Craig v Q-COMP [2006] QMC 9

MAGISTRATES COURTS OF QUEENSLAND CITATION: Craig v Q-COMP [2006] QMC 9 PARTIES: NATALIE CRAIG (appellant) v Q-COMP (respondent) FILE NO/S: MAG195876/05(3) DIVISION: Magistrates Courts – Industrial Magistrate PROCEEDING: Appeal against decision of Q-COMP ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 8 December 2006 DELIVERED AT: Southport HEARING DATE: 1 August 2006 MAGISTRATE: Costanzo JJ ORDER: Appeal allowed CATCHWORDS: INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – self-inflicted injuries — whether death by suicide was an intentionally self-inflicted injury —whether compensation is payable to dependants of the worker — meaning of ‗injury‘ — meaning of ‗death‘ — meaning of ‗self inflicted injury‘ — comparison with death resulting from an injury caused by the worker‘s serious and wilful misconduct — onus of proof that injury is self-inflicted Workers’ Compensation and Rehabilitation Act 2003 (Qld), sections 5, 27, 28, 31, 32, 129, 130 Workers’ Compensation and Rehabilitation Regulation 2003, section 113 Avis v WorkCover Queensland [2000] QIC 67 (7 December 2000); 165 QGIG 788 Berg v Workers Compensation Board of Queensland [1990] Workers Compensation Reports 349 Bird v Australian Iron & Steel Pty Ltd (1979) 53 WCA (NSW) 227 Briffa v Q-COMP [2005] QIC 55 (19 August 2005); 180 -- 1 of 39 -- 2 QGIG 70; (No. C24 of 2005) Church v Dugdale & Adams Ltd (1929) 22 BWCC 444 at 449 per Lord Hanworth MR Clark v Flanagan (1934) 52 CLR 416; (1934) 8 ALJR 309 Collins v Byrne [1951] WCR (NSW) 62 Crengle v Lake Brummer Saw Milling Co [1953] NZLR 765 Dwyer v State of South Australia (1979) 46 SAIR 170 Groos v WorkCover Queensland (2000) 165 QGIG 106 Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629; [2000] NSWCA 87 Innes and Commonwealth of Australia; Re: (1979) 1 CCD 129 Ivey v WorkCover Queensland [1999] QIC 65 (25 November 1999); 162 QGIG 392 Labaj v WorkCover Queensland [2003] QIC 155 (17 September 2003); 174 QGIG 370 Lackey v WorkCover Queensland [2000] QIC 43 (29 August 2000); 165 QGIG 22 Laing v Fridgemobiles of Australia Ltd [1979] WCR (NSW) 116 Lavis & Pfeifer on behalf of Felstead (infant) v WorkCover & Allianz Australia (V and P De Vizio Pty Ltd) [2001] SAWCT 120 (16 October 2001, unreported) Malone v Cayzer Irvine & Co (1908) 1 BWCC 27 McArdle SJ & McArdle SJ as Guardian of Kaitlin McArdle v South Australian Health Commission [1997] SAWCAT 66 (22 August 1997, unreported) McLaren and Comcare; Re: (1992) 16 AAR 205; No. N91/496 AAT No. 8073 Muscat v NSW Harness Racing Club Ltd [1994] NSWCC 36; (1995) 11 NSWCCR 1 Nettlefold v Workers Compensation Board (Qld) (1984) AWCCD 73-505 in the 1990 CCH edition Parry v English Steel Corporation Ltd (1930) 32 BWCC 272 Potter (widow of Kym Potter (deceased)) v The State of South Australia (South Australia Police) [2001] SAWCT 123 (26 October 2001, unreported) Qantas Airways Limited v Q-COMP [2006] QIRComm 27 (22 February 2006); 181 QGIG 301 -- 2 of 39 -- 3 R v Huntbach; Ex parte Lockley [1944] KB 606 SA Health Commission v McArdle & Anor (SCSA Full Court, SCGRG-97-1309; S6685, 26 May 1998 unreported) Sadlo & Comcare, Re: (2005) 88 ALD 169; [2005] AATA 1006 Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 Smith v Commissioner of Police (No 2) (2000) 20 NSWCCR 27 Spiratos v Australasian United Steam Navigation Co Ltd (1955) 93 CLR 317; [1955] ALR 668; (1955) 29 ALJR 376 Tappenden v Workers Compensation Board of Queensland [1993] Workers Compensation Reports 454 Ukovic & Australian Telecommunications Commission, Re: (1984) 6 ALN N129; (No. N83/46, AATA, unreported) Wild & Australian Telecommunications Commission Re: (1986) 9 ALN N257; (No. Q84/29; AATA No. 2614, unreported) WorkCover Queensland v Elliot Anderson [1999] QIC 11 (22 February 1999); 160 QGIG 175 WorkCover Queensland v David Cook [2003] QIC 147 (15 August 2003); 173 QGIG 1416 Avis v WorkCover Queensland [2000] QIC 67 (7 December 2000); 165 QGIG 788 Berg v Workers Compensation Board of Queensland [1990] Workers Compensation Reports 349. Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629; [2000] NSWCA 87 Ivey v WorkCover Queensland [1999] QIC 65 (25 November 1999); 162 QGIG 392 Lackey v WorkCover Queensland [2000] QIC 43 (29 August 2000); 165 QGIG 2 Nettlefold v Workers Compensation Board (Qld) (1984) AWCCD ¶73-505 (1990 CCH edition) COUNSEL: MJ Campbell for appellant A McLean-Williams for respondent SOLICITORS: AK Abbott & Co for appellant Respondent on own behalf -- 3 of 39 -- 4 THE APPEAL [1] On 27 July 2004, the deceased made an application for compensation (Ex 1). It was accepted. [2] The Employers Report (Ex 2) was obtained on 29 September 2004. [3] The Appellant‘s husband, Mr Brett William John Craig, died on 8 January 2005. He committed suicide. [4] On 2 February 2005, Natalie Craig lodged an undated "Application for Compensation - Fatal Injury" (Ex 3) in respect of her husband‘s death. [5] On 2 June 2005 WorkCover made a decision (Ex 4) not to make a decision about the above application until there was a Coroner‘s Report. [6] On 18 August 2005 Natalie Craig applied for a review (Ex 6) in relation to WorkCover's failure to make a decision in relation to her application for compensation. [7] On 20 September 2005, seven months after the application was originally lodged, a Review Officer decided (Ex 7) that the claim was ―one for rejection in accordance with sections 545(1) and 545(2)(a) of the Workers' Compensation and Rehabilitation Act 2003.‖ [8] Natalie Craig now appeals to an Industrial Magistrate against that review decision (Appeal Notice dated 11 October 2005, Ex 8). [9] I have had regard to each of the above exhibits. [10] The Review Officer rejected the application because she did not consider the deceased worker was suffering from a compensable work-related injury in accordance with section 32(1) of the Act. [11] This appeal is a hearing de novo. Therefore, it will suffice to say that the ground for rejection was a finding that Mr Craig‘s death ―resulted from his own wilful act in taking his own life‖. The Review Officer also stated she was not satisfied — 1. that Mr Craig ―was suffering from a psychological injury that arose as a direct consequence of the physical injury at the time of his death‖ or 2. that he was suffering from a psychological condition at the time of his death which interfered with his mental functioning and overthrew his intention to commit suicide, or 3. that the applicant had proven the fatal injury was a direct consequence of his physical injury or that his employment was a significant contributing factor to his suicide. [12] I state at the outset I am not reviewing the decision by the Review Officer or her reasoning. However, no-one has a monopoly on ideas and I will occasionally consider her reasoning to test my own reasoning about the facts and the law. BACKGROUND FACTS -- 4 of 39 -- 5 [13] The appellant had claimed that: "The attack and original injury and the consequence of this attack in the work place has led to the death of my husband..." [14] On 27 July 2004 the worker lodged an Application for Compensation for an injury described as, "left side of head, neck and shoulder" sustained at work when he was assaulted by the relative of a co-worker. That application was accepted, i.e. WorkCover accepted that the injury had been sustained in accordance with s 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act). The worker had not returned to work before he died. [15] The appellant had sought compensation for herself and her daughter, Samantha Craig, as dependants because the death was caused by the original work-related injury. [16] Under section 320(2) of the Industrial Relations Act 1999 (enlivened by s 582(1) of the Act) I am ―not bound by technicalities, legal forms or rules of evidence‖ and I may inform myself on a matter I consider appropriate in the exercise of my jurisdiction. Part of the evidence tendered by the Appellant, with the consent of QComp was Exhibit 7, the Review Decision made on 20 September 2005. Further background evidence is contained in that decision. [17] The Review Officer noted the deceased had gone fishing at Hinze Dam with his nephew and uncle. The Review Officer had regard to a statement by the nephew, Zane Abel: "As Hinze Dam is only electric motors we took the battery out of the car to start the boat. We spent the day fishing and on the way back in the boat the battery went dead. We rowed over to the edge of the dam and we decided to walk back to the car.. .Once the three of us were at the car we tried to get the car started but without the battery we had no luck. Brett was pissed off because we couldn't start the car, we were also out of mobile range so we were unable to call for help. He threw his phone out of frustration. At this time Dad and I decided to walk back to the boat and get the battery... We left Brett at the car. I think the time was about 3.15pm but I am not 100% sure. Dad and I walked back to the boat and as the wind had died down we decided to row back to the car. As we approached the car it was about 4.40pm. … At no time had Brett told me that he was suicidal. I know that he was stressed because he wasn't able to work. It is just so out of character." [18] The Review Officer also had regard to a statement by the uncle, Geoffrey Abel: "Brett was in good spirits when we arrived and seemed keen to go fishing...Brett never said anything to me that would indicate any intention to hurt himself." [19] Neither of their statements were tendered at the hearing of this appeal. [20] The Review Officer also had regard to a statement given by the Appellant to police: "Brett was excited about going fishing as he hadn't been for years… At about 3.54pm I received a text from Brett that said, "pick me up from top of dam"...I tried to ring him to confirm but I couldn't get through on his -- 5 of 39 -- 6 phone. I know that the reception out there is not good. I also sent him a text but didn't get a reply...I think the time was about 4.30pm when we left home and it is about a 20 minute drive out to the dam. We drove down the dirt road towards the boat ramp I could see Brett's truck on the road. The bonnet was up and I could see him sitting on the ground with his back against the driver's door." [21] The Appellant then walked over to the truck and found her husband had taken his own life. Following the Coroner‘s Report the Death Certificate (Ex 9) stated the cause of death was by hanging. [22] A former work colleague of the deceased, David Adair, also provided a statement wherein he said: "After Brett left (the employer‘s) I saw him two or three times over a couple of months...Brett was still suffering from his injury and he still had a full cast on...I guess Brett wasn't as happy as he usually was but he was very angry that he couldn't work..." [23] David Adair‘s statement was not tendered in this appeal. [24] The deceased‘s general practitioner, Dr Jack Gassner, and a Dr Ian Bartel, also provided evidence to the Respondent. However, below I will deal in more detail with that and with the evidence before me. [25] Dr Bartel‘s statement was not tendered in this appeal. [26] I can only assume that counsel for each of the parties is satisfied that the evidence as extracted from statements made by witnesses not called before me suffices as it appears in Exhibit 7. These witnesses were not required for cross-examination. There was no submission to the effect I should ignore or give limited weight to their evidence. [27] The only oral evidence called before me was the evidence by the two dependants (Brett Craig‘s widow and daughter), Brett Craig‘s brother-in-law. and one doctor. I will refer below to this medical evidence in the context of the preceding reports to QComp. As stated, this is a hearing de novo, but it is necessary to consider all the evidence in its proper context, i.e. against the background of the statements and reports to QComp. [28] However, before I analyse the evidence in detail I will set out further the relevant legal framework governing the hearing and determination of this appeal. RELEVANT STATUTORY FRAMEWORK [29] The relevant statutory law is contained in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act). [30] The purpose and effect of the workers‘ compensation scheme for Queensland is set out in section 5: 5 Workers’ compensation scheme (1) This Act establishes a workers‘ compensation scheme for Queensland— -- 6 of 39 -- 7 (a) providing benefits for workers who sustain injury in their employment, for dependants if a worker‘s injury results in the worker‘s death, for persons other than workers, and for other benefits; and (b) encouraging improved health and safety performance by employers. (my underlining) [31] Here, there was no real dispute that Natalie Craig was a partial dependant and that Samantha Craig was a total dependant under sections 27 and 28 of the Act: 27 Meaning of dependant A dependant, of a deceased worker, is a member of the deceased worker‘s family who was completely or partly dependent on the worker‘s earnings at the time of the worker‘s death or, but for the worker‘s death, would have been so dependent. (my underlining) 28 Meaning of member of the family A person is a member of the family of a deceased worker, if the person is— (a) the worker‘s— (i) spouse; or (ii) parent, grandparent and stepparent; or (iii) child, grandchild and stepchild; or (iv) brother, sister, half-brother and half-sister; or (b) if the worker stands in the place of a parent to another person … [32] There is, however, substantial disagreement between the parties about the application of section 129 of the Act: 129 Self-inflicted injuries Compensation is not payable for an injury sustained by a worker if the injury is intentionally self-inflicted. [33] ―Injury‖ is defined for the Act in section 32. The section does not distinguish between an injury which is compensable and one which is not. The section relevantly provides: [34] Compensation is payable under chapter 3 of the Act (or under chapter 4, which is not relevant in this case). In chapter 3, section 108 relevantly provides: 108 Compensation entitlement (1) Compensation is payable under this Act for an injury sustained by a worker. [35] Chapter 3, part 4 (Compensation affected by workers‘ conduct) is comprised of only two sections, i.e. section 129 quoted above and section 130 which relevantly provides: 130 Injuries caused by misconduct (1) Compensation is payable for an injury sustained by a worker that is caused by the worker‘s serious and wilful misconduct only if— (a) the injury results in death; or (b) the insurer considers that the injury could result in a WRI of 50% or more. [36] I will discuss this last section further below. [37] In part 6 (Maximum statutory compensation) section 140(1) provides: -- 7 of 39 -- 8 140 Maximum entitlement (1) The maximum amount of compensation payable for 1 injury or multiple injuries sustained in 1 event, other than for a latent onset injury that is a terminal condition, is— (a) for compensation payable as weekly payments under part 9—$200000; (b) for lump sum compensation payable under section 180—$200000. [38] ―Event‖ is defined in section 31: 31 Meaning of event (1) An event is anything that results in injury, including a latent onset injury, to a worker. (2) An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker. (3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period. (4) If multiple injuries result from an event, they are taken to have happened in 1 event. [39] In part 11 (Compensation on worker‘s death), section 194 provides: 194 Application and object of pt 11 (1) This part applies if a worker dies because of an injury. (2) The object of this part is to provide for payment by an insurer of— (a) particular expenses arising from the worker‘s injury and death; and (b) compensation to persons having an entitlement to compensation under this part. [40] Therefore, if this appeal is successful, the amount of compensation payable is determined under part 11, section 200: 200 Total dependency (1) This section applies if at least 1 of the worker‘s dependants was, at the time of the worker‘s death, totally dependent on the worker‘s earnings. (2) The amount of compensation payable for the worker‘s dependants is— (a) if the worker has left dependent members of the worker‘s family, for the members—$374625; and … (c) if the worker has left dependent members of the worker‘s family or a child of the worker‘s spouse who was totally dependent on the worker‘s earnings and who are under 16 or students, for each member or child—a weekly amount equal to 10% of QOTE while the member or child is under 16 or a student.1 [41] Upon reading section 129 together with section 32, in the context of section 108, and taking into account the history of the section, it is not clear how section 129 is meant to deny compensation in suicide cases. Nor is it clear who should bear the onus of proving the relevant injury was intentionally self-inflicted. I will deal with these two issues in turn. Death caused by suicide— What is the relevant ‘injury’ for s 129 to operate? [42] One normally speaks of death caused by an injury or illness, and not as death being itself an injury. In dealing with s 27(2) of the Compensation (Commonwealth -- 8 of 39 -- 9 Government Employees) Act 1971 (Cth)2 a Full Bench of the Administrative Appeals Tribunal in Wild & Australian Telecommunications Commission Re: (1986) 9 ALN N257; (No. Q84/29; AATA No. 2614, unreported) stated at para [37] ―The issue is not technically whether the death of the deceased was self- inflicted but whether the "injury" was intentionally inflicted. Death is not an injury. The injury which has been found in this case is the psychiatric disease and there is no suggestion that that disease was self-inflicted. The injury however which is the immediate cause of death was a gunshot injury to the head, and that in the context of this case, is the specific issue which s 27(2) poses.‖ (My emphasis) [43] It would of course be a nonsense in most cases to suggest that a psychiatric disease was self-inflicted. [44] In this case the immediate cause of Brett Craig‘s death was asphyxiation due to hanging. [45] One must also have regard to section 31(3) quoted above: A worker may sustain 1 or multiple injuries as a result of an event whether the injury or injuries happen immediately or over a period. [46] The difficulty in interpreting section 129 arises from the second use of the word ‗injury‘ in the subsection, as well as the definition of injury and the existence of section 130 in the same part of the Act. At first sight, reading sections 32 and 129 together, for section 129 it would seem an ―injury‖ includes death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury. [47] Looked at another way, if the defining words in section 32 are inserted in section 129 in lieu of ―injury‖, the section would read: Compensation is not payable for death sustained by a worker from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury, if the death is intentionally self-inflicted. [48] However, if the remaining definitional word ‗injury‘ is then replaced by ―clinical depression‖ or some similar disorder of the mind, the section would have to be read as if it said: Compensation is not payable for death sustained by a worker from clinical depression arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the clinical depression, if the death is intentionally self-inflicted. [49] This is an illogical nonsense. The authorities discussed below clearly establish that if a person‘s death is caused by that person‘s depression, e.g. by the person‘s will or volition being overwhelmed, then that death is not intentionally self-inflicted. [50] However, the legislature must have intended the section to have a rational meaning. -- 9 of 39 -- 10 [51] To know what the correct approach is, one has to turn to further case law. However, before I do that I must first note again that Chapter 3, part 4 (Compensation affected by workers‘ conduct) is comprised of only two sections, i.e. section 129 quoted above and section 130 which relevantly provides that compensation is payable for an injury sustained by a worker that is caused by the worker‘s serious and wilful misconduct only if the injury results in death. At first sight it appears incongruous that compensation is payable if serious and wilful misconduct results in death but not if death is the result of an intentionally self-inflicted injury. [52] Interestingly, section 92 of the Workers’ Compensation Act 1990 provided: 92(1) Compensation under this Act is not payable in relation to an injury to a worker— (a) that is intentionally self-inflicted; or (b) if not intentionally self-inflicted—that is caused by the serious and wilful misconduct of the worker, unless the injury results in death or serious permanent impairment. [53] That Act therefore drew a distinction where the injury itself was not self-inflicted by the worker but the injury resulted in death. In that context, the injury referred to in subsection (1)(a) could not have included death. Injury and death were treated as two separate and different things. The circumstances in which compensation for death was or was not payable could possibly be found in a different part of the Act. [54] In 1996 the Act was replaced again. The WorkCover Queensland Act 1996, section 156 provided: Self-inflicted injuries Compensation is not payable for an injury sustained by a worker if the injury is intentionally self-inflicted. [55] That section is in exactly the same terms as section 129 of the current 2003 Act now in question. The definition of ―injury‖ was also the same as in the current 2003 Act. [56] However, the Explanatory Notes for the 1996 Act stated: ―Clause 156 replaces section 92(1)(a) of the Workers’ Compensation Act 1990 and has not changed except for being updated according to current drafting practice. It specifies that if a worker‘s injury is intentionally self- inflicted then no compensation is payable for the injury. Such an instance would be where a worker deliberately severs a finger in order to obtain monetary benefits through workers‘ compensation.‖ (my emphasis) [57] No mention was made of death or suicide cases. [58] The Explanatory Notes also assist in explaining the difference between this section and the next section dealing with deliberate misconduct: ―Clause 157 replaces section 92(1)(b) of the Workers’ Compensation Act 1990. Deliberate and serious misconduct of workers means the worker is taking extraordinary risks that are often contrary to the safe practices established by the employer. However, if a worker‘s misconduct results in serious injury (i.e. would result in a work related impairment of at least -- 10 of 39 -- 11 50%) or death, the worker (or the worker‘s dependant) is given an entitlement to compensation for the injury.‖ (my emphasis) [59] There is no similar or further assistance to be gained from the Explanatory Notes for the current 2003 Act. Therefore, one could assume the intended operation of sections 129 and 130 is as explained on the previous occasion for the 1996 Act. CASE LAW [60] Counsel for QComp relied on Berg v Workers Compensation Board of Queensland [1990] Workers Compensation Reports 349. This was a case based on the old legislative regime, which existed from 1916 to 1990, under section 9 of the Workers Compensation Act of 1916. Section 9 provided: ―No compensation is payable on account of any injury to or death of a worker caused by an intentional self-inflicted injury.‖ Section 3 of that Act provided a definition of ‗injury‘ 3 which did not include ‗death‘, whereas the current Act does. His Honour held ―It was unnecessary to establish insanity or, for that matter, to be able to apply any other label to the condition or any other qualification of it… .‖ In that case His Honour President Moynihan said it was not a question of rejecting or accepting the medical evidence, which was all one way. He accepted the man's capacity to resist the imperative of putting an end to his life, as the means of resolving his perceived difficulties, was overwhelmed. [61] In the appeal before President Moynihan in Berg’s Case (above) the issue was more straight forward. It was simply, as His Honour stated at 357, whether it had been established that the death (not injury) was caused by an intentional self-inflicted injury. [62] At first sight, as I have already mentioned above, there are difficulties caused by the absence of the reference to death in section 129 and by the use of the word ‗injury‘ twice in the section, the second time referring to ―the injury‖ which would usually be interpreted to attach itself to the first mentioned injury. [63] I raised this issue with counsel during submissions. Counsel for the Appellant referred to Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629; [2000] NSWCA 87. In New South Wales the equivalent section to section 129, like the repealed 1916 Queensland provision refers to ―any injury to or death of a worker caused by an intentional self-inflicted injury‖ and the definition of ‗injury‘ in the NSW section makes no reference to ‗death‘4. At para [33] – [38] Giles JA‘s comments (with which Meagher and Heydon JJA agreed) were therefore obiter because the case did involve death: ―33 Section 14(3) is not easy to construe. The word "injury", used twice, must be used in two different senses, notwithstanding that it is defined in s 4. On one view, the first injury is a physical condition short of death caused by an injury as defined, and the injury as defined must not be an intentional self-inflicted injury. On this construction s 14(3) says nothing about death by suicide in a case such as the present, because it could apply only if the (original compensable) injury was an intentional self-inflicted injury. On another view, the first injury is an injury as defined and the second injury is an act of injuring; this appears to have been the view taken in Bird v Australian Iron & Steel Pty Ltd. On this construction s 14(3) can arguably -- 11 of 39 -- 12 apply to death by suicide in a case such as the present, because the death of a worker by suicide could be said to be caused by an intentional self- inflicted act of injuring. 34 There may be some difficulties, despite the hallowed past of the approach, in inquiring into insanity as going to causation in a suicide case. 35 First, the premise is that, absent a finding of insanity, the intentional act of suicide would break the chain of causation between the injury and the death. But it is now more readily recognised that in causation, said to be a question of fact although tempered by value judgments and infused with policy considerations because with a view to allocating legal responsibility (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506), an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation, for example the resignation of the plaintiff in Medlin v State Government Insurance Commission (1995) 182 CLR 1; the reasons of Deane, Dawson, Toohey and Gaudron JJ include (at 10) - "The necessary causation between a defendant's negligence and the termination of a plaintiff's employment, in the sense that the termination of the employment is the product of an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff's own decision to retire prematurely. If, for example, it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries." 36 If this be so, I do not see why, if the facts be appropriate, death by suicide could not be found to have resulted from work-related injury without a finding that the worker was insane. 37 Secondly, describing the inquiry as one into insanity may mislead. Insanity is a concept of varying content, and the true inquiry (if the validity of any such inquiry be assumed) is into the worker's mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in contexts not involving insanity that the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor's intentional act. In the context of duress, for example, Lord Simon said that duress "deflects, without destroying, the will of one of the contracting parties" (Director of Public Prosecutions for Northern Ireland v Lynch (1975) AC 653 at 695), and Lord Scarman took as one of the elements of duress "pressure amounting to the compulsion of the will of the victim" (Universe Tankships Inc of Monrovia v International Transport Workers Federation (1983) 1 AC 366 at 400). Lord Scarman said that the classic -- 12 of 39 -- 13 case of duress is "not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him" (ibid). Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker's circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result. 38 If s 14(3) on its proper construction can apply to death by suicide in a case such as the present, which as will be seen it is not necessary to decide, the same considerations arise. Although the section refers to intentional self-inflicted injury, the deliberate act of suicide may be the product of a will so overborne or influenced by the worker's circumstances that it should not be regarded as an intentional act‖ (my emphasis) [64] In Smith v Commissioner of Police (No 2) (2000) 20 NSWCCR 27 Neilson J referred to the last quoted passages as ―a significant obiter dictum‖. His Honour still had some difficulty with the approach in Holdlen Pty Ltd v Walsh(above). At paragraph [133] Neilson J held: ―The first difficulty I must advert to is whether it be proper to consider tests of causation applicable in the assessment of damages, where foreseeability is the test, to workers compensation law. Secondly, to allow compensation where the death is self-inflicted, appears to obviate the provisions of s 14(3). With great respect, it appears to me that the predecessor of s 14(3) was inserted into the then Act for the reasons accepted by Gibson J in Bird’s case, … . It enacts the case law then developed. Although that case law may now be considered to be incorrect5, the fact that s 14(3) exists, and its purpose, cannot be ignored. In any event, even if Giles JA be correct, a chain of causation is still necessary … .‖ (My emphasis). [65] There are many more authorities on the relevant issue than the few authorities this court was referred to during submissions (at the court‘s invitation) in this case. [66] One such case is Bird v Australian Iron & Steel Pty Ltd (1979) 53 WCA (NSW) 227 which was followed in Smith’s case (above) and in Holdlen’s case (above). In Bird’s case Gibson J accepted that the second word ‗injury‘ in s 7(3)(c) of the NSW Act of 1926 was used in the gerundial6 sense of ‗injuring‘ or ‗wounding‘ and that the use of the word ‗intentional‘ in association with ‗self-inflicted injury‘ was designed to preserve and incorporate the case law about the interpretation of the subsection including the case of Malone v Cayzer Irvine & Co (1908) 1 BWCC 27 at 31 where the Lord President held: ―The question whether death resulted from the injury resolves itself into an enquiry about the chain of causation. If the chain of causation is broken by a novus actus interveniens so that the old cause goes and a new one is substituted for it, this is a new act which gives a fresh origin to the after- consequences.‖ [67] A simple example of a relevant chain of causation was stated in Re: McLaren and Comcare (1992) 16 AAR 205 at 209; No. N91/496 AAT No. 8073 at [19]: -- 13 of 39 -- 14 ―The Tribunal's findings undoubtedly put Dr McLaren's death into the category of legally compensable deaths under the Act; work caused his stress which caused his major depressive illness which caused his suicide.‖ [68] I conclude that for section 129 in a case involving death by suicide the relevant ‗injury‘ where first mentioned refers to any injury which comes within the definition of injury in section 32, including, for example, a mental disorder, or death from an injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury. Further for s 129 the second reference to injury is a reference to the act of injuring which immediately preceded death, for example the act of causing asphyxia by hanging. Onus of Proof [69] If section 129 is raised, which party bears the onus of proving the injury was intentionally self-inflicted or of negating such an allegation? [70] One would have thought that if an injury such as asphyxiation was self inflicted but arose out of a psychiatric or psychological condition resulting from an injury at work then the resultant death would come within the expanded definition of ―injury‖, namely ―death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury‖. [71] Putting it another way, if the onus is on the dependant under s 108 to prove the above elements by a chain of causation and the dependant fails to prove that a work injury resulted in a psychiatric or psychological condition and fails to prove that the condition then caused or contributed to the worker taking his own life then compensation would not be payable under section 108 for ―an injury sustained by a worker‖. In such circumstances section 129 would be superfluous for the purpose of preventing compensation payments in cases resulting in death. That is to say, it would be superfluous unless it is to be supposed that the onus then shifts to the respondent to prove the injury was intentionally self-inflicted. [72] This view is supported by dicta in the judgment of Dixon J (as he then was), with the agreement of three of the other four members of the High Court of Australia. In Clark v Flanagan (1934) 52 CLR 416; (1934) 8 ALJR 309 there was no issue involving death. However, at CLR 429 His Honour stated: ―The existence in the Act of an express proviso that no compensation shall be payable for self-inflicted injury … does not make it less necessary that the applicant should affirmatively establish the conditions of liability, one of which is that the injury arose out of the employment. It may be that, if he proves that while actually at his work he received such an injury as that now in question, this onus must as a matter of law be treated as sufficiently discharged, unless and until the employer shows that the injury was intentionally inflicted. But when the place and occasion of injury remain unproved, the so-called presumption of innocence cannot be used to shift the burden of proof. It is only one of the arguments of probability to be taken into account by the tribunal of fact.‖ [73] The position under section 129 is not as clear as it was in that case under s 6 of the Workers' Compensation Act 1912 (WA) which provided that:‖If it is proved that the -- 14 of 39 -- 15 injury to a worker is attributable to the serious and wilful misconduct of that worker, any compensation claimed in respect of that injury shall be disallowed (my emphasis)." In Light v Mouchemore (1915) 20 CLR 647; (1915) 21 ALR 493; [1915] HCA 71 at CLR 648 the High court of Australia held that a fatal injury to a deceased worker arose out of and in the course of his employment and that his employer was not relieved of liability to pay compensation under section 6 of the Workers' Compensation Act 1912 (WA) as the employer had failed to discharge the onus of proving that such injury was attributable to the serious and wilful misconduct of the deceased. [74] In Labaj v WorkCover Queensland [2003] QIC 155 (17 September 2003); 174 QGIG 370 President Hall stated: ―The critical error is the assumption that the appeal to the Industrial Magistrate at s. 499 of the Act is a true appeal against the decision of the Statutory Review Unit. It is not. The scheme of the WorkCover Queensland Act 1996 is that claims for compensation are, in the first instance, determined by WorkCover. A claimant aggrieved by WorkCover‘s decision is given a right to what is (hopefully) an expeditious and inexpensive internal administrative review. However, if the statutory review fails to resolve issues between WorkCover and the claimant, the scheme moves from administrative decision making to a trial of the claim. The appeal de novo, as it is sometimes called, to the Industrial Magistrate is in truth a full trial at which each party is entitled to and should call all evidence available which is favourable to that party‘s case. It is a trial at which witnesses are exposed to cross-examination. It is a trial in which in the determination of the issue whether the claimant has brought himself within the definition of "injury", the Industrial Magistrate must impose upon the claimant a burden of proof on the balance of probabilities.‖ (My emphasis) [75] Labaj is authority only for the proposition that a claimant bears the onus of proving he or she has brought him or her self within the definition of "injury". [76] Similarly, in Briffa v Q-COMP [2005] QIC 55 (19 August 2005); 180 QGIG 70; (No. C24 of 2005) President Hall again stated an appeal to an Industrial Magistrate was by way of a hearing de novo and the Appellant carried the onus of proof. However, his Honour seems to have merely stated the onus born by the claimant there in respect of the critical issues for determination in that case. Those issues were stated to be ―whether one applied s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (as the acting Industrial Magistrate did) or s 34 of the WorkCover Queensland Act 1996 (as the Acting Industrial Magistrate should have done); whether there was a physical injury to the Appellant‘s neck; whether any such physical injury arose out of or in the course of the Appellant‘s employment; and whether the employment was a significant contributing factor to the injury. ― [77] At the hearing I raised with counsel whether they were familiar with the cases annotated in the online Lexis–Nexis version of Halsbury‘s Laws of Australia. At [450-1820] the relevant annotation reads: ―Compensation not payable Compensation is not payable in respect of an injury that is intentionally self-inflicted, deliberately self-inflicted or wilfully self-inflicted. Suicide may not be an intentionally self-inflicted -- 15 of 39 -- 16 injury if the person was mentally ill at the time and therefore lacking intent. The onus is on the employer to prove that the injury was self-inflicted. ‗Wilful‘ imports conduct that is deliberate and not a mere thoughtless act.‖ [78] The fifth footnote cited Nettlefold v Workers Compensation Board of Queensland (1984) AWCCD ¶73-505 as authority for the proposition that the onus of proof was on the employer to prove that the injury was intentionally self-inflicted. Neither Counsel had read the case. [79] Nettlefold v Workers Compensation Board (Qld) (1984) AWCCD ¶73-505 (1990 CCH edition) reports the decision made by President Matthews as follows: ―Where a defence by an employer to a claim for compensation is based on the allegation that the employee‘s injuries were self-inflicted, the onus is on the employer to establish that fact. This was made clear in this case on appeal to the Industrial Court of Queensland from a decision of an Industrial Magistrate. The Industrial Magistrate declined to make detailed findings of fact because of a pending criminal investigation into the matter, but simply found that the claim was not a bona fide claim in respect of injury at work. No mention was made of satisfying the onus, although reference to the burden of proof had been made in the addresses. The Court held that the Magistrate had apparently addressed himself to the need to be satisfied that the claim was not bona fide, but to satisfy a lingering doubt it remitted the matter to the Magistrate to make the necessary findings of fact to support the conclusion at which he arrived. Any findings he made would be inadmissible in criminal proceedings and so the Magistrate‘s reluctance to make detailed findings of fact was unjustified. The appeal was allowed, but only to the extent of remitting the matter to the Magistrate with a request that he make the findings of fact which lead to the conclusion stated. Held: For the appellant.‖ [80] The Laws of Australia (Thomson-LBC Online)7 also supports a proposition that the respondent may bear the onus of proof under section 129. I cite part of the annotation which reads: "Compensation is not payable in respect of an injury that is intentionally self-inflicted. Suicide may not be an intentionally self-inflicted injury if the person was mentally ill at the time and therefore lacking intent. The onus is on the employer to prove that the injury was self-inflicted.‖ [81] The reference to the ‗employer‘ obviously reflects the regime in the old Workers Compensation Act of 1916. Under the original regime, liability to compensation was governed by section 9. Each worker, or his dependants in case of death of the worker who was ―injured by accident, whether at the place of employment or on his journey to or from such place or (being in the course of his employment or while -- 16 of 39 -- 17 under his employer's instructions) away from the place of employment‖ was entitled to compensation from the State Accident Insurance Fund. Subsection(3) provided: (3.) West Virginia, c. 10 of 1913, s 28. – No compensation is payable on account of any injury to or death of a worker caused by an intentional self- inflicted injury. (My emphasis) [82] Counsel for QComp submitted: ―Since 1936 we've had two iterations of the legislation, the 1996 Act and the 2003 Act.8 In the process of transforming through those different legislative regimes there has been a seminal change in the philosophy underpinning the legislation. It is not the case that Q-Comp as the respondent has any relevant onus. The authority is the case of Avis v Workcover Queensland. … [2000] QIC 67. … There‘s another decision on point too, Ivey v WorkCover Queensland [1999] QIC 65‖ [83] A reading of the short 10 paragraph decision in the case of Avis v WorkCover Queensland [2000] QIC 67 (7 December 2000); 165 QGIG 788 will quickly and clearly let anyone see that the case had nothing to do with, and said nothing about, any issues concerning onus of proof, whatsoever. Indeed at the third paragraph his Honour President Hall stated ―The only issue is whether the Industrial Magistrate was correct to find that s. 34(4)(a) excluded the illness from the definition of "injury".‖ [84] Counsel for QComp also referred to Berg v Workers Compensation Board of Queensland [1990] Workers Compensation Reports 349. This was a case based on the old legislative regime which existed from 1916 to 1990 under section 9 of the Workers Compensation Act of 1916 (quoted above). In Berg the Industrial Magistrate stated ―The burden of proving a right to Compensation is on the applicant. The standard of proof she has to discharge is on the balance of probabilities‖. No authority was cited by the Industrial Magistrate for the first proposition. The President of the Industrial Court of Qld, Moynihan J, allowed an appeal from the Industrial Magistrate‘s decision and did not consider the question of who bore the onus of proof at all. The issue was simply ―whether the death was caused by an intentional self-inflicted injury.‖ [85] Again, in Qantas Airways Limited v Q-COMP [2006] QIRComm 27 (22 February 2006); 181 QGIG 301 a self insurer appealed to the Qld Industrial Relations Commission against a decision by the Review Unit of the Authority, Q-Comp. The issue was whether anxiety was excluded from the meaning of ‗injury‘ under section 32(5). Commissioner Blades said: ―This proceeding is not an appeal in strictu sensu but a trial of the claim of the injured worker. In normal circumstances, the injured worker bears a burden of proof, on the balance of probabilities that he has brought himself within the definition of "injury" (Labaj v WorkCover Qld (2003) 174 QGIG 370). In Ivey v WorkCover Qld (1999) 162 QGIG 392 Hall P said that s. 34 of the Act (a forerunner to s. 32) states the complete factual situation which must be found to exist before the worker obtains a right under the Act and that onus is borne by the worker. In WorkCover Qld v Anderson (1999) 160 QGIG 175 Williams J held that there was no onus on the appellant, -- 17 of 39 -- 18 WorkCover, at all and that there was no onus on WorkCover to establish that employment was not the major significant factor causing the injury. In the same way, there is no onus on Qantas, the appellant in this case, other than perhaps to put in issue i.e. to raise by way of admissible evidence, those matters upon which it relies to escape liability. The worker is not a party to these proceedings so it is probably not right to say that the worker has any onus of proof but the factual situation must be found to exist as will bring the worker within the provisions of the Act. That factual situation must be on the balance of probabilities.‖ [86] In WorkCover Queensland v Elliot Anderson [1999] QIC 11 (22 February 1999); 160 QGIG 175 the issue before the President of the Qld Industrial Court, Williams J, was whether the worker‘s employment was the major significant factor causing the injury within the definition of ‗injury‘ so as to establish a right to compensation. Williams J stated: ―The phraseology used by the Industrial Magistrate is, at least, misleading and apt to be confusing. There was no onus on the present appellant at all. Whether or not a claimant for compensation establishes a prima facie case, there is no onus on WorkCover to establish that employment was not the major significant factor causing the injury. It seems reasonably clear that the Magistrate approached the assessment of the evidence in an impermissible way. Saying at the very end that she was satisfied on the balance of probabilities that the injury was caused by employment which was the major significant factor causing the injury does not overcome the earlier erroneous statement.‖ [87] A similar issue arose for consideration in Ivey v WorkCover Queensland [1999] QIC 65 (25 November 1999); 162 QGIG 392. President Hall held, in relation to that issue, ―I do not accept the appellant's submission that the burden of proof fell upon the respondent. On a fair reading of s 34 it does not impose a general liability to which s 34(4) "provide[s] for some special grounds of excuse, justification or exculpation depending upon new or additional facts". Section 34 states "the complete factual situation which must be found to exist before anyone obtains a right … under the provision". Compare Vines v. Djordjevitch (1955) 91 CLR 512 at 519. The onus is born by the appellant.‖ [88] Counsel only referred me to the Avis, Ivey and Berg decisions referred to above. [89] Not one of the Queensland cases deals with the onus of proof under section 129 or its predecessors. However, the High Court case cited by President Hall is instructive and binding for present purposes. In Vines v Djordjevitch (1955) 91 CLR 512; [1955] ALR 431; (1955) 29 ALJR 31; BC5500500 at CLR 519 Dixon C.J., McTiernan, Webb, Fullagar and Kitto JJ in a joint judgment held: ―When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions -- 18 of 39 -- 19 or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.‖ [90] It is clear that section 108, read in conjunction with the definition of injury in section 32, is an example of the former, that is, in defining the elements forming the title to the right to compensation. Together those sections (and other sections) embody the principle which the legislature seeks to apply generally. It is also clear that section 129 is an example of the later, that is, in providing an excuse or exculpation from liability to pay compensation or in denying the right to compensation in a particular case by reason of additional or special facts where the injury causing death is intentionally self-inflicted and thereby breaking the chain of causation. In the later case the burden of proof is on the party seeking to rely upon the additional or special matter. [91] In Laing v Fridgemobiles of Australia Ltd [1979] WCR (NSW) 116, Bauer J referred to section 7(3)(c) of the Workers Compensation Act (NSW)9 as a ―defence‖. His Honour said ―It is to be noted, that this section deals with intentionally self-inflicted injuries and does not deal with suicide as such. A factual situation can be envisaged where death occurs as the result of an intentionally self-inflicted injury, through the intervention of a virulent agent such as tetanus, such death being quite unintended. It seems to me that unless the evidence shows that the nature of the act of intentional self-injury was such that the proper conclusion was that no other intention was reasonable except self- destruction, the question of suicide and any presumption which arises from suicide does not arise. … The defence raised by s 7(3) clearly places the onus of proof upon the respondent's defence, namely that the death was the result of the injury which was intentionally self-inflicted: Clark v. Flanagan (1934) W:C.R. 33.‖ -- 19 of 39 -- 20 [92] Finally, for completeness, I should add that the CCH Guidebook to Workers Compensation in Australia, 6th edition (1988), and in the latest 2006 online version, at para [¶ 10-100] states: "The onus of proof rests on the employer (or party alleging self inflicted injury), and would be difficult to discharge in practice." [93] That proposition would seem to be supported by the authorities. [94] Even if ―a seminal change in the philosophy underpinning the legislation‖ has occurred there is no indication in the Act, expressly or by necessary implication, that the legislature intended to displace a long line of authorities on this issue and long established rules of statutory interpretation. [95] Under the original Workers Compensation Act 1916-1988 (Qld), section 13(1) required an application for compensation to be allowed or rejected by the Workers‘ Compensation Board. However, on receipt of an application for compensation the Board, or a party who objected to a ruling by the Board, was able to refer the matter to be heard and determined by an Industrial Magistrate who then took evidence just as I have. Section 13(2) then gave a right of appeal from the decision of the Industrial Magistrate to the Full Bench of the Industrial Court of Queensland. Unless the Industrial Court otherwise ordered that fresh evidence could be taken, the appeal was by way of rehearing based on the evidence before the Industrial Magistrate. Even if ―a seminal change in the philosophy underpinning the legislation‖ has occurred there is no indication in the Act, expressly or by necessary implication, that such a significant change has occurred to the nature of hearings by an Industrial Magistrate that because the hearing is now a hearing de novo the onus must rest on the Appellant for every relevant issue thrown up by the Act. [96] My conclusion is that— A. The Appellant bears the onus of proving a chain of causation leading to her husband‘s death as required by sections 108 and 32 (the elements forming the title to the right to compensation) that is, that— 1. the worker received a personal injury arising out of, or in the course of, employment, 2. the employment was a significant contributing factor to the original injury, 3. the worker developed a consequent personal injury arising out of, or in the course of, employment, 4. death resulted from the consequent injury. B. The Respondent bears the onus of proving any additional or special facts which establish that the self-inflicted injury causing death was intentional. Standard of proof [97] As has been noted above, the standard of proof in this case, whoever bears a relevant onus, is on the balance of probabilities. [98] In Spiratos v Australasian United Steam Navigation Co Ltd (1955) 93 CLR 317; [1955] ALR 668; (1955) 29 ALJR 376 (a seaman‘s compensation case) the High Court at CLR 322-3 held that the party bearing the onus— -- 20 of 39 -- 21 ―…must induce in the tribunal a belief that death did occur by accident— not as a matter of certainty but as a matter of definitely preponderant probability. ―The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality" (per Dixon J. in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336)).‖ When is a self-inflicted injury, or an act of injuring oneself, causing death, not intentional? [99] It would seem from the preceding discussion that because the second use of the word ‘injury‘ in section 129 relates to the act of injuring, then whether the worker had an intention to actually cause death by self-inflicting the injury may be irrelevant for section 129 (see Laing v Fridgemobiles of Australia Ltd (above)). However, it is not necessary to decide that issue in the present case. [100] In Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629; [2000] NSWCA 87 the NSW Court of Appeal at para [38] held: ―If s 14(3) on its proper construction can apply to death by suicide in a case … it is not necessary to decide… . Although the section refers to intentional self-inflicted injury, the deliberate act of suicide may be the product of a will so overborne or influenced by the worker's circumstances that it should not be regarded as an intentional act.‖ [101] In Bird v Australian Iron & Steel Pty Ltd (1979) 53 WCA (NSW) 227 at 230 there was ―such a degree of ―progressive personality disintegration‖ that there was an inability to control suicidal impulses and that “his power of volition was dethroned.” [102] This ‗test‘ of dethronement of volition has been variously expressed. 10 [103] In Smith v Commissioner of Police (No 2) (2000) 20 NSWCCR 27 at para [17] Neilson J said: ―In summary, a suicide is compensable if there is an unbroken chain of causation between the injury and the death. Such a chain is broken if there is an intentional or volitional act of the deceased in taking his own life: it is a novus actus interveniens. It is to be noted that the law requires that volition, will power, be overthrown. … . An act may be intended or volitional but quite illogical, ill reasoned or unreasonable. I am not concerned with the logic of the deceased's act but whether it was wilful and intended, i.e. volitional.‖ (my underlining) [104] Neilson J also referred to cases where the test was similarly put, such as whether the deceased‘s accident ―disabled him from exercising a judgment‖ or ―whether the worker had become mentally deranged to the extent that his mind had become unhinged so as to dethrone his power of volition‖.11 [105] After referring to Holdlen’s case (above) and Smith v Commissioner of Police (No 2) (above), the Deputy President of the Workers Compensation Tribunal, McCusker -- 21 of 39 -- 22 J, in Potter (widow of Kym Potter (deceased)) v The State of South Australia (South Australia Police) [2001] SAWCT 123 (26 October 2001, unreported) held at [24] ―The test is not directed at the irrationality of the suicide. It is directed to the worker‘s perception and whether he can be said to have had a choice given how he saw matters. ―Volitional‖ involves reaching some estimate of the deceased‘s mental state and the hopelessness or otherwise of the situation as he saw it. In the case of depression the worker‘s perception may be so distorted that the next step will not be volitional in any true sense. The ―nothing else for it but to …‖ state of mind. If that perception operates and is secondary to the compensable injury then the chain of causation is not broken.‖ [106] In a Queensland Industrial Magistrates Court decision in Tappenden v Workers Compensation Board of Queensland [1993] Workers Compensation Reports 454 the cause of death was ―asphyxia due to self-inflicted hanging as a result of morbid depression‖. Magistrate Smith at 458, after considering the medical evidence led by the widow which was uncontradicted by other expert evidence, concluded it was ―highly probable that he was one without capacity to make a considered choice …. was one whose actions which gave rise to his ultimate death were not intentional volitional acts on his part.‖ [107] Ultimately, even in South Australia where there is no equivalent of section 129, the test keeps coming back to also considering whether the chain of causation between a compensable injury and death has been broken by a volitional suicidal act. [108] One must take great care however, not to conclude there is a break in the chain of causation merely because the act of injuring oneself was intentional and volitional. The act of suicide may be volitional but it may also be the result of a person‘s work being the cause of a compensable aggravation of a pre-existing depressive illness For example, in Sadlo & Comcare, Re: (2005) 88 ALD 169; [2005] AATA 1006 the AAT held at [36]: ― … we are satisfied that the aggravation of the depression suffered by Mr Sadlo resulted in his death. We have reached this conclusion as we are satisfied that although he voluntarily and intentionally committed suicide and that this was the proximate cause of his death, it did not break the chain of causation between the work-related injury and his death.‖ [109] The AAT concluded the aggravation of the depression was not intentionally self inflicted and that section 14(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cwth) did not exclude an entitlement to compensation in respect of that injury if such an entitlement was otherwise shown to exist. Even though the Tribunal found the suicide was an intentional and voluntary act it did not necessarily mean that the injury did not ―result in‖ the death. [110] While this is not such a case as was before the Tribunal In Sadlo’s case (above), that case is also relevant because the AAT examined the difference in the wording between the NSW and Commonwealth legislation. The AAT referred to Holdlen Pty Ltd v Walsh (above) at [34] to [36] where the NSW Court of Appeal stated an intentional act of suicide may be part of the chain of causation, not necessarily a break in the chain. At [27] to [30] the AAT stated: -- 22 of 39 -- 23 27. We have not been referred to an authority which compels us to find that the intervention of an intentional and voluntary suicide means that an injury cannot result in death within the meaning of subsection 17(1). In deciding not to follow the authorities relied on by Comcare we have taken into account that the intentions of the Commonwealth and New South Wales legislatures in relation to the payment of compensation in the case of death appear to be different. 28. Subsection 14(3) of the Workers Compensation Act 1987 (NSW) provides: “Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury” [emphasis added]. Subsection 14(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) reads: “Compensation is not payable in respect of an injury that is intentionally self-inflicted.” 29. We are of the view that had the Commonwealth Parliament intended to exclude compensation to a dependant of a deceased worker who voluntarily took his or her own life it would have clearly said so in terms similar to the New South Wales legislation. 30. On the basis of the view we have taken of the law, we have to decide as a matter of fact whether the admitted work-related injury (the aggravation of the depressive condition) suffered by Mr Sadlo resulted in his death. In making this decision we do not have to be satisfied that the injury was the proximate cause of his death.‖(my underlining) [111] It is also noteworthy that the current Queensland provision in section 129 is expressed more like the Commonwealth section than the NSW section. However, with great respect, it seems the NSW Court of Appeal in Holdlen’s Case (above), was speaking in the context that death by suicide could be found to have resulted from work-related injury without the need for a specific finding that the worker was insane (which was previously required by the old British decisions). FACTUAL ISSUES [112] It is not in dispute that— 1. Brett Craig was a worker; 2. He suffered an injury to his head, neck and shoulder; 3. Those injuries arose out of, or in the course of, his employment; 4. A claim for compensation by Brett Craig was accepted for those injuries. 5. Brett Craig subsequently caused his own death by hanging himself. 6. Natalie Craig and Samantha Craig were dependants of the deceased. [113] I have to decide whether, on the balance of probabilities, the deceased developed an injury under the Act, such as a psychiatric or psychological condition, as a causal link between the original injury and his death. -- 23 of 39 -- 24 [114] It is not always helpful to keep redefining the test discussed above because each time a variant is introduced it suggests a requirement to find some greater or lesser degree of dethronement or of rational or irrational decision making by the deceased12. However, it has been useful to examine the facts of the cases referred to above and to examine how the various courts and tribunals have applied the test to those facts. [115] With respect, I share with those courts and tribunals the view that there is a poverty of language to describe a state of mind13 and that suicidal behaviour is predictably unpredictable and often impulsive14. The cases have each turned on there own facts. Various factors considered by the cases going to the exercise of free will, intention or volition, have included: whether he had recently exhibited an improvement in his mood before his death15, whether there was evidence of changes to the deceased‘s behaviour and personality,16 whether the deceased exhibited planning for his suicide such as putting his affairs in order17 and writing suicide letters18, that the psychiatric or psychological injury was triggered by the pain attributable to the original workplace injury and disappointment about the handling of the workers compensation claim19, that there had been previous suicide attempts or that the suicide happened in a popular holiday spot at a time when it could have been seen by others20 [116] Medical evidence is not always, or necessarily, conclusive in cases of this nature. I have referred above to Berg v Workers Compensation Board of Queensland [1990] Workers Compensation Reports 349. At 357 His Honour President Moynihan held ―It was unnecessary to establish insanity or, for that matter, to be able to apply any other label to the condition or any other qualification of it… .‖ [117] I note Dr Gassner‘s evidence below that he thought it difficult to put a label on Mr Craig‘s condition in this case. [118] Similarly, in Groos v WorkCover Queensland (2000) 165 QGIG 106 (not a case involving suicide) President Hall stated that the question whether a person had suffered an ‗injury‘ within the meaning of the Workers Compensation Act 1990 ―is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive. If the legislature had wished to confine relief to cases in which a condition answered the criteria of DSM 4, the legislature might have said so.‖ His Honour also held that in a case ―where there is no evidence to the contrary, the existence of the injury may be inferred from the existence of the impairment.‖ That ruling is relevant in this case where it must be established that there was a compensable injury and that the chain of causation was not broken by an intentional, volitional suicidal act. DEPENDANT’S EVIDENCE Natalie Dawn Craig -- 24 of 39 -- 25 [119] Mrs Craig had been together with Mr Craig for 23 years, and married for the last 13 years. [120] Dependency was not seriously contested by QComp. In his submissions, counsel for QComp said: ―I don't concede it, but I'm not going to press it. You know, there's probably sufficient evidence….‖ Suffice it to say at the time of Mr Craig‘s death Mrs Craig was a part-time teacher earning approximately $700 per fortnight. Her daughter was a full-time student. Mrs Craig and her daughter were dependant upon Mr Craig for their living expenses. [121] Mrs Craig described the work-related injury. ―When he arrived home from work he was bleeding because he'd been punched to the side of his face, his lip was split and from … the next day he was unable to move his arm so in the course of his injuries he basically became unable to lift things.‖ [122] Before that incident he was strong and fit. He was six foot tall, muscular and not overweight. In his work as a carpenter at Cunningham Signs he had to lift timber. He had been a professional golfer, but not at the time his death. ―He hadn't played the circuit for years. He used to teach golf, though, and he actually still gave the odd lesson, but not that regularly. Not while he was injured, though. He stopped.‖ [123] Mrs Craig explained how they used to like having barbecues at their place or at various places. They liked to have people over. After the assault they didn't really go anywhere. ―He stayed at home. He was unable to do a lot of the things he used to be able to, like, get out in the garden. Couldn't do that and just the sort of thing … . we had two vehicles. He used to maintain both of them and change the oil filters, the oil, do all the tune-ups and so he couldn't do any of that. We had a pool. Couldn't do that. Samantha and I had to do it or he'd get friends over to do it for him. He just basically sat and couldn't do much … . [124] Mrs Craig also observed Mr Craig become quieter whereas previously he was very conversational, loved having people over was witty and fun to be around. He was described as being very hyperactive. He couldn't sit still for very long. [125] Since the injury entertaining became a rarity and mainly with his mum and dad. [126] As to his mental state Mrs Craig stated Mr Craig became quite withdrawn. ―He also became angry at times and frustrated. He didn't know whether he'd ever be able to work again. His injury because of the type of work he was doing - like, he didn't have an office job so he was a physical worker and he really didn't know what he was going to do.‖ [127] Typically, when she came home from working mornings she would find him sitting. ―I would go to work and he'd be sitting usually just in a - he had a spot he liked to sit because it was comfortable for him and it was in a stool leaning -- 25 of 39 -- 26 up against a high bar and I would be gone from, say, eight in the morning, get home at 12.30 or one and often he'd be still in the same spot. … Just sitting.‖ [128] Mrs Craig explained that after the incident Mr Craig began to drink more beer than before. ―He drank quite often, like, he would drink early in the mornings. … He drank daily. … Two, maybe three cartons a week, occasionally rum. … .‖ [129] He drank Fourex Gold. On her return from work she would have to sit with him and kept him company, sometimes for the rest of the day until he went to bed. She would cook his meals at night but did not know what he did during the day whereas beforehand he would cook on the odd occasion. [130] Mr Craig was then going to bed by 7:30 pm and was not sleeping well. ―He would go to bed early. He'd wake up early. He would wake up - towards the end he'd wake up - I'd wake up and he'd be having some sort of anxiety attacks … sweating and crying and rocking and shaking and getting up and vomiting and I would have to physically hold him to stop him from moving… that happened about three times towards the end of that six- month period. … leading up to this time … when the attacks happened he would say things like, "I'm a failure. You're better off without me.", if I could swear, "I'm a fuckup.", and on New Years Day he said to me out of the blue - there was no problem. He got really sort of quite angry and we had the best New Year's that year and New Year's Day out of the blue he said, "I'm going away because you're better off without me.", and I just went, "Yeah, right. Whatever."‖ [131] During this period between July and January Mrs Craig took Mr Craig to see Dr Gassner once in December. He went out once with a friend who picked him up and normally she would have to drive him around. [132] Mrs Craig described her ordeal on 8 January 2005: ―Okay, he'd organised to go fishing at the Hinze Dam with his uncle and cousin and he was quite excited at the fact because it had been a long time since he'd take the tinny that we had out to the dam which was his favourite spot … mid-morning they left and he was in good spirits, really. He was excited at the fact and I had his aunty at my place because they're from Brisbane so they came down for the day and I also had some of my sisters over and at about … four in the afternoon, it was late afternoon, I got a text message asking me to pick them up at the dam and I thought that was quite strange. I thought obviously something's happened like the truck's broken down or whatever. … and I tried phoning him, but I couldn't get through because the service [indistinct] out there and I sent a text and he didn't get that either so I asked for my sister to come with me because it's about a 20- minute drive … I could see Brett's truck facing up the dirt road. It's like a one-way dirt road and the bonnet was up on the truck and I joked to my sister and said, "Oh, look, he's gone to sleep.", because I thought he was just sitting on the ground leaning up against the truck door and my sister -- 26 of 39 -- 27 said, "That's not Brett.", and I went, "What do you mean it's not Brett? It's Brett.", and [indistinct] - it was his clothes that he had on, but his face was black … as I got closer I could see that his face had changed colour and I thought that - my first words to Sharon, I think, were, "He's burnt." I thought he'd put petrol down the carbie to try and start the truck and it had blown up in his face and he was sitting there because he was burnt so I'd got out of the car and I ran over and that's when I saw what he'd done. He'd hung himself by the truck door … .‖ [133] As to the state of their relationship Mrs Craig stated in cross-examination: ―I know that he loved me. He was thoughtful in a lot of ways, but at times, like any relationship after 23 years, you have your ups and downs. He just adored his daughter absolutely. It was just any normal relationship, I would say.‖ [134] Mrs Craig agreed there had been a separation because of arguing about whether Mr Craig was having an affair which he did not confirm or deny. They were separated for 12 months. It was her idea to leave him at the time. They both moved out. She went to live with her sister and he went and lived with Mrs Craig‘s brother. After attending marriage counselling they resumed cohabitation in about August 2003, some 18 months before his death. [135] Further, in cross-examination Mrs Craig confirmed it had taken several weeks to achieve a proper diagnosis of the original work injury and that Mr Craig had never seen a psychiatrist. It was suggested Mr Craig was organising other works while off work from Cunningham Signs but Mrs Craig was unsure. In any event counsel failed to clarify the question at my invitation. It was vague and confusing because it was not made clear to the witness whether she was being asked if Mr Craig was doing anything physical or otherwise in ―organising‖ other works. Mrs Craig agreed that during this period he remained independent in terms of self-care, bathing, showering and things of that description. [136] In December 2004 she told the Doctor what had been happening at home and her husband tried to play it down. He also did not want to take anti-depressants because he felt it would numb him while he needed to remain vigilant in case of another attack. He felt that way because of his anger and concern, rightly or wrongly, over the fact the police took no action about the assault. [137] It is relevant to note neither Dr Gassner nor Mrs Craig say that Mr Craig refused medication because he felt he did not need it. [138] Mrs Craig stated that Mr Craig had three anxiety attacks at night and that she took him to the Doctor after the first one. She repeated in cross-examination that he spoke irrationally about being a failure, that she would be better off without him and that he could not provide for them. She saw that he was happy and excited he was going on the fateful fishing trip. She did not question what he meant on New Years Day when he said he was going away. She said he was in a good frame of mind the morning of his death before leaving to go fishing. [139] Mrs Craig also confirmed in cross-examination that she went to see Dr Gassner a few days after her husband's death and on that occasion Dr Gassner wrote a medical -- 27 of 39 -- 28 certificate for her which she used to support her application for compensation for a fatal injury. She said she was in no frame of mind to do it herself and her sister did it for her. The Doctor also put her on ant-depressants. [140] Mrs Craig‘s evidence was not contested or contradicted by other evidence. [141] Having assessed her evidence and demeanour against all other evidence I have no reason to doubt her accuracy and reliability as a witness. Samantha Craig [142] Ms Craig is the now 16 year old daughter of the deceased and Mrs Craig. She is a year 11 High School student. [143] Samantha Craig described her relationship with her dad. ―My relationship with my dad was really close because I was an only child. … we always shared the same sort of interests as he brought me up with the things that he liked like car racing and football and stuff like that. He was always into that and we just got along really well. … He was always big on family things like barbecues and we always - if the football was on, something like that, we'd always watch the football together and just always sort of have a laugh. It was never serious. … It was always just laid back, easy, easygoing. … when I was younger I played basketball, but as I got older I played netball and we had a grand final and he wasn't big on netball, but he came to my grand final for netball and cheered me on. … when dad was around we had a barbecue every night. Every night was a barbecue dinner. He cooked toast on the barbecue. When we went out we went always - it wasn't anywhere like a park, never went to Broadbeach, it was always Numinbah Valley or out near Hinze Dam. He is more into all nature sort of things. … And it was always fully organised. He'd bring eskies full of food and he'd do all the heavy lifting, like, carrying things and he always took over.‖ [144] Ms Craig also described the changes she witnessed her father experience. ―He wasn't as motivated. His attitude lacked - like he was lacking confidence and basically anything to do in life. Like, he was always a strong, focused person, and he - he was always - like, fit and he just lacked that. He - he was still - to me and mum he was still the nice, loving person … (barbecues were held) not as much. It was only at home. … And sometimes he'd have to sit down because the stress on his arm, because it was in a sling and he couldn't do everything. … He was always into car racing, V8s. Stuff on telly. … We still - because we had two different levels in the house and we always just would sit down - we always sat down and watched it. It was fine sitting down. … I'd get up and he was always downstairs just sitting downstairs doing nothing. … And I wasn't used to that, because he'd always be out doing something. He's always doing something and then he wasn't doing anything. … (he‘d be sitting) behind the little bar that we had, watching the news or whatever. … (and in the afternoon after school) pretty much the same thing happened (as) when I got up in the morning. …, it went on for a while. He slightly started -- 28 of 39 -- 29 getting better. Like, maybe walking around, but he couldn't walk around for long. Like, he'd always have to sit down at times. … I guess I got - I had more conversations with him when he was - when he had the injury because he wasn't out doing anything. … He'd stay up until - oh, well, sometimes he stayed up. Other times - he was normally an early sleeper – like before the injury, he'd just - because he got up really early in the morning, he'd have dinner and lie on the couch and just fall asleep. But sometimes he just sat up because he couldn't sleep, because his arm was sore. … Getting up in the night and having anxiety attacks and crying. Things I wasn't used to. … It was a few times I saw it. … Him curled up like this with mum - like, her arm around him. Him just crying. I wasn't used to him crying. … He was (talking) … but it was sort of hard to understand what he was saying. … I don't think he understood why it happened to him when he was always so -----just strong. (After the assault) he was different physically and mentally. He just - beforehand he was … just alive. He was lively and he did things all the time and then after – after the injury he just - he lacked - like, he just didn't – he just didn't do much at all. He just sat and he was - like, not lazy, but that's all he could be was lazy because he couldn't do anything. … it was like he was a different person.‖ [145] Under cross-examination Ms Craig stated she could see that not being able to do gardening and other physical activities upset her father ― because he felt hurt inside that we - we had to - he couldn't do anything for us.‖ She stated he placed bats and other similar weapons around the house in every corner after her father‘s assailant had threatened her personally. [146] She agreed he would still follow golf and car racing and try to participate socially, for example at Christmas and with friends calling in after work. With respect to taking medication she said: ―I think I recall mum talking about it and he said no, he didn't want to take them, only because that – that was at the point where he was really bad at home and that's - and he just - like, he was so down, that was the point where he was - he just didn't want to, basically, do anything at that time.‖ [147] Her parents seem to have largely spared her from hearing their arguments but Ms Craig stated ―there was (sic) disagreements, but they always got over it.‖ [148] Ms Craig stated they had ―a normal Christmas, but there was - apart from the day where he sort of looked a bit tired, he just - yeah, you could tell because he couldn't do a lot, obviously.‖ [149] She would also witness anxiety attacks when her father could not sleep at night and went downstairs ―because that's where he spent all the time talking and stuff, just on the couch downstairs.‖ Mum would be there comforting him. She was then asked: ―This was only once?-- Downstairs it was, and then I'd hear him crying in the bedroom, but I never got up because I knew what was going on then. All right?-- I couldn't do anything. -- 29 of 39 -- 30 So you could hear your father crying, but you can't really say what he was crying about, can you?-- No, I can't, but it was obviously to do with his injury, or just he was angry at the fact that he just couldn't do anything anymore. But that's your sense of what he was crying about?-- Yes.‖ William John Powell [150] Bill Powell stated he is Natalie Craig's cousin and was Brett Craig‘s brother-in-law. He had a strong relationship with the Mr Craig over a 20 year period. He said that prior to the July 2004 injury Brett Craig was ―motivated, energetic, strong‖. He was well built and proud of his physique. He was determined and strong willed and ―passionate about things‘. [151] Mr Powell saw the deceased 12 to 15 times after July 2004. [152] He said Brett Craig was initially positive about the situation. ―It was something that knocked him down a bit, but he was quite upbeat about it. Angry at times‖. He described then how Mr Craig‘s attitude to that injury changed over time. Their discussions wouldn't have the energy that they used to. He lost interest in things and went quiet at times. He showed less interest in Powell‘s glass work project. [153] Brett Craig became very frustrated and at his slow progress. He could not use or lift his arm and it ―annoyed him no end‖. [154] Whereas previously they often shared barbeques they became rarer and he lost the joy out of it. ―There was a trailing-off of conversations we used to have. … he lost the edge and passion‖ but he never spoke about ending his life. [155] Mr Craig previously wanted to subdivide some land owned by Powell but he lost interest and made no discussion about his future. He recalled Mr Craig conversing normally with family at Christmas. When he saw Mr Craig he was able to engage in ordinary social interaction. MEDICAL EVIDENCE [156] Dr Bartel‘s report on 18 August 2005 stated: "I note the claimant had a slightly flattened affect, although there were no overt features suggestive of depression. He described no vegetative features of depression such as weight loss, anhedonia or loss of appetite. … I did not feel … that he suffered true clinical depression at the time of examination. It is possible however, that after that time over the ensuing month until his suicide in January 2005 that he could well have become clinically depressed and suffered an adjustment disorder. It is certainly within the realms of possibility given the circumstances presented to me at the time of examination. I felt that he moderately over represented the injury to me. . . -- 30 of 39 -- 31 … On balance I feel that it is possible that he did subsequently develop an adjustment disorder with depressive features after December 2004. Given the circumstances, this is possible, but at the time of examination was not clinically evident.‖ [157] As noted by the Review Officer, Dr Bartel considered it was ―possible‖, on balance, that the deceased developed an adjustment disorder with depressive features after the date of his examination. However Dr Bartel did not consider it was clinically evident at the time. It was also noted that death occurred approximately three weeks after examination by Dr Bartel. [158] Relevantly, however, Dr Bartel also advised that ―at the time of history and examination in December 2004‖ the deceased had expressed disappointment or concern about— the lack of police action over the assault at work and a perception of injustice, not being able to do simple tasks, being off work for near on six months, not having any income for his two dependants except WorkCover payments. [159] The potentially depressive effects of such concerns are not to be underestimated. [160] The deceased‘s GP, Dr Gassner, did give evidence. He came to a similar view. Dr Gassner‘s evidence should not be taken in isolation. There is much he was not privy to. His evidence must be considered in the context of evidence by the deceased‘s widow and daughter and all the other evidence relevant to considering the deceased‘s state of mind. [161] In a report dated 27 April 2005, Dr Gassner, advised WorkCover: "... When I saw him on the 7 December 2004, he stated and thus I did not at this stage formally include that in the certificate I had issued on that date that he had been getting anxious at times with sweats...I also discussed the options of counselling in regards to his anxiety or medications. At that stage he declined active intervention. This was the first occasion at which Mr Craig reported any psychological symptoms to me and thus I did not at this stage formerly include that in the certificate … I did also review him on the 30 December 2004 and no mention was made then of the anxiety. … . As stated when he did see me on that day, I did broach the subject of referral for psychological support and medication, which he declined." [162] Australian and international research has shown, and certainly my own experience from dealing with literally hundreds of defendants in the Drug Court therapeutic program has shown, that it is not unusual for depressed men to decline counselling either because they are too embarrassed about it in terms of their manhood, because many men seem to find it more difficult than women to discuss their emotional -- 31 of 39 -- 32 state, because of concern about what people will think it being a condition not commonly understood, or because people will think they are feigning21. It is not known if any such reason existed here. [163] Subsequently, on 20 January 2005 and after Mr Craig‘s death, Dr Gassner issued a medical certificate for an adjustment disorder with anxious mood when seen on 7 December 2004 that was caused by 'frustration with slow recovery from fractured L scapula'. Dr Gassner advised WorkCover he did not include the anxiety disorder in the medical certificate he issued on 7 December 2004 because Mr Craig had not referred to any psychological symptoms prior to then. However, in a letter to WorkCover dated 21 February 2005, Dr Gassner stated: 'When I saw him for review on the 7 December 2004, he was becoming anxious with associated excessive sweating. He was obviously frustrated by the slow progress of the healing of his left scapular injury. . ." [164] Dr Gassner had examined Mr Craig one week before Dr Bartel‘s examination. On further examination on 30 December 2004 no mention or discussions were held by Dr Gassner with Mr Craig in relation to anxiety symptoms referred to previously on 7 December 2004. [165] Interestingly, the Review officer accepted Dr Gassner's subsequent advice that Mr Craig was suffering from an adjustment disorder with anxious mood on 7 December 2004 but concluded that because the medical certificate was issued after Mr Craig‘s death she was not satisfied that Natalie Craig had proven, on the balance of probabilities, that Mr Craig ―was suffering from a psychological disorder at the time of his death.‖ However, I need to make my own independent assessment of all the evidence. [166] At the hearing Dr Gassner was examined about his contemporaneous medical notes (exhibit 10) and his report to WorkCover dated 18 August 2004 (exhibit 11) and 12 medical certificates he issued between 27 July 2004 and 20 January 2005 (exhibit 12). [167] On 7 December 2004 Dr Gassner noted ―He feels the pain has changed. Now has sharp pain when he elevates the left arm and he told me that he was seeing a personal trainer that he'd been referred to by WorkCover, and I noted when I examined him there was no wasting. He had normal extension of his left arm, but there was definite sudden inhibition on abduction of the arm, and I suggested that he attend a physiotherapist, rather than trainer, to see if he could benefit, and I referred him to a specialist, Dr Kuhnemann, and I also noted there that he was getting anxious, sweaty, and I discussed the issues with him and discussed various management options and offered to refer him for psychological support and he wasn't keen on taking medication and no further action was taken at that stage.‖ [168] With respect to his medical certificate issued on 20 January 2005, wherein he noted "Adjustment disorder with anxious mood when seen on 7/12/2004" Dr Gassner said. -- 32 of 39 -- 33 ―Mrs Craig came to see me after the event and requested a further certificate to enable her to proceed with her Workers' Compensation claim, and I gave her a certificate on the understanding that, you know, this was a tragic sort of event and that he had been there with this anxiety thing and that I could merely mention that to her, if that was going to benefit her. [169] He was asked: ―All right. And so was his condition on the 7th of December 2004, in your opinion, an adjustment disorder with anxious mood?‖ [170] Curiously, Dr Gassner replied: ―He was anxious and, for the record, I understand that for a Q-Comp claim you have to use that terminology to comply with their requirements - their notification.‖ [171] In light of this rider I have to decide if the Doctor merely reworded his finding to suit the terminology understood by WorkCover or whether he went beyond that fraudulently or otherwise. I also must bear in mind the difficulties sometimes encountered when evidence is obtained by telephone. Dr Gassner was difficult to understand on the link for the court participants and it may have been just as difficult for him. [172] The following evidence was then elicited: ―All right. And so how was his anxious mood exhibited to you on the 7th of December 2004?-- Just from his description and that he'd mentioned he'd become sweaty and anxious. He actually must have used those words to me, I'd say. And did you form any view as to how that - how the patient came to be in that state?-- No particular view. Just that this had progressed over a fairly protracted period and I was somewhat puzzled by the slow progress of his condition. All right. So you became aware that the anxiety had been gradually building over the period; is that right?-- It was possible, certainly. Oh, okay. And was it possible that this went back to the original injury?-- I can't really say that, no. Okay. Well, is it possible that the progress made in the original injury - sorry, in respect of the original injury, caused this anxious mood? You know what I mean?-- The circumstances surrounding the injury? I'm talking about the injury itself and the slow progression in rectifying the medical problems, if I could call it that?-- It's difficult to make a direct link from the original injury, but with the progress of time and lack of progress I thought it was not unreasonable to make that assumption. So - because there had been no suggestion of any psychological problems prior-----?-- No. -- 33 of 39 -- 34 -----prior to this incidence in December?-- In December, no. No, I didn't---- - ... Were there any other factors that you were aware of that could have caused this anxiety?-- Not that I was directly aware of, no. And were there any - was there anything said to you by the patient on that day attributing this anxious mood to anything?-- No, not - not that I recall, no.‖ [173] I must also bear in mind the relatively vast amount of medical and non-medical evidence about the deceased which I have now read or heard and which Dr Gassner did not have either at the time of his consultations or when he wrote the final certificate. [174] Dr Gassner was unable to say that ―a psychological or psychiatric problem arose from Mr Craig‘s physical injuries with the scapula‖. He was unable to make ―a specific diagnosis of a particular disorder‖. He said (reminiscent of Moynihan P in Berg’s case, above): ―No, I don't think one could give a specific label to it.‖ [175] Dr Gassner agreed he would have needed to probably investigate a bit more. He agreed that ―From a medical perspective, it's possible for there to be certainly psychological overloads with the physical injuries. He further agreed that ―it's possible for those psychological overloads and psychiatric overloads to overtake the physical injuries … and lead to circumstances such as occurred in this instance… where the patient took his own life.‖ The Doctor said: ―It's possible, but it's unusual. It was totally unexpected.‖ [176] Common experience tells me that if something is unusual or unexpected it is not necessarily improbable. One needs to consider all the available and relevant evidence. [177] Under cross-examination Dr Gassner agreed that on 7 December his focus was really on the physical injury. He also agreed that in WorkCover cases, symptoms of clinical depression would be one of the things he would be looking for, particularly with a protracted injury that was taking a long time to heal. If he had seen such symptoms he would have noted them. [178] However, in terms of the reported anxiousness and sweatiness the Doctor stated he ―felt it was part of his reaction to the injury or to the frustration of the injury‖ … and that he ― … directly linked it to his shoulder injury, or his reaction to the shoulder injury.‖ He agreed however, that as at 7 December 2004 If the issue had been significant, particularly in terms of working capacity he would have recorded that. Furthermore, he did not record any ―manifest symptoms of a type you might expect to see from a patient suffering from an adjustment disorder with anxious mood.‖ Nor was he able to compare Mr Craig‘s mood before and after the injury because he had only seen him twice before the injury. [179] Dr Gassner described the classic symptoms of a person suffering from adjustment disorder with anxious mood.. He said they included an altered state of anxiety with agitated and disturbed behaviour. As a manifestation one might see the person being fidgety, irritable, express their frustrations or become upset easily. He could become -- 34 of 39 -- 35 preoccupied or fixated on one issue or several issues. He stated there is a distinct disruption of their normal day-to-day life and activities. They could become socially withdrawn but not necessarily so. As for daily activities such as showering, grooming and dressing ―it depends on the degree of - or the extent of the depression or mood disorder, and some people can still function normally and if the condition becomes more severe they do withdraw and procrastinate on those matters.‖ He also confirmed a diagnosis would require a persistent state for some time, but was uncertain how long. [180] The Doctor said such people would not usually be able to continue to entertain household visitors but could participate in events such as Christmas and New Year. It is difficult to know to what extent they would withdraw. However, it was possible but unusual to be able to engage in prolonged conversation with friends for a period of several hours. It could depend on the relationship. He later agreed that they could have up and down days. [181] He also stated that some people with depressive illnesses can mask their symptoms. He was also aware of other cases I which suicide after a depressive illness was totally unexpected but it did not happen often. [182] In cross-examination Dr Gassner said when he saw Mr Craig his thoughts appeared to be ordered. He did not on that day appear to be a man who had lost any mental capacity or self-control. He was participating in rehabilitation for his shoulder injury. He had not in an obvious way appeared to be a man who had admitted defeat. [183] Dr Gassner was asked (in relation to the date of death): ―That morning he was in good spirits. What impact does that have on the suggestion that he may have had an adjustment disorder, the fact that he was in good spirits? Engaged in an activity like fishing?‖. He answered: ―That would go against it.‖ He also agreed he ―could not exclude the possibility that there are other factors at play here that caused him to commit suicide.‖ Respondent’s Case [184] The Respondent did not call or submit any evidence. At the start of the hearing, counsel for the Respondent provided the court with originals of what he called the ―jurisdictional documents‖ tendered by the Appellant to which I have referred at the start of this judgment. FINDINGS [185] There are problems in accepting Dr Gassner‘s post mortem diagnosis in the circumstances in which he completed the medical certificate. He was also vague about the symptoms of an adjustment disorder with depressive features. However, medicine is not an exact science. Doctors have been known to change a diagnosis post mortem when additional factors become known from medical and non-medical sources. [186] Here, Dr Gassner‘s uncontradicted evidence could not be taken in isolation. I am certain that I now know more about the deceased‘s personal and family life than Dr Gassner ever did. I also found the evidence by the deceased‘s widow and daughter -- 35 of 39 -- 36 credible, reliable and compelling. I have no doubt, even if I had to rely solely on their evidence, that the deceased was in a clear emotional downward spiral. He suffered night sweats and anxiety, and severe panic attacks, a depressed mood, a degree of lethargy in that he did not do the same types of and regular activities as previously except with a few individuals, and he expressed negative thoughts about his wife being better off without him. He was frustrated by the slow progress of the healing of his left scapular injury. He increased his consumption of alcohol through the day while he sat around at home. He was previously a professional golfer and an active family man and keen worker. There was no evidence of deliberative planning such as writing suicide notes or letters or of previous suicide attempts. Nor was there any suggestion of the deceased having put his affairs in order. His marriage was relatively stable at the time of his death although it had gone through a rough patch when Mr and Mrs Craig separated. However, they had resumed cohabitation with their daughter as a whole family unit some 18 months before he died. He seemed happy on the morning before his death when his relatives came to go fishing with him at Hinze Dam. He took part in Christmas and New Year family activities but not as before. His wife and family were very supportive of him during his unexpected and unexplained slow recovery, yet he still took his own life. I also accept that the deceased had expressed disappointment, concern and even anger about the lack of police action over the assault at work and a perception of injustice, not being able to do simple tasks, being off work for near on six months, not having any income for his two dependants except WorkCover payments. He also did not want to take medication because he felt he had to be alert to protect his family in case the person who attacked him at his workplace came to his family home, yet he still took his own life. [187] Having considered all of the evidence and the law as I have explained it above, I make the following findings, on the balance of probabilities: 1. Natalie Craig was a partial dependant and Samantha Craig was a total dependant of the deceased Brett Craig. 2. The Appellant has satisfied me on the balance of probabilities that a chain of causation existed leading to her husband‘s death as required by sections 108 and 32, that is, that— (a) the worker received a personal injury arising out of, or in the course of, employment, namely a fractured left scapula, (b) the employment was a significant contributing factor to the original injury, 3. The worker developed a consequent injury arising out of, or in the course of, employment, namely an adjustment disorder with depressive features. 4. Even if Dr Gassner‘s diagnosis can not be accepted, his evidence of his dealings with the deceased is not challenged or contradicted (indeed his observations are corroborated by Dr Bartel). Taking that evidence together with the oral evidence of the deceased‘s symptoms and impairments heard during the appeal, as I have summarised it above, I find the worker developed a consequent work related psychological or psychiatric injury. 5. Death resulted from the consequent injury. 6. The Respondent has failed to discharge the onus of proving any additional or special facts which establish that the self-inflicted injury causing death was intentional. 7. Even if I am wrong about who bears the onus of proving the self-inflicted injury causing death was intentional, and even if the respondent had a mere -- 36 of 39 -- 37 evidentiary onus to raise a defence under section 129, I am satisfied by the Appellant on the balance of probabilities that the deceased‘s ability to resist suicidal thoughts (for example, that his wife would be better off without him) was overthrown by an adjustment disorder with depressive features. 8. The chain of causation was not broken by an intentional, volitional suicidal act. ORDERS 1. The appeal is allowed. 2. The review decision made by the Review Officer on 20 September 2005 is set aside. [188] No submissions were received about the type of order I should make if the Appellant were successful. [189] Therefore, having regard to section 55822 of the Act, the parties are at liberty to make further submissions today about the further orders I should make, if any, including, for example— (a) orders under sub s 558(1)(c) and (d) which are ancillary to the setting aside of the Review Decision, and (b) orders for costs under 558(3) of the Act and in accordance with s 11323 of the Regulation. ENDNOTES 1 Under s 107 of the Act, QOTE, for a financial year, is the seasonally adjusted amount of Queensland full time adult persons ordinary time earnings as declared by the Australian Statistician in the statistician‘s report about average weekly earnings published immediately before the start of the financial year. The publication is currently entitled ‗Average Weekly Earnings States and Australia‘. 2 "27. (2) If an injury to an employee is intentionally self-inflicted, the Commonwealth is not liable under the last preceding sub-section to pay compensation in respect of that injury." 3 Section 3 of the Workers Compensation Act 1916 defined injury as meaning ―(without in any wise limiting the operation and scope of Section 9 of this Act) personal injury arising out of or in the course of employment, and includes— (A) a disease which is contracted in the course of the employment. whether at or away from the place of employment, to which the employment was a contributing factor; and (B) the aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration, but does not include those diseases as specified in Section 14B of this Act; loss of hearing caused by the condition known as Industrial Deafness shall be deemed to be personal injury for the purposes of this definition‖. 4 Section 14(3) Workers Compensation Act 1987 (NSW) provided: ―Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self- inflicted injury.‖ Consequently, section 4 did not include death in the definition of injury: ―In this Act "injury": (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and (c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers‘ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.‖ 5 Neilsen J was here referring to the fact that it is no longer considered necessary to prove insanity, a requirement which arose from the fact that suicide used to be a crime, and that suicide was therefore never to be presumed as the cause of death. Se para[2] – [5] of His Honour‘s judgment for a summary of the previous line of authorities. Contrast R v Huntbach; Ex parte Lockley [1944] KB 606 where High Court (UK) held that suicide is never to be presumed as the cause of death. -- 37 of 39 -- 38 6 In the ―gerundial sense‖ means to turn a verb into a noun which describes an action. In English it ends in -ing, e.g. as in ‗injuring‘ or ‗wounding‘ oneself.' 7 At the time this judgment is being written the online annotation at TLA [26.5.72] at the following URL http://tla.thomson.com.au/tla/resultDetailed.jsp?id=26.5.72, reads: Except in South Australia, an injury is not compensable if it is intentionally (or in the Northern Territory deliberately and in Victoria deliberately or wilfully) self-inflicted. Although Western Australia has no comparable provision, the words "personal injury by accident" in the definition of "disability" are generally thought to exclude intentionally self-inflicted injury. The onus of proof rests with the employer. However, the onus of proving that the injury is attributable to the employment rests with the worker, so that even if the evidence is insufficient to establish a deliberately self-inflicted injury, evidence that falls short of establishing that the injury was unintentional may operate to deny the claim, especially if it establishes that the worker is an unreliable witness. Compensation was denied in the case of a worker who brought about his own decapitation after placing his head on a rail used for rolling stock, on the basis that he had taken himself outside the course of his employment. (see the online footnotes for the authorities cited in support, and especially Collins v Byrne [1951] WCR (NSW) 62 on the issue of who bears the onus of proof.) Further, at TLA [26.5.73] http://tla.thomson.com.au/tla/resultDetailed.jsp?order=12600901, reads: Attempts to bring a worker's suicide within the exclusion for intentionally self-inflicted injuries have often been unsuccessful where a worker is found to have been suffering from a mental illness. The mental illness or the injury from which the illness resulted (and not death by suicide) is the relevant injury, and the illness has deprived the worker of the volition necessary to form the intent required by the legislation. There is a presumption against a finding of suicide unless the evidence establishes that the nature of the act of self- inflicted injury was such that the proper conclusion was that no other intention was reasonable except self- destruction. However, where the evidence established that a seafarer who disappeared had been worried about business matters, this ruled out a finding of death by accident. (see the online footnotes for the authorities cited in support) 8 In fact there was a third ―iteration‖ of the legislation with the Workers‘ Compensation Act 1990. 9 Section 7(3)(c) of the Workers Compensation Act (NSW) 1926, in 1979, provided: ―No compensation shall be payable on account of any injury or death of a worker caused by intentional self-inflicted injury.‖ 10 For other cases, not examined in detail in this judgment, where the courts and tribunals also applied the relevant section in terms of whether a major depressive illness or some other injury dethroned, overthrew or destroyed the deceased‘s power of volition and that that injury caused or resulted in the death see also (in chronological order): Church v Dugdale & Adams Ltd (1929) 22 BWCC 444 at 449 per Lord Hanworth MR, Parry v English Steel Corporation Ltd (1930) 32 BWCC 272, Crengle v Lake Brummer Saw Milling Co [1953] NZLR 765, Re: McLaren and Comcare (1992) 16 AAR 205; No. N91/496 AAT No. 8073, Re Innes and Commonwealth of Australia (1979) 1CCD 129, Dwyer v State of South Australia (1979) 46 SAIR 170, Re Ukovic and Australian Telecommunications Commission (1984) 6 ALD, Muscat v NSW Harness Racing Club Ltd [1994] NSWCC 36; (1995) 11 NSWCCR 1, and SA Health Commission v McArdle & Anor (SCSA Full Court, SCGRG-97-1309; S6685, 26 May 1998 unreported). 11 See Church v Dugdale & Adams Ltd (1929) 22 BWCC 444 at 449 per Lord Hanworth MR. 12 For example, with respect, see Lavis & Pfeifer on behalf of Felstead (infant) v WorkCover & Allianz Australia (V and P De Vizio Pty Ltd) [2001] SAWCT 120 (16 October 2001, unreported) where at [59] the Deputy President stated: ―… if it is established on the evidence, in a particular case, that a psychiatric illness overcomes a person's reasoning ability and suicide, although a deliberate act, results, that suicide will be regarded as part of the complex of the illness; it will not be regarded as an act of volition breaking the chain of causation between the injury and the death. See also Re: Wild & Australian Telecommunications Commission (1986) 9 ALN N257; (No. Q84/29; AATA No. 2614, unreported) where the AAT concluded ―that the applicant committed suicide as a result of his psychiatric condition and he was therefore not able to choose whether he would or would not continue to live or whether he would or would not commit suicide. Although his suicide appeared to be planned, in our view such planning did not indicate control and sanity and we accept the medical evidence that the suicide occurred as a result of his psychiatric disease.‖ 13 For example note the observations by the Deputy President of the Workers Compensation Appeal Tribunal in McArdle SJ & McArdle SJ as Guardian of Kaitlin McArdle v South Australian Health Commission [1997] SAWCAT 66 (22 August 1997, unreported). 14 Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342. 15 Simeon Wines t/as Buronga Hill Winery v Bobos (above). 16 WorkCover Queensland v David Cook [2003] QIC 147 (15 August 2003); 173 QGIG 1416. 17 Simeon Wines t/as Buronga Hill Winery v Bobos (above). 18 Sadlo & Comcare, Re: (2005) 88 ALD 169; [2005] AATA 1006. -- 38 of 39 -- 39 19 WorkCover Queensland v David Cook [2003] QIC 147 (15 August 2003); 173 QGIG 1416. 20 Ukovic & Australian Telecommunications Commission, Re: (1984) 6 ALN N129; (No. N83/46, AATA, unreported). 21 For example, see ―Depression in Men‖ Fact Sheet No 12, www.beyoundblue.org.au, pp 1-2: ―Depression affects both men and women, but quite often what they experience and how they respond is different. Men are more likely than women to recognise and describe the physical symptoms of depression, such as feeling tired or losing weight. They may also acknowledge feeling irritable or angry, rather than saying they feel low. Because of this, depression in men is often not picked up by themselves or by others – including doctors. If depression is not detected, it can‘t be treated and then it has the potential to become severe and disabling. Depression is a known high risk factor for suicide. From 1998 to 2002, the suicide rate in Australia was four times higher in men than women. … Studies show that men are at greater risk of their depression going unrecognised and untreated when compared to women. This is thought to relate to several factors. Men generally tend to put off getting help for health problems, as they may think they are supposed to be tough, self-reliant, manage pain and take charge of situations. This can make it hard for men to acknowledge they have a health problem, especially a mental health problem. It is also very common for men in particular, to manage their symptoms by using alcohol and other drugs which make the symptoms worse.‖ 22 Section 558 of the Act provides: 558 Powers of appeal body (1) In deciding an appeal, the appeal body may— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision; or (d) set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate. (2) If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer. (3) Costs of the hearing are in the appeal body‘s discretion, except to the extent provided under a regulation. 23 The Workers‘ Compensation and Rehabilitation Regulation 2003, section 113 provides: 113 Costs—proceeding before industrial magistrate or industrial commission (1) The costs of a proceeding before an industrial magistrate or the industrial commission are in the discretion of the magistrate or commission. (2) However, if the magistrate or commission allows costs— (a) for costs in relation to counsel‘s or solicitor‘s fees— (i) the costs are to be under the Uniform Civil Procedure Rules 1999, schedule 3, scale E;54 or (ii) if, because of— (A) the work involved; or (B) the importance, difficulty or complexity of the matter to which the proceedings relate; the industrial magistrate or the industrial commission considers the amount of costs provided for under subparagraph (i) are inadequate remuneration, the magistrate or commission may allow costs (in total or in relation to any item) in an amount up to 1.5 times the amount provided for under subparagraph (i) (in total or in relation to that item); and (b) for costs in relation to witnesses‘ fees and expenses—the costs are to be under the Uniform Civil Procedure (Fees) Regulation 1999, part 4;55 and (c) for costs in relation to bailiff‘s fees—the costs are to be under the Uniform Civil Procedure (Fees) Regulation 1999, schedule 2, part 2.56 (3) Subsection (4) applies if— (a) the Authority or an insurer is required to pay costs in a hearing in relation to a witness who is a doctor or otherwise is of a professional description; and (b) the amount of fees and expenses payable in relation to the witness by the party that called the witness is more than the amount of costs allowed by the industrial magistrate or the industrial commission. (4) The Authority or the insurer may, on the application of the party that called the witness, pay an additional amount on account of the costs that the Authority or the insurer accepts as reasonable, having regard to the subject matter of the hearing. -- 39 of 39 --