”] for a time: Exhibit “A”, p 66.

43. The plaintiff described the deceased as having experienced hot sweats from menopause two to three times per night for some considerable time, which continued up until the time of her death: T106.4. The deceased encountered sleeping difficulties associated with menopause. After ceasing HRT because of concerns over its possible carcinogenic effects, the deceased started to drink wine on a daily basis, initially in increasing quantities it seems, and in that regard, she had told the plaintiff that it helped her to “get through the day” and to sleep better at night: T106.1 – T106.35.

44. On about 18 August 2003, a sentinel event occurred with regard to the deceased’s emotional wellbeing, in that her father, to whom she was very close, died at the age of 79 years: T119.41.

45. Until the death of her father, the plaintiff’s perception of the deceased from an emotional perspective was that she was fine. His perception was that after her father’s death she experienced significantly increased problems with sleeping: T107.30. She regularly took prescription sleeping tablets in order to assist with those sleeping problems: T106.40 – T107.23. The pattern of prescription of those tablets both before and after the death of her father, appears in the Appendix to these reasons.

46. In the period that followed immediately after the death of her father, the deceased had not slept for a period of about 3 days / 4 nights: T107.31. That occurred against a background of earlier sleeping difficulties. On 21 August 2003, after returning to their home after visiting the Gold Coast, the plaintiff and the deceased went to sleep. When the plaintiff woke the next morning, he panicked when he found that he was not able to rouse the deceased. He then called the practice of Dr Chamberlain, their general practitioner. Dr Nicoll, who was also a member of Dr Chamberlain’s general practice, arranged for the attendance of an ambulance, following which the deceased was taken to Lismore Hospital, where she remained overnight: T108.10 – T108.35.

47. Initially, Dr Nicoll had made a handwritten annotation on the deceased’s medical records to the effect the deceased had taken an overdose of Imovane (Zopiclone 7.5mg) in a suicide attempt: Exhibit “1”, p 69. Dr Nicoll had faxed a referral document to the hospital at 18:13 hrs on 22 August 2003 with the above annotation, along with some notes of observations of the deceased, describing her as being ataxic, confused, disoriented, drowsy and “smells of EtOH”: Exhibit “A”, p 69.

48. The annotation by Dr Nicoll of an assumed suicide attempt by the deceased was not borne out by Dr Chamberlain’s subsequent evaluation of the circumstances, as set out in his letter dated 30 August 2010, which I accept as being an accurate account of the events: Exhibit “A”, pp 81 – 82. That said, without intending any criticism of Dr Chamberlain, I have placed little weight on the elements of his report that necessarily involve speculation: T101.40 – T102.19. However, significant weight should be given to his clinical judgment and his related conclusions.

49. The suggestion of a suicide attempt by the deceased on 22 August 2003 was not borne out by Dr Powditch, the psychiatric registrar who had examined and assessed the deceased just prior to her discharge from Lismore Hospital. Dr Powditch made a notation in the hospital records to the effect that on her examination, the deceased was pleasant, without suicidality on her part, and that she was euthymic, without obvious depressive symptoms. The clinical impression formed by Dr Powditch was that of accidental overdose of Imovane, without suicidal ideation, however, at that time a query over alcohol abuse was noted, and the estimated overall consumption of alcohol at that time was stated to be a cask of wine and a bottle of whisky per week: Exhibit “1”, p 57.

50. In view of the circumstances of the deceased’s death, almost 6 years after that 2003 hospital admission, and in view of the defendant’s assertion that the deceased’s death on 31 January 2009 was due to either suicide or intentional self-inflicted injury, the events surrounding that 22 August 2003 hospital admission warrant closer analysis.

51. This is so because of the defendant’s submission that those circumstances formed a possible basis upon which inferences could be drawn concerning the deceased’s state of mind and the defendant’s claim that her intentions in the events that led to her death, were either suicidal, or involved an intentional self-infliction of injury.

52. I shall return to a more detailed consideration of those questions at a later point in these reasons, under topic heading (6) identified at paragraph [29] above, after reviewing the factual circumstances of the deceased’s death, and her medication history.

53. In the interim, I observe that the 2003 hospital admission for the overdose was against the background of the deceased having sleeping difficulties for the previous two weeks, and she had been sleep deprived in the previous days: T123.25.

54. In the analysis of the events of August 2003, I consider it significant that Dr Chamberlain had the contemporaneous advantage of using his professional experience of the deceased as his patient over the course of 20 years: T122.29. Dr Chamberlain was of the view that other than the events of August 2003, there was no other event that could be interpreted as a suicide attempt on the part of the deceased, and he was of the view she had not expressed suicidal ideas: Exhibit “A”, p 81.

55. Furthermore, having considered the records of the deceased’s hospital admission in August 2003, Dr Chamberlain did not contradict the plaintiff’s denial that his wife had attempted suicide at that time: Exhibit “A”, p 81. The observations of Dr Powditch, as noted at paragraph [49] above, therefore take on some significance in this analysis.

56. Given Dr Chamberlain’s clinical advantage for making his stated observations, which was also based on him contemporaneously interviewing both the plaintiff and the deceased, I consider that his recorded view that the events of August 2003 did not involve a suicide attempt on the deceased’s part, where his view was obviously based on his clinical acumen, should be given considerable weight: Fox v Percy [2003] HCA 22; 214 CLR 118, at [31].

57. The plaintiff was cross-examined as to the content of his discussion with Dr Chamberlain following the deceased’s 2003 hospital admission. The questioning on that topic centred around whether the medication overdose taken by the deceased would have had a lethal effect. The plaintiff’s impression of that conversation was that Dr Chamberlain, who according to the plaintiff, did not in any way make light of the issue, considered that if the deceased had been left alone on that occasion, she would most probably have woken up after a good night’s sleep: T122.49; T123.9. That evidence was not tested or challenged through questions asked in cross-examination of Dr Huntsman. I conclude that if the reasonableness of that opinion by Dr Chamberlain was truly contentious, it would have been the subject of such a challenge by questions directed to Dr Huntsman.

58. The text of Dr Chamberlain’s historical letter of explanation will in due course be set out in full, and assessed in the context of reviewing the coronial processes that followed the deceased’s death.

59. In the meantime, it is relevant to record some other salient aspects of the deceased’s health history, including her physical health.

60. The deceased occasionally suffered from vertigo: Exhibit “1”, p 159; T110.19; T111.21; T146.8; T146.19. She also suffered from migraines: T110.39. Apart from symptoms associated with menopause which have already been described, the deceased had been having difficulty with a frozen right shoulder syndrome. This caused her problems for which she had seen an orthopaedic surgeon. She had previously been treated for left shoulder problems. She had received a cortisone injection into her left shoulder. At the end of 2008, there was a plan for a manipulation of the affected shoulder under general anaesthetic with a further steroid injection: Exhibit “1”, pp 89; 99. There was also discussion over a plan for a shoulder arthroscopy and chondroplasty, had her death not intervened: Exhibit “1”, p 91. The deceased had been prescribed Tramal, an opiate, to manage the pain she was experiencing from her shoulder condition.

61. After the deceased had drowned, the general practitioner, Dr Chamberlain, gave an opinion that her shoulder problems would not have prevented her from using her arms or shoulders in an endeavour to save herself from drowning: Exhibit “A”, p 82.

62. The deceased had a history of depression which had followed the death of her father. I accept that her depression was not at that time immediately or fully apparent to the plaintiff, who within the space of 3 years, had himself undergone a series of bereavements following the deaths of his grandmother, his father, and brother, in each of the successive years. The plaintiff’s own grief reactions did not arise in respect of those losses until some months had passed. He said that he had little experience of other people going through depression: T109.30 – T109.35.

63. The defendant pointed to a portion of the deceased’s medical notes kept by Dr Chamberlain where, on 15 November 2005, it was noted the deceased had some depression and probably needed an antidepressant: Exhibit “1”, p 18. In my view, that reference was taken out of context by the defendant, as it was a query. The full notation reads: “I think she neds (sic) to se (sic) a psych and perhaps consider antidepressant … She needs a psych review and proably (sic) some meds – an antidepressant send (sic) perhaps a mood stabiliser I would like her to see Jill (Sloan) and consider a SSRI”.

64. The inference arising from that note, and from the evidence as a whole, is that Dr Chamberlain did not consider the deceased’s depression to warrant him actually prescribing an antidepressant for her, or referring her to a psychiatrist at that time, noting that the psychologist to whom the deceased had been referred, could not have herself prescribed such a drug to the deceased: T60.8.

65. The defendant also pointed to a notation in the police narrative: “Through speaking with the deceased (sic) husband it was revealed that the deceased suffered from depression and took medication consisting of Imovane 7.5mg to assist her with sleep”: Exhibit “1”, p 160. It appears that statement is a conflated summary of limited probative value: Mason v Demasi [2009] NSWCA 227, at [2].

66. What that note indicates is that the deceased had in the past suffered from depression. That was not a reference to a medical diagnosis. It was a lay observation by the plaintiff to which limited probative value should be attached. Furthermore, the Imovane was not prescribed for depression.

67. In light of Dr Huntsman’s discussion about depression and the foundations for its medical diagnosis generally, the plaintiff’s lay evidence as to the nature and the extent of the deceased’s depression must be considered with caution as such observations did not amount to a medical diagnosis. I accept Dr Huntsman’s evidence that the reference by the deceased’s general practitioner to the deceased having been depressed was not supportive of a diagnosis of the DSM V formulation of a major depressive illness: T51.36. No presumption of continuance of symptoms arises as to the fact or the extent of the deceased’s symptoms of depression in that time, given that the symptoms were liable to fluctuate.

68. The plaintiff described the deceased’s demeanour in the period 2003 to 2009 as having a lot of problems relating to grieving. He described those problems as not having so much of an immediate impact, but of becoming deeper after the first year following her father’s death, and then starting to worsen into the second year, and that this had coincided with the deceased starting to drink (alcohol) more because she wasn’t sleeping as much: T109.4 – T109.12.

69. In the years 2004 / 2005 the plaintiff discussed his concerns over the deceased’s depression with the family doctor: T109.40. At one stage, a consultation was arranged for the deceased to see a psychologist but she did not fully pursue that course: T109.20.

70. The psychologist who saw the deceased took a note to the effect: “can’t understand why can’t let go” in relation to the death of the deceased’s father: Exhibit “1”, p 80.

71. In 2005, at around the time the deceased was referred to the psychologist, the plaintiff had observed that the deceased was “hard headed” and would not take no for an answer: T127.32 – T127.50. He agreed she was at times sad, but not every day, and he agreed that once in a while he would see her crying, but not regularly: T128.1 – T128.10. The psychologist’s summary recorded a slightly different history of the deceased experiencing sadness every day: Exhibit “1”, p 80. In light of Dr Huntsman’s evidence explaining that it is not uncommon to see variations in history obtained at different times (T69.2 – T69.10; T96.33 – T96.41), I therefore do not see this as a matter that necessarily adversely impacts on the plaintiff’s credit as a witness.

72. On 15 November 2005, when Dr Chamberlain referred the deceased to the psychologist, Ms Sloan, the referral letter described the deceased as being an unusual personality who had difficulty talking about her feelings. Dr Chamberlain thought that the deceased had some big issues in her life. At that time, these were her father’s death, her hysterectomy, and more recently, a left shoulder injury: Exhibit “1”, pp 78 – 79. I consider that the content of Dr Chamberlain’s clinical assessment, as set out in that letter, should carry great weight in any analysis of the deceased’s state of mind in the period leading up to her death. Significantly, he did not refer to a diagnosis of depression at that time.

73. The records of Dr Chamberlain contained correspondence from the deceased, such as the letter she sent to him dated 18 September 2005 indicating, that she did not like talking about private things, and that she was to a degree occupied with concerns about her health: Exhibit “1”, p 76.

74. On 23 October 2005 the deceased wrote another letter to Dr Chamberlain, asking for some more Serepax, although “they take longer to kick in than the immovane (sic) (about 2 hours) but I guess they are better since you gave them to me”: Exhibit “A”, p 334. At that time, the deceased indicated she slept 5 – 5.5 hours with Serepax instead of 3 – 4 hours with Imovane.

75. The Appendix shows that Dr Chamberlain had obliged the deceased’s request on 24 October 2005 with a prescription for Serepax: Items 36 to 38 in the Appendix.

76. On 16 November 2005, Dr Chamberlain had occasion to write a report to an insurance company concerning the deceased’s longstanding, but more recently improving, frozen left shoulder problems. In that letter, he noted the deceased suffered from a degree of depression and anxiety, which has made it harder for her to cope with her frozen shoulder problem: Exhibit “1”, pp 84 – 85. Dr Chamberlain’s reference to depression in that context was qualified by the term degree. That evidence of the nature of the deceased’s depression must be read in light of Dr Huntsman’s explanatory analytical evidence on diagnostic matters following his consideration of the deceased’s medical records. Dr Huntsman did not see evidence in those records to support a clinical diagnosis of major depression: T48.11; T61.8.

41. On 1 December 2005, Ms Sloan saw the deceased for a brief session. At that time, the deceased appeared to have been resistant to a full assessment. Ms Sloan considered the deceased was experiencing an intense prolonged grief reaction to her father’s death, but that was stated by Ms Sloan to be a limited view: Exhibit “1”, p 83.

42. At that time, Ms Sloan noted the deceased gave a history of being sad every day, and crying, being teary and upset due to multiple triggers, being unable to talk about those problems, sleeping poorly, and being anxious when on her own at night. Ms Sloan recorded a history of the deceased taking half a tablet of Serepax: Exhibit “1”, p 80. At that time, Ms Sloan thought the deceased was displaying signs of depression, anger, and a very poor sleep pattern: Exhibit “1”, p 81. Ms Sloan noted the deceased was in her view exhibiting extreme avoidance of emotional pain: Exhibit “1”, p 82. When Dr Huntsman was asked to consider that history, he stated that this was consistent with the deceased suffering from pathological grief at that time: T62.33 – T62.45.

43. The plaintiff observed that, nevertheless, in between episodes of what he referred to as depression, the deceased still managed to experience happy times. The plaintiff said that her depression was reportedly triggered by dreams about her father, to whom she was very close: T109.43 – T109.50. The plaintiff’s observation of the deceased having happy times in between the other episodes was also consistent with Ms Sloan’s notes which recorded the deceased’s history as “fun – cooking, animals, like my life”: Exhibit “1”, p 80.

44. The plaintiff’s perception was that from 2005, and until the deceased’s death, he had made adjustments to his own schedule in order to work less hours so that he could spend more time with the deceased. They were planning to buy a flat so that she would be less troubled by vertigo as this was a problem for her when descending stairs, and she had expressed the anticipation of wanting a grandchild or grandchildren from her son. The plaintiff’s perception was that the deceased was getting over the grief of losing her father, and that she was learning to deal with those circumstances: T110.4 – T110.30. The plaintiff pointed to the recency of the deceased’s uneventful colonoscopy test on 21 January 2009, just 10 days before her death (Exhibit “1”, p 90), and of having undergone some recent dental work (T134.47), as being indicative of a positive outlook on life on the deceased’s part, this being inconsistent with an underlying suicidal intention.

45. In summary, the plaintiff’s description of the deceased’s manifested physical problems before her death were significant vertigo on descending stairs (T111.25), with a past episode of fainting on a toilet floor during an outing (T111.35), a painful frozen shoulder condition (T110.36; T111.19), migraines, severe menopausal hot sweats three to four times per night, and during the day, which at times had led to her going to sit at the edge of the pool in order to cool her legs in the water (T110.41). Significantly, she also suffered from severe insomnia which had been a problem for the deceased since the advent of her menopause: T112.17. The deceased regularly took Imovane for her sleeplessness associated with menopause: T112.21 – T112.26.

46. Significantly, between 2003 and the deceased’s death in 2009, there were no other instances of medication overdose: T123.19. The plaintiff stated, and I accept, that the deceased had never discussed with him any thoughts she may have had about ending her life (T116.22), and at the time, he did not think she was suffering from depression: T130.5. The plaintiff stated his perception was that, from 2005, following adjustments he had made to his work schedule, he and the deceased were getting on better, “there was an upscale to her conditions emotionally” and she was getting over and dealing with the grief of losing her father: T110.4 – T110.30. There was no history or record of prescription of medication for treatment of depression that would tend to contradict the plaintiff’s impressions on those matters. That is a matter of some significance given that Dr Chamberlain was well regarded by Dr Huntsman (T48.17 – T48.19), and from the content of his patient file, it appears that he was obviously a caring doctor.

47. The plaintiff stated that in the period of time that was closer to the death of the deceased, she was in the habit of drinking 3 – 4 glasses of wine per day: T140.47. The defendant argued this was indicative of an intentional infliction of self-injury on the part of the deceased: T163; T169.33. That argument will be considered in due course in connection with Issue 3, after setting out the other relevant facts. In the meantime, I observe that the size of the glasses of wine was not explored in the evidence, the likely blood alcohol levels that would have resulted from that level of consumption was not explored in the evidence, and there was no evidence that the consumption of alcohol at that rate constituted alcohol abuse, either as an isolated instance, or as a pattern.

48. I now turn to a consideration of the circumstances of the deceased’s death.

(3) – Circumstances of the death of the deceased

85. Shortly after 6.35pm on 31 January 2009, the plaintiff found that the deceased had drowned in the swimming pool at the family home: Exhibit “1”, p 159. Despite the efforts of the plaintiff, and some neighbours who attended when the plaintiff had raised the alarm by calling out for help, and despite the efforts of the ambulance personnel who had arrived at the scene at about 6.37pm, she could not be revived.

86. The previous evening, the plaintiff and the deceased were in bed watching television. The plaintiff believes that he had fallen asleep at around 2.30am. He said that when he awoke at around 8.00am, the deceased was already downstairs watching television: T112.28 – T112.44.

87. At about 10.30am, the plaintiff and the deceased had breakfast together, following which they watched some morning television. The plaintiff then went upstairs to work on his computer in order to install a new scanner. After some hours, he proceeded to lie down and he went to sleep for a few hours. He attributed his need to do so at that time as being due to tiredness on account of having previously taken some anti-histamine medication.

88. In the last conversation the plaintiff had with the deceased before he went upstairs, he said that she told him she had only slept for 2 hours the previous evening, despite having taken 2 sleeping tablets. In that conversation, he said that the deceased had also complained to him of shoulder pain: T113.11 – T113.15. Before going upstairs, the plaintiff had again showed her how to programme the recording function on their television: T113.40 – T113.49.

89. In his statement to the police, the plaintiff stated that at about 5.30pm, whilst resting, he thought he had heard the sound of a door closing. On rising, about an hour later, initially he did not see his wife. He noticed that the house had already been closed up for the night, and that the kitchen curtains were closed. On opening those curtains, he saw his wife’s body laying face down in the pool. He ran to and entered the pool, lifted her from the pool, and commenced CPR by the pool side. In those events he had called out to neighbours, who called for an ambulance. The neighbours then assisted with attempts at CPR. When the ambulance officers arrived they took over the CPR, and they administered an electric shock from a defibrillator in an unsuccessful attempt to resuscitate the deceased. The police were called and they arrived at the scene some 30 minutes later: Exhibit “1”, pp 92 – 93; T115.1 – T115.34.

90. In his oral evidence, the plaintiff added to the above account by describing having heard a noise, which he thought was the dog having bumped one of the four large ceramic pots (which were elsewhere described as vases) located at the corners of the pool: T114.25 – T114.45.

91. The plaintiff stated that initially, in the circumstances that ensued after realising his wife was dead, he was in shock, and he had been grasping for answers. He considered the possibility that she had suicided, although he said, and I accept, that the deceased had never discussed that subject with him: T116.1 – T116.22.

92. The plaintiff stated that on the day of the incident, he had no indication of the deceased being depressed or sad: T116.26. As far as he knew, the deceased was planning to have the recommended orthopaedic surgery for her shoulder problems, she had been talking in an anticipatory way about looking forward to having grandchildren, and there had been discussion in relation to selling one of their shops so that the plaintiff’s workload would be reduced so they could spend more time together: T116.24 – T116.33. In that regard, on behalf of the plaintiff it was argued that the non-concerning result of the recent colonoscopy test undertaken by the deceased, and some recent dental work, also pointed to the deceased having a positive outlook on life.

93. The defendant sought to suggest that contrary to the plaintiff’s evidence, that everything was fine between him and the deceased on the day of her death (T143.42), the plaintiff and the deceased had some disagreements. These were first, that he wanted her to travel to Victoria to see his mother but she was reluctant to do so because she had a fear of flying (T143.40) and secondly, there had been a light-hearted disagreement over finances: T144.4 – T144.33. I consider the defendant’s construction of those events as being untoward, involved overstatement. I accept the plaintiff’s evidence to the effect that those matters were of little consequence. I find those discussions seem to be an unlikely basis for the deceased wanting to suicide, or to inflict injury upon herself.

94. The defendant sought to undermine the plaintiff’s credit by reference to a factual narrative summary composed by Senior Constable Sutherland to the effect that he had last seen the deceased in the living area of their home at 4.30pm on 31 January 2009: Exhibit “1”, pp 159; 189.

95. The plaintiff said of that recorded factual detail that it was simply incorrect: T142.43. He said that Senior Constable Sutherland had possibly misunderstood his reference to time and he reiterated that he had not come downstairs until about 6.15pm on that day: T143.15 – T143.17. I accept the plaintiff’s evidence in that regard, particularly as Senior Constable Sutherland’s statement makes no mention of the plaintiff having seen the deceased at the contentious time of 4.30pm, and instead confirms that the plaintiff had told him he had heard a noise at 5.30pm without reference to him having seen the plaintiff at 4.30pm on that day: Exhibit “1”, p 179.

(4) – Police observations at the scene

96. Senior Constable Sutherland, who examined the scene on the day of the incident, noted that there was no sign found of a struggle in or around the pool. He had observed that the deceased was located on the eastern side of the pool, and that her slippers were located next to an outdoor setting: Exhibit “A”, p 75; Exhibit “1”, p 193.

97. Senior Constable Sutherland subsequently took a more detailed statement from the plaintiff on 3 February 2009: Exhibit “A”, pp 76 – 77. At 4.30pm on 12 February 2009, he revisited the scene and further discussed the incident with the plaintiff. At that time, the plaintiff had pointed out a number of matters that had led Senior Constable Sutherland to the opinion that the deceased died of accidental drowning, with alcohol and her pre-existing (shoulder) injuries inhibiting her from being able to swim to safety: Exhibit “A”, pp 79 – 80; Exhibit “1”, pp 179 – 181. His opinion in that latter regard had apparently been arrived at before the availability of the post-mortem toxicology test results.

98. The matters that apparently led Senior Constable Sutherland to that opinion were the location of a “vase” (which I infer was the pot adverted to in the evidence of the plaintiff), which had been slightly moved, possibly by a trip or fall near the vase. It was postulated that a fall by the deceased into the pool was due to the presence of a trip hazard comprising a raised lip at the side of the pool. It was also postulated that the deceased’s subsequent drowning was due to the fact that she had a shoulder problem which may have prevented her from swimming to safety from the deep end of the pool, and the deceased’s problem with vertigo, and the possibility of there having been a faint: Exhibit “A”, p 79. The opinion concerning any limitations due to the deceased’s shoulder condition must also be read in the light of Dr Chamberlain’s more educated view, to the effect that it was unlikely the deceased’s shoulder condition would have prevented her from trying to save herself whilst in the water.

99. Although it was part of Senior Constable Sutherland’s function to form an opinion on the cause of the deceased’s death, ultimately, for record purposes, it was up to the coroner to make a formal finding. Those opinions and findings do not bind the parties in these proceedings.

100. The police records of the investigation into the death of the deceased were tendered by the defendant: Exhibit “1”, pp 145 – 206. The post-mortem narrative prepared by Senior Constable Sutherland was to the effect that at the scene, there were no suspicious circumstances surrounding the death of the deceased: Exhibit “1”, p 197.

101. The police case report summarised the matters referred to above, and also recorded that on 12 February 2009, when police returned to the scene, the plaintiff had pointed out to the police the presence at the bottom of the pool of some finger marks located in the silt that was in that location, suggesting that the deceased had attempted to get to the edge of the pool to save herself before she eventually drowned: Exhibit “1”, pp 158 – 159. It is difficult to draw any reliable conclusions from that evidence.

102. At that visit by the police, the plaintiff also pointed out the presence within a poolside vase, of a plastic pod that had been dislodged from a leg of a poolside chair. This was said to be some evidence to support a theory that the deceased may have bent over to pick up that item and place it in the vase before becoming dizzy from vertigo, and then falling: Exhibit “1”, pp 158 – 159. Whilst that explanation might have been a possibility, it must be seen to involve speculation and it is difficult to draw reliable conclusions from that evidence.

103. The key factual questions to be resolved in this case are whether the deceased’s death was accidental within the meaning of the terms of the policy, or whether the deceased either suicided or intentionally inflicted injury upon herself. It is therefore unnecessary to seek to resolve the speculative theory identified by the plaintiff at that time, and subsequently, as summarised in the two immediately preceding paragraphs.

104. After the receipt of the results of toxicology testing of blood samples taken from the deceased, as identified at paragraph [5] above, initially, the plaintiff did not request a formal inquest: Exhibit “1”, p 181. He later changed his mind after the first coronial finding was recorded, and a second coronial finding was eventually made.

(5) – History of Zopiclone prescriptions in medical records

105. The deceased’s medical records were tendered by the plaintiff: Exhibit “A”, pp 17 – 44; 49 – 75; 96 – 121; 124 – 418. Dr Chamberlain’s handwritten clinical notes covering the period 23 February 1990 to 3 April 2001 were tendered in evidence: Exhibit “A”, pp 359 – 363. Dr Chamberlain’s typed computerised consultation notes covering the period 28 April 1999 to 2 February 2009 were also tendered in evidence: Exhibit “A”, pp 51 – 74. The notes contain multiple references over the course of time to the deceased being prescribed sleeping tablets.

106. Copies of those records were also tendered by the defendant. The defendant’s bundle had some additional pages. In my view, nothing turns on this fact as the entire records, when read together, seem complete. Where it becomes necessary to do so, I will refer to relevant entries in either bundle.

107. The deceased’s medical records contain the abbreviated detail of many years of her consultations with various doctors at the practice of her treating general practitioner. Those records included the results of tests and correspondence following a number of specialist referrals. Not all of those records need to be summarised in these reasons.

108. Of particular relevance is the identification of the various dates on which the deceased was prescribed Imovane or Zopiclone. The dates of those and similar prescriptions have been selected and extracted, and set out in the Appendix to these reasons, to form a basis for evaluating the opinions of Dr Huntsman.

109. The Appendix also identifies the numerous dates on which the drug Imovane was recorded as having been prescribed for the deceased. The last prescription date for Imovane was on 22 January 2009, which was just 9 days before the death of the deceased: Exhibit “A”, p 52.

110. In addition to prescriptions for Imovane, on 17 January 2006, and again on 29 March 2006, the deceased was given a prescription of Serepax 30mg, with the intention that half a tablet to be taken at night: Exhibit “A”, pp 57 – 58. On 17 January 2006, the deceased’s general practitioner also gave her a sample of Avanza to try: Exhibit “A”, p 58. Those additional prescriptions seem to have no bearing on the matter, given the remoteness of the dates relative to the date of death. There is no evidence that the deceased took any relevant prescription drug other than Imovane in the period leading up to her death.

111. Those historical medical materials, and the circumstances of the death of the deceased, were the subject of an expert forensic evaluation by a consultant psychiatrist, Dr Stephen Huntsman, who prepared a forensic report dated 25 April 2012 at the request of the solicitor for the plaintiff: Exhibit “A”, pp 83 – 97. Dr Huntsman also gave oral evidence at the hearing, including in cross-examination: T48 – T99. Relevant aspects of Dr Huntsman’s evidence will shortly be examined in closer detail in relation to the issues calling for decision.

(6) – Non-lethal Imovane overdose on 22 August 2003

112. On 22 August 2003, the deceased had ingested a non-lethal quantity of Imovane which was identified and described as an overdose, together with the ingestion of some alcohol. These events had occurred only a few days after her father had died.

113. At 4.34pm on 22 August 2003, an ambulance transport form recorded that an ambulance had been booked to attend upon the deceased, and that the deceased was off the stretcher at Lismore Hospital at about 5.45pm on that day. The ambulance patient history summary stated:

“Want to go to sleep. Recent death of father. Patient has allegedly taken 140mg of Imovane & some alcohol. Note at the Scene: ‘You left me’. O/A Dr Nicholas (sic for Nicoll) at residence, Patient supine in bed. O/E patient is drowsy (with) slight confusion”

[Exhibit “A”, p 39]

114. The described content of the note “You left me” was ambiguous. Although it was found at the deceased’s home, there was no evidence as to when it had been written or whether it had been intended for a particular person, living or dead. This is a matter of some importance because the defendant sought to rely upon that note as being evidence of a suicide note. The defendant sought to establish this through the evidence of the plaintiff.

115. The difficulty for the defendant with regard to that proposition is that the plaintiff’s memory of the particular circumstances of that note was very vague, although he said that the words of the note, as cited to him, rang a bell for him: T119.12. The plaintiff’s limited recall on that matter is not surprising, given the questions related to events that occurred nearly 13 years ago. The plaintiff’s limited recollection of that note is not to be taken as being indicative of an unreliability of any other aspect of his evidence.

114. The plaintiff described the deceased’s practice whereby she used to leave him “love notes, every now and again”: T119.14. In an answer against his interests, the plaintiff also acknowledged that it was possible that the note had been addressed to him. He explained that it could have related to an occasion when he had left the deceased for four days: T119.20. The circumstances of that answer were not further explored. The plaintiff also agreed with the alternative proposition that the note could have related to the plaintiff’s thoughts about her father’s death: T119.25 – T119.33. That evidence of possible alternative meanings of that note was not contradicted, and it was not inherently improbable in any of its aspects.

115. That state of the evidence regarding the note found at the deceased’s home on 22 August 2003 indicates that no positive conclusions arise concerning that note and its intended purpose or meaning. A number of possible explanations were open. In my view, to ascribe, as the defendant seeks to do, a suicidal meaning, or an intention by the deceased to self-inflict injury, from the second-hand description of that inherently ambiguous note, would involve impermissible speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

116. Although Dr Huntsman agreed that the note in question could be interpreted as a suicide note as one of the possibilities, even the main possibility, so as to represent a “clue as to what might have been going on” (T75.14 – T76.4), there is nothing specific that raises that possibility to a status of an affirmative inference above a guess between a number of other speculative alternatives: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

117. As there is no evidence to indicate when the note was written, as distinct from when it was found, I do not accept the defendant’s contention that the note in question provided a reliable indication that the plaintiff intended either suicide or self-inflicted injury in August 2003.

118. At 6pm on Friday 22 August 2003, a hospital nurse recorded some notes of an assessment of the deceased’s presentation at the emergency department of Lismore Base Hospital. The notes recorded that the deceased was brought in by ambulance personnel on a stretcher with a history of having taken 10 – 15 Imovane tablets at 4.45pm that day. The notes also stated “her father had passed away earlier this week – she is finding this very difficult to accept - ?? alcohol ingestion as well”: Exhibit “A”, p 21.

119. At 6.13pm on 22 August 2003, Dr Nicoll sent a fax to the hospital relating to her attendance on the deceased on that date. That fax contained a handwritten note which made reference to an overdose that was a suicide attempt: Exhibit “1”, p 69. That interpretation was certainly open to Dr Nicoll as being a first impression of the circumstances at that time. However, on a deeper and more focussed clinical evaluation undertaken in less pressured circumstances, those assessing and treating the plaintiff at the hospital for the overdose, ultimately came to a different conclusion, as did Dr Chamberlain on his later review of the deceased.

120. The significance of Dr Nicoll’s notation cited in the preceding paragraph will be the subject of consideration in due course on the topic of whether the deceased had, in August 2003, expressed suicidal intentions, as that notion is an essential plank in the defendant’s case arguing for either suicide or self-inflicted injury as excluded events under the policy.

121. At 6.30pm on 22 August 2003, or shortly afterwards, the deceased was assessed at Lismore Hospital by a Dr Hall, who noted that the deceased was restless, and that she had been very abusive towards the hospital staff. She assessed the deceased as being a danger to herself and to others, and she therefore completed a Sch 2 Medical Certificate pursuant to the provisions of the Mental Health Act 1990. Exhibit “A”, pp 26 – 29.

122. At that time, Dr Hall took a history from the plaintiff concerning his wife. Dr Hall’s notes indicated that the presenting condition was that of a drug overdose. In her note of that interview, she reiterated the already recorded history of the deceased having taken 10 – 15 Zopiclone 7.5mg tablets, plus whisky, as insomnia treatment.

123. At that time, Dr Hall recorded that the drug in question was a short acting sedative / hypnotic with a profile similar to that of the benzodiazepines. She also noted that if, in the event that the deceased was assessed as being “OK” in the morning, then she could be transferred into the care of the psychiatric team: Exhibit “A”, pp 25 and 30 – 31.

124. Between 6.40pm on 22 August and 8.30am on 23 August 2003, the deceased remained under observation in the hospital. It was noted that a psychiatric review was awaited. The notes stated that, for a short period, the deceased had initially been agitated and aggressive: Exhibit “A”, p 24.

125. At 8pm on 22 August 2003, an acute mental health care service hospital triage note recorded that the deceased, who was then aged 53 years, and who had no prior contact with the mental health team, had been scheduled as an involuntary patient because of abusive behaviour towards the accident and emergency staff. The clinical notes recorded she was not medicinally treated for an overdose comprising 10 – 15 tablets of Imovane 7.5mg plus the ingestion of whisky in the context of her father having died 4 days earlier.

126. The medical notes of the August 2003 admission went on to record that the deceased had a past history of “severe PND”, which I interpret to refer to the period of post-natal depression the deceased suffered in the context of the birth of her son, 24 years earlier.

127. On the following day, a medical officer ordered the revocation of the scheduled involuntary detention of the deceased under the Mental Health Act 1990. At that time it was noted that the deceased was “not suicidal currently”. The person making that note, whose qualifications were not stated, made the additional note that the deceased was “probably drinking more than she is admitting”. At that time, the deceased was referred to the care of her general practitioner: Exhibit “A”, pp 18 – 19.

128. Dr Huntsman’s interpretation of those events will be referred to in due course.

129. On 23 August 2003, Dr Powditch, the psychiatric CMO referred to at paragraph [49] above, wrote a letter to the deceased’s general practitioner. That letter recorded the deceased’s version that “this was not a suicide attempt, but a desire to get a good sleep (but with) a lack of knowledge about the risks of taking (increased) medication”: Exhibit “A”, p 41. The notes of the assessment undertaken by Dr Powditch have already been summarised at paragraph [49] above.

130. On 24 August 2003, a mental health nurse made a follow-up telephone call to the deceased, and in the ensuing conversation, noted that the deceased stated the overdose with sleeping tablets was an “accident” and a “dreadful mistake”. That note went on to state that the deceased had intimated her intention was only to achieve sleep, that she had no intention of killing herself, that she was exhausted and was not eating after the death of her father, and in that context, it was noted the deceased had said she “just has to get her crying done / grieving”: Exhibit “A”, p 20.

131. On 31 August 2003, the same mental health nurse who made the note referred to above, spoke to the deceased by telephone by way of a further follow-up conversation. In that context, it was noted that the deceased “maintained she never intended to kill herself with the pills”: Exhibit “A”, p 20.

132. Those matters of contemporary evidence are relevant to the question of whether or not the deceased had intended to either suicide or cause self-injury when she took the combination of Zopiclone and alcohol on 22 August 2003. Those questions will be taken up in the consideration of Issue 1.

(7) – Police investigation of the deceased’s death

135. For completeness, it is relevant to review the police investigation into the circumstances of the deceased’s death.

136. At about 8.40pm on 31 January 2009, investigating police made notes of the scene of the deceased’s death. No suspicious circumstances were recorded at that time. The investigating police found no sign of a struggle in or around the pool. The deceased was clothed in a nightgown and underwear, and her slippers were found next to an outdoor furniture setting near the pool. A search was made for medications in the house. Those medications found by the police were listed. Significant amongst those medications was an empty 30 tablet blister pack for Imovane and a 30 tablet blister pack of 7.5mg Imovane tablets, from which 5 tablets were noted to have been missing, leaving 25 unconsumed tablets: Exhibit “A”, p 75. Those findings did not permit a reasoned calculation of how many Imovane tablets the deceased had actually taken before she drowned.

137. Significantly, the police also found 3 unused boxes of Tramal 50mg capules (sic); Mersyndol Forte, Pandeine (sic) Forte and Codeine Paracetamol: Exhibit “1”, p 174. The evidence disclosed that Tramal was an opiate analgesic: T45.31; T47.19.

138. The investigating police took a statement from the plaintiff, which included the following extract:

“3.   On Saturday 31st of January, 2008(sic), at about 8am I awoke and had breakfast with my wife Ingrid VACCARO at my address of 18 Opal Crescent, Alstonville, I last saw my wife at about 10.30am and we watched television together consisting (sic) the news and a morning show. We had breakfast together and then I went upstairs to do work on the computer. For a couple of hours I did some work on the computer and became quite tired as a result of taking some Zyrtec that morning and an anti-histamine the night before. Due to this I went for a lie down on the bed and awoke about 6.15pm, I got freshened up and dressed with the intention of buying dinner for us that night.

4.   I then went downstairs to tell Ingrid that I was going to buy some Take-away. When I got downstairs the house had been closed up for preparation of the night, I looked around and did not see Ingrid and thought that she may have got in the car to get some take-away. The curtain was closed in the kitchen, and I thought Ingrid might have been in the rear yard pool dipping her feet. When I pulled the curtain I saw Ingrid in the pool, face down and I saw the top of her had (sic) and her arms were out and her dressing gown was afloat. Due to this I quickly ran out, jumped straight into the pool. I picked Ingrid up and took her to the side of the pool and lifted her out of the pool. I then got out and began to commence CPR, by doing chest compressions. At this time Ingrid was blue and she was quite stiff. I attempted for a short period of time and then yelled out for help. Lee, Tina and her boyfriend came (sic) fence line, and then Tina ran back inside and called '000'. At this time another next door neighbour being Stephen PARSONS jumped the fence and assisted me with performing CPR. Stephen new (sic) how to perform CPR and attempted to administer it Stephen said to me, "She's blue, she's gone, she's (sic) must have been in the water for about an hour."

5.   Sometime later the ambulance arrived and attempted administering CPR and used an electronic instrument. The ambulance personnel then said, "There's nothing more we can do." Stephen then went and got a blanket to cover her. About 30 minutes later Police arrived.

6.   Quite often Ingrid would go and dip her feet in the pool around 5.30pm before going upstairs, especially if it was a hot day or she was experiencing menopausal severe hot flushes.

7.   Ingrid (sic) health was quite good, apart from that and her right shoulder, which has been diagnosed as calcification of the shoulder joint, which can cause her immense pain and it can lock up or have very limited movement. Dr ASHWELL only administered the fourth steroid injection to her should (sic) only a week before, and he was contemplating surgery on the shoulder.

8. Approximately two weeks ago, Ingrid also had a Colonoscopy and was put under general antiseptic (sic) for this procedure and around the same time she had dental surgery where local antiseptic (sic) was administered.”

[Exhibit “A”, pp 76 – 77]

139. Senior Constable Sutherland attended the scene at about 7.30pm on 31 January 2009, and took the following statement from the plaintiff:

“3.   On Saturday 31st of January, 2009 at 7.30pm I attended 18 Opal Crescent, Alstonville. At that location I was met by Ambulance personnel who I had a conversation with and they told me something in relation to the deceased Ingrid VACCARO. I was then escorted through the residence where I met Patrick VACCARO also known as Pasquale VACCARO the husband of the deceased. I spoke with Patrick VACCARO briefly and was then taken to the rear of the premises where I was escorted to the pool where I saw the deceased Ingrid VACCARO lying beside the pool in the rear yard with a blanket placed over her. I then had a further conversation with the ambulance personnel who told me something. A short time later Acting Inspector DONALD attended the scene and I had a conversation with him. Crime Scene and Detectives were contacted to attend. I then had a conversation with Patrick VACCARO, who said, "I heard a noise at 5.30pm I was lying in bed and heard a noise, like my wife had closed a door. An hour later I awoke and had a quick wash and went downstairs to see my wife. I went into the kitchen and looked outside the window to the pool area and saw Ingrid in the pool, face down and I saw the top of her head and her arms were out and her dressing gown was afloat. Due to this I quickly ran out, jumped straight into the pool. I picked Ingrid up and took her to [words obliterated] side of the pool and lifted her out of the pool. I then got out of the pool and commenced CPR by doing chest compressions. At this time Ingrid was blue and she was quite stiff. I attempted for a short time and then yelled out for help. Lee, Tina and her boyfriend came to the fence line and then Tina ran back inside her house. At this time another next door neighbour by the name of Stephen jumped the fence and assisted me with performing CPR. Stephen knew how to perform CPR and attempted to administer it. Stephen said to me, "She's blue, she's gone, she must have been in the water for about an hour." Sometime later the ambulance arrived and attempted administering CPR and used an electronic instrument. The ambulance personnel then said, "There's nothing more we can do." Stephen then went and got a blanket to cover her."

…

6.   On the 3rd of February, 2009, I obtained a two page statement from Patrick VACCARO and he told me something. On Thursday 12th of February, 2009, at 4.30pm I attended the residence of Patrick VACCARO where he told me something in relation to how he believed his wife had fallen into the pool. It was reported that he had located that a vase near the pool had been slightly moved and how his wife may have tripped or fallen near the vase and had fallen into the pool. It was reported that his wife had a bad shoulder and may have not been able to swim from the deep end of the pool to the side of the pool due to her bad shoulder and due to fainting due to her vertigo problem. It was also revealed to police that there was a lip at the side of the pool which is a trip hazard and may also have contributed to her falling into the pool.

…

7.   [Word obliterated in copying] Friday 29th of May, 2009, a toxicology report was received concerning the deceased Ingrid VACCARO where it was revealed that she had a high level of alcohol in her blood. A reading of 0.217 grams of alcohol per 100ml of blood was obtained with 2.9 mg of Ibuprofen per litre of blood was also detected within her system and the time of death.”

[Exhibit “A”, pp 79 – 80]

(8) – Dr Chamberlain’s letter dated 30 August 2010

140. The deceased’s medical records were accompanied by an explanatory letter dated 30 August 2010 from Dr Chamberlain, who had been the deceased’s treating general practitioner since 1989: Exhibit “A”, pp 81 – 82. That letter from Dr Chamberlain is set out in full, as follows:

“Re: The late INGRID VACCARO

Thank you for your letter regarding Ingrid Vaccaro, I have answered your questions below:

1   Ingrid had been a patient here since 1989. In August 2003 she was admitted to Lismore Base Hospital with an overdose of Imovain (sic) and alcohol. However, at interview after the event by both psychological staff in the Northern Rivers Health and by us, Ingrid was adamant that it was not a suicide attempt but an attempt to get more sleep. At the time both her and her husband stated that she was not trying to suicide. Otherwise in the time and I have known her there has been no other event that could be interpreted as a suicide attempt nor has she expressed suicidal ideas.

2   Over the years Ingrid had displayed varying degrees of both depression and anxiety. Mostly it was anxiety related to poor sleep or various physical symptoms.

3   At the time of Ingrid's death she had been relatively stable and functioning well. Having known her for many years I had seen her go through many ups and downs when things weren't going well for her. Her main physical complaint was that of a sore shoulder but in January 2009 she had reported that her shoulder pain was actually reasonably good. There was no evidence that Ingrid was thinking about suicide.

4   I have no indication in my notes that Ingrid complained of dizziness. She may have been dizzy, as Ingrid had such a plethora of symptoms and was often not willing to discuss them with us. Patrick tells me she did have dizziness.

5   Dizziness can be a symptom of overuse of Zypiclone (sic). Symptoms are alertness, headache, fatigue, confusion, anmensia (sic), sleepwalking, blurred vision, bitter taste, dry mouth, Gl upset.

6.   Yes.

7.   No, I don't think Ingrid's shoulder would have prevented her from being able to get out of the pool or to be able to hang on to the side of the pool. Her shoulder had been painful but had been improving somewhat prior to her death. She was certainly not incapable of using her arm.

8.   As per 1.

9.   Ingrid suffered from very high levels of anxiety. She was a chronic insomniac and had been taking sleeping tablets for many years and Imovan was the medication that gave her best relief. I think I agree with Patrick that

Ingrid would have been sitting around the pool at night trying to keep cool. It was February when she died and quite hot and she often suffered from hot flushes. I don't think Ingrid was the sort of person to take her own life. She was too anxious about dying. I am unaware of Ingrid's level of regular alcohol intake, but from what Patrick has told me subsequent to her death she may well have been a regular heavy drinker. It is likely that at times Ingrid took more sleeping tablets than she should have in an attempt to get to sleep. I believe she intentionally took excess tablets on the night of her death, but didn't intend to kill herself or fall into the pool.

Many thanks.

Yours sincerely,

DR NIGEL CHAMBERLAIN”

[Exhibit “A”, pp 81-82]

141. The actual questions which Dr Chamberlain had been asked to address for the preparation of the above letter were not tendered in evidence. However, the gist of those questions is generally clear from the content of his letter. Dr Chamberlain was of the view that there was no evidence that the deceased was thinking about suicide. In my view, that opinion from the deceased’s treating general practitioner carries significant weight as to his clinical assessment of the deceased’s mental state.

(9) – Post-mortem and coronial toxicology test results

142. On 15 February 2009, at the request of the coroner, a pathologist, Dr Brian Beer conducted a post-mortem autopsy examination of the deceased: Exhibit “1”, pp 95 – 100. In his ensuing summary, Dr Beer stated that his provisional opinion on the cause of death, being the condition that directly led to death, was drowning, but that the morbid conditions giving rise to that cause, was a presumed drug overdose. That opinion was given pending the receipt of toxicology test results: Exhibit “1”, p 96.

Issue 4 – Whether Zopiclone with alcohol contributed to drowning

315. The coroner found that drowning caused the deceased’s death. The coroner also found that the antecedent cause of death was excessive alcohol and medication consumption. There is no dispute concerning these conclusions.

316. However, those findings do not govern the causation findings that are required to be made in these proceedings. This observation is relevant to the defendant’s argument to the effect that the antecedent cause as found by the coroner, and the facts underlying that finding, represented another contributing cause resulting in the deceased’s death.

317. Here, the relevant question for decision is whether the antecedent cause of excessive alcohol and medication consumption as identified by the coroner should be taken to engage the policy definition of “any other contributing cause, which results in … death”.

318. The defendant argued that the deceased’s intoxication was the real and effective, direct or proximate cause of her death, and therefore, this constituted an “other contributing cause” to the deceased’s death so that the defendant avoids any liability to make a payment under the policy: Russell v Edwards [2006] NSWCA 19; (2006) NSWLR 376, at [35].

319. In my view, that argument does not assist the defendant in this case as the decision in Russell v Edwards turns on the interpretation and application of Pt 6 of the Civil Liability Act 2002, which does not apply to this case: Russell v Edwards, at [2].

320. The concept of a direct or proximate cause enables a single cause of an insured event to be identified: Russell v Edwards, at [35]. In that case, it was confirmed that the law of insurance requires the court to look to the proximate and not the remote cause of a loss in order to determine the liability of the insurer: Russell v Edwards, at [36], following Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited & Ors [2005] NSWCA 66, at [39].

321. In my assessment of the sequence of events, the proximate cause of the deceased’s death was drowning. Put another way, if the deceased had not entered the water, she would not have drowned. In those circumstances, it is difficult to see how the defendant’s argument that the deceased’s intoxication was the real and effective cause of the deceased’s death. In my view, if the factors of intoxication or Zopiclone ingestion had a causative role, that role was a remote one, and not a proximate cause.

322. The parties are in dispute as to who carries the onus of proof on the question of whether there was ”any other contributing cause” of the deceased’s death. The defendant asserts that it is for the plaintiff to prove that there was no such “other contributing cause”, whereas the plaintiff claims that the “any other contributing cause” provision in the policy, whilst embedded the insuring clause, is not part of that insuring clause as it is in reality, an exclusion provision, albeit that it is not located in that part of the policy which contains other specified exclusions.

323. In my view, having regard to the phraseology of the definition of “Accidental Death” in the insuring clause, where the concept of accidental bodily injury resulting in death is the event to be insured against, and where the immediately following phrase after the punctuating comma is “without any other contributing cause”, the proper construction of the policy is that the “any other contributing cause” provision operates as an exclusion from the liability of the insurer, if it becomes engaged by the facts. That is a matter to be proven by the defendant. Therefore, that is not a matter which the plaintiff must prove as a precondition to an entitlement for payment of the claim under the policy.

324. In my view, if the position were to be reversed, the contract would lack business efficacy. I construe the provision “without any other contributing cause” to be one which seeks to exclude any underlying or pre-existing conditions of health, unrelated to an accident, and which also contributes to the cause of death.

325. On that analysis, I consider that the defendant has not discharged its onus of demonstrating there was “any other contributing cause” to the death of the deceased. The antecedent cause finding by the coroner is of no assistance to the defendant in that regard due to the non-binding nature of that finding.

326. The evidence clearly leads to the conclusion that the ultimate cause of the deceased’s death was by drowning, with the two other identified conditions being present, but expressed as a single combined entity of excessive alcohol and medication consumption, where the medication referred to was Zopiclone. That said, I consider that the inescapable conclusion is that the proximate cause of the deceased’s death was drowning.

327. In my view, there is no evidence that would permit a reasoned conclusion that the deceased’s consumption of either Zopiclone or alcohol, either each alone, or both in combination, would have caused her to die if she had not entered the water. It is plain on the evidence that if the deceased had not entered the water, she would not have drowned. Drowning was the effective, dominant or operative cause of the deceased’s death: Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited & Ors [2005] NSWCA 66, at [5].

328. The remaining key question then becomes what caused the deceased to enter the water, or put another way, did the deceased’s ingestion of Zopiclone and alcohol cause her to enter the water, and if so, was this a relevant contributing cause resulting in her death.

329. In addressing those questions, it is important to ensure that when arriving at findings on that question, such findings must necessarily proceed by way of inference, and any conclusions which emerge from that process must be appropriately reasoned, and not based on unsupportable speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

330. The defendant has not shown that it is more probable than not that the proximate cause of the deceased’s death was due to “any other contributing cause”, that is, other than drowning.

331. The deceased’s actions in ingesting an overdose of Zopiclone in conjunction with alcohol sufficient to result in a post-mortem assay of blood alcohol concentration of 0.217g/100mL has not been shown to have resulted in the deceased drowning. Instead, I consider that the evidence more persuasively points to the drowning as an event that occurred quite independently of any antecedent action on the part of the deceased, such as was considered in Australian Casualty Co Ltd v Federico [1986] HCA 32; (1986) 160 CLR 513, at [14]. It was the effective, dominant or operative cause, as found at paragraph [327] above.

332. Having already determined that the deceased had not suicided or had not intentionally self-inflicted injury, and that there was no “other contributing cause” relevant to the deceased’s death, this then leads to the question of whether or not the death of the deceased was accidental.

Issue 5 – Whether deceased’s death was accidental

333. The plaintiff claims the deceased’s death was accidental. Accidental death is defined in the policy as meaning death without any other contributing cause: Exhibit “1”, p 2. The other causes argued by the defendant, namely suicide, intentional self-inflicted injury and “any other relevant contributing cause” have already been determined to be inapplicable: Issues 1 – 4 above.

334. On the key question of what caused the deceased to enter the water where she drowned, on the evidence, a number of possibilities emerge for consideration, as follows:

1. The deceased could have slipped on the raised paving lip when she was near the edge of the pool, and then entered the water accidentally;

2. The deceased could have experienced vertigo or dizziness whilst standing near the pool, and then entered the water and drowned accidentally;

3. The deceased could have been sitting by the edge of the pool cooling her legs in the water when she experienced vertigo or dizziness, and then fell into the water and drowned accidentally;

4. The deceased could have been sitting by the edge of the pool and fallen asleep due to the “kick in” effects of Zopiclone ingestion, and then fell into the pool and drowned accidentally.

335. Each of the possibilities identified in the preceding paragraph seem consistent with the deceased’s slippers having been found near the pool, which was also consistent with the deceased’s habit of cooling her legs in the pool to ameliorate the effect of her experience of hot flushes.

336. On analysis, possibility (1) above remains speculative, as there was no evidence of marks on the paving around the pool, or on the deceased’s body, showing signs of the deceased having tripped or slipped. It would seem unusual for a trip or slip which resulted in the deceased entering the water to not leave some kind of abrasion or sign of injury on the part of her foot that slipped or tripped, or that some other mark from contact with the edge of the pool was not found on her body. I therefore consider that possibility (1) above should be discounted as being unsupported speculation.

337. I consider that possibilities (2) and (3) above arise for consideration because of the described history of the deceased occasionally experiencing vertigo, which it should be noted, was a possible side effect of overuse of Zopiclone: Exhibit “A”, p 81. In that regard, the evidence disclosed that the deceased had experienced a fall due to fainting in the past.

338. Similarly, possibility (4) above is a distinctly open consideration because the deceased had obviously taken a significant quantity of Zopiclone before she drowned. The effect of Zopiclone was to induce a state of sleep. Given the position in which the deceased’s slippers were found near a pool side setting, and given the deceased’s habit of cooling her legs in the water, it is very likely that the effects of Zopiclone ingestion would have caused her to fall asleep whilst she was sitting at the edge of the pool with her legs in the water.

339. In my view, the latter explanation seems to be the most credible explanation for the deceased entering the water and then drowning. It would also tend to explain why she did not swim to safety before drowning. It is unlikely that she would have been able to swim if she was asleep.

340. Having narrowed the possibilities to those described in scenarios (2), (3) and (4) above, as distinct from an unknown cause, in the presence of two credible explanations, I consider that an unknown cause seems unlikely.

341. The end point of this analysis is that it is not necessary to definitively choose between those three scenarios in order to determine the precise sequence of events that led to the drowning. For present purposes, having excluded from further consideration the postulated factors of suicide and intentional self-inflicted injury, this leaves either the effects of vertigo or dizziness, or the sleep inducing effects of Zopiclone, as available and adequate explanations for the deceased entering the water and then drowning.

342. I consider that on the balance of probabilities, one of those two factors, or a combination of both of those factors, provides the most likely explanation for the deceased having drowned.

343. Either way, I consider that this indicates that the deceased’s death was accidental within the meaning of the policy. I therefore conclude that the death of the deceased was accidental within the meaning of the insuring clause within the contract of insurance.

Issue 6 – Whether the policy exclusions apply

344. The policy exclusion of death by suicide has been the subject of consideration and findings at paragraphs [258] to [280] above. The policy exclusion of intentional self-inflicted injury has been the subject of consideration and findings at paragraphs [281] to [314] above. The policy exclusion of accidental death without any other contributing cause has been the subject of consideration and findings at paragraphs [315] to [332] above. The effect of those findings is that the defendant has not established the applicability of any of those exclusions to the circumstances of the deceased’s death.

345. The remaining policy exclusion to be considered, for completeness, is that of being under the influence of drugs except when prescribed by a registered physician: Exhibit “A”, p 3.

346. In the absence of any stated policy definition of the word “drugs”, in the context of the policy, taking the plain ordinary meaning of that word, I consider that alcohol should not be understood to be synonymous with the word “drugs”. I do not consider the objective contractual intention of the parties to have been that a reference in the policy to drugs should be taken to include alcohol. Accordingly, I consider that the deceased’s use of alcohol, and her intoxication due to alcohol in the events leading to her death, does not engage any policy exclusion.

347. The remaining policy exclusion requiring consideration is the deceased having been under the influence of drugs except when prescribed by a registered physician.

348. In that consideration, the deceased’s ingestion of the drug Ibuprofen has no relevance, as explained at paragraphs [11] and [33] above.

349. The only drug of relevance to this analysis is the prescription drug Zopiclone or Imovane, which was prescribed by the deceased’s general practitioner. There is no dispute that at the time of her death, the deceased was under the influence of that drug.

350. In this context, I take the policy term “registered physician” to refer to a legally qualified medical practitioner who is registered and licensed to practise, and is able to lawfully prescribe restricted drugs for therapeutic purposes.

351. The defendant has not proven that the deceased obtained Zopiclone or Imovane without a therapeutic prescription from a legally qualified and registered medical practitioner.

352. The residual question concerning the policy exclusion under present consideration is whether the amount of Imovane taken by the deceased in the events leading to her death should be considered as not having been prescribed by her general practitioner, who had prescribed one Imovane tablet to be taken at night “prn”. The question is whether the deceased’s use of Imovane in excess of that prescribed dose defeats this claim. Nothing turns on the fact that the deceased took Imovane in the afternoon rather than at night.

353. The policy makes no reference to drug dosage in connection with prescribed drugs. In those circumstances, I consider that it would be unreasonable to conclude that the objective contractual intention of the parties was to include an implied term into the contract which gives the exclusion phrase “under the influence of drugs except when prescribed by a registered physician” an additional meaning to the effect that for the policy to apply, the dosage of the drug taken by the person covered by the policy must be restricted to the dosage prescribed.

354. When reading the policy as a whole, bearing in mind it was intended to provide insurance cover for accidental death, I consider that a conclusion contrary to that stated in the immediately preceding paragraph, would lack commercial or business efficacy. This is because it would have the unintended effect of excluding insurance cover for death due to accidental ingestion of an excessive dose of a prescribed drug. I find that is not a matter the parties had intended by their contract of insurance.

355. I therefore conclude that none of the policy exclusions claimed by the defendant have been engaged to the effect of defeating the plaintiff’s claim.

Issue 7 – Date for calculating interest

356. As the plaintiff has succeeded in relation to the matters calling for decision regarding Issues 1 – 6, it becomes necessary to calculate the plaintiff’s entitlement to interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cwth).

357. That section provides that where an insurer is liable to pay a person an amount under a contract of insurance, the date for the commencement of the calculation of interest is the day from which it was unreasonable for the insurer to have withheld the payment. The liability for interest continues until the date payment is made: s 57(2) of that Act. The rate of interest is to be calculated in accordance with reg 32 of the Insurance Contracts Regulation 1984 (Cwth).

358. In my view, the insurer’s doubts about the plaintiff’s entitlement to be paid pursuant to the policy reasonably remained for so long as the first coronial finding of suicide remained unaltered.

359. As the plaintiff’s claim for payment was made on 18 February 2009, and the coronial finding of suicide continued to remain unchanged until 13 December 2012, on the state of the evidence, I consider that for a time, on that evidence, the insurer was justified in its decision to decline to pay the plaintiff the amount specified in the policy.

360. When, on 8 January 2013, after the second coronial finding which did not replicate or follow the earlier finding, the plaintiff requested the defendant to reconsider its decision to decline payment, thereafter, the defendant was entitled to a reasonable period of time in which to carry out some investigations and to reconsider the decision it had earlier maintained not to pay the plaintiff’s claim.

361. On 25 March 2013, the insurer communicated its decision to maintain its stance of declining to pay the plaintiff’s claim. Although the intervening period of 10 weeks seems long, it was not an inherently unreasonable time frame for the required reconsideration.

362. The defendant’s reasons for maintaining its refusal to pay the plaintiff’s claim are cited at paragraph [166] above. As I have already observed, those reasons are in part incomprehensible.

363. I consider that the defendant’s decision to refuse payment of the claim was based on a view of the coronial evidence that was incorrect. Furthermore, it was not supported by the clinical records, or Dr Chamberlain’s letter dated 30 August 2010, or Dr Huntsman’s report dated 25 June 2012. More importantly, the defendant’s position was not supported by any contemporaneous expert evidence that has been admitted into evidence in these proceedings. It appears that at the time the defendant rejected the plaintiff’s claim, it did not have Dr Perl’s report until it was later provided by the plaintiff’s solicitor, on 28 January 2015.

364. Accordingly, I consider that the commencement date for calculation of interest on the plaintiff’s claim pursuant to s 57 of the Insurance Contracts Act 1984 (Cwth) should be 25 March 2013.

Conclusion

365. For the above reasons, I find that it is more probable than not that the deceased’s death was accidental within the meaning of the policy. I also find that the defendant has failed to discharge its onus of proving that the circumstances of the deceased’s death came within the policy exclusions. The defendant is therefore liable to the plaintiff for liquidated damages in the agreed amount due under the policy, namely $200,000, plus interest as claimed.

Interest

366. On 18 May 2016, for the purposes of identifying the applicable amount of interest, the parties were advised to assume for the purposes of s 57 of the Insurance Contracts Act 1984 (Cwth) that the relevant date for the commencement of an interest calculation was 25 March 2013. On 19 May 2016, the parties indicated their agreement that the applicable interest on the policy sum of $200,000, for the period 25 March 2013 to 27 May 2016, amounted to $39,627.25.

Disposition

367. The plaintiff is entitled to a judgment against the defendant in the claimed sum of $200,000 plus interest assessed at $39,627.25, totalling $239,627.25.

Costs

368. As the plaintiff has succeeded in his claim, he is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other order for costs.

Orders

369. I make the following orders:

1. Verdict for the plaintiff in the sum $200,000;

2. Interest is assessed in the sum of $39,627.25;

3. Judgment for the plaintiff in the sum of $239,627.25;

4. The exhibits may be returned;

5. Liberty to apply for further or other orders within 7 days of today’s date.

Appendix

Analysis of selected prescriptions

Item	Prescribing date	Page ref. in Exhibit “A”	Selected prescribed drug including dosage	Calculated end date of prescription assuming dispensed on prescribing date and 30 tablets per packet	Days not covered by Imovane script before next recorded prescribing date
1.	14.06.2000	73	Imovane 7.5mg x 1 nocte prn	14.07.2000	201 days to 31.01.01
2.	31.01.2001	73	Imovane 7.5mg x 1 nocte prn	02.03.2001	12 days to 14.03.01
3.	14.03.2001	72	Imovane 7.5mg x 1 nocte prn	13.04.2001	11 days to 24.04.01
4.	24.04.2001	71	Imovane 7.5mg x 1 nocte prn	24.05.2001	63 days to 27.07.01
5.	27.07.2001	71	Imovane 7.5mg x 1 nocte prn	22.08.2001	6 days to 28.08.01
6.	28.08.2001	71	Imovane 7.5mg x 1 nocte prn	27.09.2001	33 days to 24.10.01
7.	24.10.2001	70/71	Imovane 7.5mg x 1 nocte prn	23.11.2001	10 days to 03.12.01
8.	03.12.2001	70	Imovane 7.5mg x 1 nocte prn	02.01.2002	13 days to 15.01.02
9.	15.01.2002	70	Imovane 7.5mg x 1 nocte prn	14.02.2002	7 days to 21.02.02
10.	21.02.2002	69	Imovane 7.5mg x 1 nocte prn	23.03.2002	4 days to 27.03.02
11.	27.03.2002	69	Imovane 7.5mg x 1 nocte prn	26.04.2002	21 days to 17.05.02
12.	17.05.2002	68	Imovane 7.5mg x 1 nocte prn	16.06.2002	1 day to 17.06.02
13.	17.06.2002	67	Imovane 7.5mg x 1 nocte prn	17.07.2002	51 days to 06.09.02
14.	06.09.2002	67	Imovane 7.5mg x 1 nocte prn	06.10.2002	53 days to 28.11.02
15.	08.10.2002	66	Imovane was not prescribed	-	-
16.	28.11.2002	66	Imovane 7.5mg x 1 nocte prn	28.12.2002	38 days to 04.02.03
17.	04.02.2003	65	Imovane 7.5mg x 1 nocte prn	06.03.2003	18 days to 24.03.03
18.	24.03.2003	65	Imovane 7.5mg x 1 nocte prn	23.04.2003	13 days to 06.05.03
19.	06.05.2003	65	Imovane 7.5mg x 1 nocte prn	05.06.2003	26 days to 01.07.03
20.	01.07.2003	64	Imovane 7.5mg x 1 nocte prn	01.08.2003	10 days to 11.08.03
21.	11.08.2003	64	Imovane 7.5mg x 1 nocte prn	10.09.2003	1 day to 11.09.03
22 August 2003 – Hospital admission for Imovane overdose with ingestion of alcohol
22.	11.09.2003	64	Imovane 7.5mg x 1 nocte prn	11.10.2003	16 days to 27.10.03
23.	27.10.2003	63	Imovane 7.5mg x 1 nocte prn	26.11.2003	16 days to 12.12.03
24.	12.12.2003	63	Imovane 7.5mg x 1 nocte prn	11.01.2004	19 days to 30.01.04
25.	30.01.2004	63	Imovane 7.5mg x 1 nocte prn	29.02.2004	15 days to 15.03.04
26.	15.03.2004	62	Imovane 7.5mg x 1 nocte prn	14.04.2004	13 days to 27.04.04
27.	27.04.2004	62	Imovane 7.5mg x 1 nocte prn	27.05.2004	0 days to 27.05.04
28.	27.04.2004	62	Imovane 7.5mg x 1 nocte prn	26.06.2004	0 days to 26.06.04
29.	27.04.2004	62	Imovane 7.5mg x 1 nocte prn	26.07.2004	0 days to 27.07.04
30.	27.07.2004	61	Imovane 7.5mg x 1 nocte prn	26.08.2004	35 days to 30.09.04
31.	30.09.2004	61	Imovane 7.5mg x 1 nocte prn	30.09.2004	36 days to 05.11.04
32.	05.11.2004	61	Imovane 7.5mg x 1 nocte prn	05.12.2004	12 days to 17.12.04
33.	17.12.2004	61	Imovane 7.5mg x 1 nocte prn	16.01.2005	9 days to 25.01.05
34.	25.01.2005	60	Imovane 7.5mg x 1 nocte prn	24.02.2005	33 days to 29.03.05
35.	29.03.2005	60	Imovane 7.5mg x 1 nocte prn	28.04.2005	95 days to 01.08.05
36.	01.08.2005	59	Imovane 7.5mg x 1 nocte prn	01.09.2005	(Not relevant)
37.	19.09.2005	59	Serepax 30mg x 1/2 nocte*	18.11.2005	(Not Imovane)
38.	24.10.2005	58	Serepax 30mg x 1/2 nocte*	23.12.2005	(Not Imovane)
39.	17.01.2006	58	Serepax 30mg x 1/2 nocte*	19.03.2005	(Not Imovane)
40.	17.01.2006	58	Avanza sample to try - query	(Not known)	(Not Imovane)
41.	29.03.2006	57	Serepax (30mg x 1/2 nocte)*	28.05.2006	(Not Imovane)
42.	30.06.2006	56	Imovane 7.5mg x 1 nocte prn	30.07.2006	165 days to 11.01.07
43.	11.01.2007	55	Imovane 7.5mg x 1 nocte prn	10.02.2007	54 days to 05.04.07
44.	05.04.2007	55	Imovane 7.5mg x 1 nocte prn	05.05.2007	127 days to 10.07.07
45.	10.07.2007	55	Imovane 7.5mg x 1 nocte prn	09.08.2007	31 days to 09.10.07
46.	18.09.2007	54	Endep 25mg daily	(Not known)	(Not Imovane)
47.	09.10.2007	54	Imovane 7.5mg x 1 nocte prn	08.11.2007	123 days to 11.03.08
48.	11.03.2008	54	Imovane 7.5mg x 1 nocte prn	10.04.2008	64 days to 13.06.08
49.	13.06.2008	53	Imovane 7.5mg x 1 nocte prn	13.07.2008	87 days to 07.10.08
50.	15.07.2008	53	Tramal 50mg 1 – 2 tds prn	(Not known)	(Not Imovane)
51.	07.10.2008	52	Imovane 7.5mg x 1 nocte prn	06.11.2008	86 days to 31.01.09
52.	22.01.2009	52	Imovane 7.5mg x 1 nocte prn	21.02.2009	No further date
53.	31.01.2009	-	Death of deceased	-	25 Imovane tablets found remaining in packet
* Assumption : 30 Serepax tablets per prescription

**********

Amendments

27 May 2016 - Amendment: Paragraph [10]: typographical error corrected.

Decision last updated: 30 May 2016