Clark v NZI Life Ltd [1990] QSC 217 [1991] 2 Qd R 11

10 20 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE THOMAS BRISBANE, 6 JULY 1990 No. 2622 of 1987 -----·----- .. ---- ..... REVISED CGPiES -ISSUED Court fo;pcrting Bureau Date, 19 / 7 /90 1 ' • • • -----~·- pep .... .- -~!; (Copyright in this transcript is vested in 10 the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: GERALDINE ALICE CLARK -and- MATTHEW GERALD DALY and MARCELLE KRYSTINA HELENE DALY both infants by their next friend GERALDINE 1st Plaintiff ALICE CLARK 2nd Plaintiffs -and- 20 MICHAEL FRANCIS DALY 3rd Plaintiff 30 -and- NELLIE FLORENCE McENCROE (as administratrix) of the Estate of SHAYNE PATRICK McENCROE (deceased. ) -and- NZI LIFE LIMITED JUDGMENT 4th Plaintiff Defendant HIS HONOUR: In this matter there will be judgment for the defendant against the plaintiffs. As I understand . +- l - there was an application for costs and the order for costs should follow the event. Unless there's any submission to the contrary, I shall order that-. the defendant's judgrnent be against the plaintiffs with costs to be taxed. I publish my reasons. . , Qld. 1 40 50 60 -- 1 of 18 -- \ IN THE SUPREME COURT OF QUEENSLAND No. 2622 of 1987 Before Mr. Justice Thomas BETWEEN: GERALDINE ALICE CLARK First Plaintiff AND: MATTHEW GERALD DALY and MARCELLE KRYSTINA HELENE DALY both infants by their next friend GERALDINE ALICE CLARK Second Plaintiffs AND: MICHAEL FRANCIS DALY Third Plaintiff AND: NELLIE FLORENCE McENCROE (as Administratrix of the Estate of SHAYNE PATRICK McENCROE, (deceased) Fourth Plaintiff NZI LIFE LIMITED Defendant JUDGMENT - THOMAS J. Delivered the 6th day of July, 1990. CATCHWORDS: Insurance - life policy - death by gunshot - whether suicide or accident - onus of proof upon insurer - circumstantial evidence - whether any "presumption" against suicide - standard of proof - whether Briginshaw test applies. Counsel: Solicitors: Hearing dates: K.D. Dorney for the Plaintiff R. Perry for the Defendant Dillons for the Plaintiff Seymour Nulty for the Defendant 19th, 20th and 21st June, 1990 -- 2 of 18 -- IN THE SUPREME COURT OF QUEENSLAND No. 2622 of 1987 BETWEEN: AND: AND: AND: AND: GERALDINE ALICE CLARK First Plaintiff MATTHEW GERALD DALY and MARCELLE KRYSTINA HELENE DALY both infants by their next friend GERALDINE ALICE CLARK Second Plaintiffs MICHAEL FRANCIS DALY Third Plaintiff NELLIE FLORENCE McENCROE (as Administratrix of the Estate of SHAYNE PATRICK McENCROE, (deceased) Fourth Plaintiff NZI LIFE LIMITED Defendant JUDGMENT - THOMAS J. Delivered the 6th day of July, 1990. This is an action by the administratrix of the estate of Shayne Patrick McEncroe against the NZI Life Limited for a declaration of entitlement to $200,000.00 under an insurance policy. Mr. McEncroe applied for a life policy in July 1985, and one was issued by the company on 10th October 1985, with a commencing date 1st August, 1985. The benefit for which the policy provided was "$200,000.00 to be paid on the death of the life assured". -- 3 of 18 -- On 25th November, 2 1985 a bullet passed through Mr. McEncroe's heart and he died very soon afterwards. He was alone in a bedroom when the incident happened. Clause 2 of the general conditions provides that the policy will become void "if the life assured dies by his ... own hands within 13 calendar months from the date of commencement of assurance II The only issue of any substance in the present case is whether Mr. McEncroe died by his own hands within the meaning of the policy. During the proceedings I ruled that the above condition is an exception to the insurer's promise to pay, and that the onus of proving that it applies lies upon the insurance company. Mr. McEncroe was a young man, only 23 years old. In May 1985 he met Mrs. Geraldine Clarke at a motor cycle race meeting and in July 1985 he commenced a defacto relationship with her at her home at 305 Boston Road, Belmont. The property comprises 2 or 3 acres. Her two sons by an earlier union, Michael Daly and Matthew Daly, then aged respectively 16 and 13 years, were also part of the household. The boys found it easy to relate to Mr. McEncroe and it seems clear that they developed quite an admiration for him. He was a good motor cycle mechanic and they shared his interest in motor cycle racing. Some problems still existed between Mrs. Clarke and her former husband Danny Clarke who apparently harassed her and Mr. McEncroe with telephone calls to the home and to his work place, apparently with threats such as "I will get all of you" and other disturbing statements. -- 4 of 18 -- 3 The rifle was a .22 calibre auto-load weapon. Its barrel was relatively short, and the weapon is described as a "carbine" type. It was owned by Michael since he was ten years old. When the family moved to the Belmont house in about 1983 he brought the weapon and some ammunition with him. The arnrnuni tion was kept in a cupboard in the lounge, and the rifle was at some stage ( some months before Mr. McEncroe I s arrival) put under his mother I s bed. This happened after "a scare" from an unidentified intruder. It was loaded, apparently upon the theory that if she really needed to use it she would not have time to load it first. Mr. McEncroe was a member of the household for about five months until his death on 25th November, 1985. He must have known of the place where the rifle was kept and also of the available ammunition, because there was evidence that he used the rifle. The particular occasion mentioned involved the despatching of a duck which had been mauled by a dog. None of the other occupants of the household suggested that they used or interfered with the rifle thereafter, so it is reasonable to infer that Mr. McEncroe had been the last person to use it. At material times Mr. McEncroe was the proprietor of a small business called High Performance Motor Cycle Tuning, at Veronica Street, Capalaba. Unfortunately the business was failing and creditors were pressing. The motor cycle racing season (which was the principal source of his work) had come to an end, and there was no prospect of its resuming until late January or early February of the following year. On the morning in question (a Monday) Mr. McEncroe and Michael went to his workshop at Capalaba. There was no work. -- 5 of 18 -- 4 Michael gave evidence that "we were still waiting for other work to come in. So we went back home for coffee." In the front yard at the Belmont property, somewhere near the front gate, there was an old vehicle which Mr. Clarke had left behind, which Mrs. Clarke describes as a "wreck" that he would not remove. When Mr. McEncroe and Michael returned to Belmont that morning McEncroe asked Michael to go down to the vehicle to see if there were any "notes" in it. He told Michael that he thought that Geraldine had been seeing Danny again. Michael tried to reassure him with words to the effect "don't be stupid, she wouldn't be seeing him again". However he persisted and Michael and Matthew went to the front of the property and inspected the vehicle. They returned to the house to report that there were no notes. The boys commenced watching television while McEncroe was in the bedroom. At one stage one of the boys saw him using the telephone in the bedroom. He had removed his boots, and was sitting with his feet up on the bed. Later, whilst watching television Matthew heard McEncroe go to the kitchen, open the cupboard and refrigerator, and briefly visit the t.v. room. Sometime later the boys heard a loud bang and immediately ran into the bedroom. McEncroe was lying on his back across the bed, his legs dangling over the side, the gun was lying on the floor nearby. He said words to the effect "I have shot myself. Michael please help me" two or three times. An ambulance was summoned and he was taken to hospital before the Police arrived. The entry wound was near the centre of the chest slightly above the nipple line. The exit wound was through the back slightly to the left of centre and a little lower down the body. -- 6 of 18 -- 5 The bullet passed through the heart. The trajectory of the bullet, so far as the body is concerned, was in a slightly downward direction. It may be inferred that the upper part of his body was to some extent in an upside down position at the relevant time because the bullet continued on into the opposite wall in an upward direction entering that wall two metres above floor level. The evidence suggests that there was no deflection of the path of the bullet by contact with bone or any other object that might cause deflection, and that at all material times its path was the same upwards direction of about 45 degrees from the horizontal. The hypothesis that best meets the objective facts is that at the moment of discharge Mr. McEncroe was sitting or crouching on the side of the bed hunched over the barrel, with the butt of the rifle on the floor. The barrel must have been pointing at about the centre of his chest at an angle of about 45 degrees. A pressure of at least 2.3 kilograms had to be applied to the trigger for the rifle to discharge. There was one and only one bullet in the rifle, namely in the breach, and the rifle was at the material time in the firing position with the safety catch off. At that time Mr. McEncroe had two other live bullets on his person, presumably in a pocket. These were later recovered amongst his effects at the hospital. Mr. McEncroe had given no indication to Geraldine Clarke or to Michael or Matthew of discontent, let alone suicidal feelings. The event was a terrible shock to each of them and that even now they cannot bring themselves to believe that Shayne McEncroe knowingly took his own life. I may say that I am satisfied that their evidence was given with honesty and I am prepared to accept -- 7 of 18 -- 6 it. It is probably not uncommon for those close to the deceased to find it impossible to believe that he or she would take his or her own life, even when the evidence is overwhelming (compare Re Davis deceased (1968) Q.B. 72). But I must decide the case from the viewpoint and state of mind of the deceased, and this is by no means confined to the expectations or knowledge of those with whom he lived. Considerable evidence was called in relation to the conduct of the deceased's business during the five months of its existence. It reveals a very depressing picture. Although he was a good mechanic he apparently lacked business expertise, and the level of income simply was not sufficient to meet commitments. An accounting analysis reveals a net loss of about $4,897.00 during the relevant period, and this on the whole seems to err on the conservative side. Whilst he would not of been aware of the precise accounting position, it must have been obvious to him that his business could not meet his needs or contribute to the needs of the family of which he was endeavouring to be a part. He was unable to meet the rent of his business premises, he had been sued, a number of his cheques had been refused payment, he had received a threat of bankruptcy proceedings and was under increasing pressure from creditors. He could not even meet the small claims of the order of $30.00. He had progressively increased his liability to the bank, having recently taken a $10,000.00 loan which had to be met by further monthly payments of $359. 00. This loan was guaranteed by a friend. There was little prospect of any business capable of producing income over the next two or three months. -- 8 of 18 -- 7 He had however received some good news during the previous weekend. He had for some time been interested in converting motor cycles with 125 cc engines in to 100 cc units which would be eligible to race in the 1 00 cc class. Matthew reported to him that at the Moree meeting of 23-24 November his bike had "jumped the canyon" and had won the 1 0 0 cc class. A number of people had expressed interest in the model. There was a prospect that if he could make and sell enough of these adapted models good profits could be made. Unfortunately he was fully aware that his project of reboring these engines and making money in this way was in jeopardy because of the absence of cash flow. He had agreed with Mr. Rice (a friendly creditor) that this project would have to be shelved until he had met his creditors. He had not shared his financial problems with Mrs. Clarke, and indeed had tended to play them down. She apparently was possessed of assets of some value, but he did not seem able to disclose the extent of his financial failure to her. Similarly, he did not share his concern at the possibility of Clarke corning back into her life. The post-mortem report shows that he had a blood alcohol level of .10 at the relevant time, and the evidence would suggest that upon his corning home on the fatal occasion he had taken a significant quantity of rum. He was not given to excessive drinking, and such an intake at this hour was unusual. What then are the proper inferences that should be drawn? In particular does the evidence show that he died by his own hands? It is firstly desirable to set out what needs to be shown in order to reach such a finding. -- 9 of 18 -- 8 Counsel for the insurance company submitted that it was not necessary to establish that the deceased intended to kill himself, but simply that he engaged in an intentional act which had, This as a natural and probable consequence of it, his death. submission, I think, proceeds from an unwarranted introduction of principles relevant to the question of "accidental injury". Reliance was placed upon National and General Insurance Co. Limited v. Chick (1984) 2 N.S.W.L.R. 87 and to Professor Sutton's discussion of accident policies at p. 406 of Insurance Law in Australia and New Zealand. I do not think that Chick's case, or the discussion therein, bears directly upon the present problem. I am concerned with a specific exception, the issue being whether the insured died by his own hands. The ordinary understanding of those words is the ending of a life by an intentional act to achieve that end. I am unable to draw any valid distinction between those words and the common notion of suicide. Acts of self destruction are in common language "described by the word 'suicide' , provided it be the intentional act of a party knowing the probable consequence of what he is about". (per Rolfe Bin Clift v. Schwabe (1846) 3 C.B. 437, 464; 136 E.R. 175. I do not think that the relevant words have any wider connotation than this, and may say that I have found no statement of the common comprehension of suicide more satisfactory that Baron Rolfe's expression above. I reject the defendant's wider submission. Both parties agree that carelessly playing with the rifle without intention to harm himself would not be enough. There may be borderline cases where a person loses the will to live and -- 10 of 18 -- 9 takes a risk not caring whether he lives or dies. However the evidence in the present case does not call for a resolution of this kind. Although intermediate explanations are theoretically possible counsel agree that the only realistic alternatives are death by accident while meddling with the gun, or by suicide. Counsel for the defendant insurer submitted that the standard of satisfaction required for proof of this issue was upon a simple balance of probability. This is of course a civil claim and proof will be according to the civil standard which is usually described as upon the balance of probabilities. (Rejfek v. McElroy (1965) 112 C.L.R. 517). It has been held expressly in Canada in the context of claims under insurance policies, that determination of an issue such as death by suicide is upon the balance of probabilities (Husak v. Imperial Life Assurance Co. of Canada (1969) 9 D.L.R. (3d) 602, 608; Hanes v. Wawanesa Mutual Insurance Co. (1963) 36 D.L.R. (2v) 718, 736). However the question arises whether such a finding should be made upon a mere balance of probability or whether some greater degree of satisfaction should be required along the lines recognised as appropriate in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336. In that case Dixon J. observed that at common law, except upon criminal issues, whilst it is enough "that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal" there are different degrees of reasonable satisfaction. His Honour went on to observe: "But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences -- 11 of 18 -- 10 flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." (p. 362) Suicide is no longer a crime. As an offence it was removed from the code in 1979. Aiding or procuring it remains an offence, but good reason can be seen why the criminal law retains an interest in activity of that kind. In 1945 the Commonwealth legislated against the so called public policy of Beresford's case (1938) A.C. 586 which precluded recovery under insurance policies when the death resulted from suicide. How grave then is the allegation that someone has made away with himself? It carries nothing like the odium that it formally did, although it remains an unpleasant allegation not entirely free from stigma relating to the deceased and his family. At the same time the present litigation may be categorised simply as a claim for money. Applying Dixon J. 's words above in the context of the present civil litigation I can say that the particular finding is not one to be made lightly, but neither is it one of such inherent unlikelihood or gravity as to bring it toward the top of the range of what it is sometimes called the Briginshaw test. I do not think it profitable to try to be more precise about the necessary level of satisfaction. I do not think that such an issue ought to be decided according to any "presumption" against suicide, although it is true that a number of earlier decisions speak of shifting presumptions on such issues. (McDonald v. Refuge Assurance Co. Limited (1890) 17 R. 955, 957; Mutual Life Insurance Co. of New -- 12 of 18 -- 11 York v. Moss (1906) 4 C.L.R. 311). In the latter case the head note refers to "the presumption that a man in a sane state of mind will not commit suicide", but nothing in the judgments expressly approves the existence of such a presumption. It is true that such a presumption was referred to in the judgments appealed from and that at p. 320 Griffith C.J. may be thought to have agreed with a passage from Rooth J. 's judgment which contains a number of propositions including a reference to such a presumption. I do not pause to discuss this matter further, because the language of presumption and counter-presumption has been largely supplanted by the language of proper inference upon the whole of the evidence. In many of the cases the "presumption" was a shorthand way of putting to a jury the result that would follow upon limited evidence if that was all the jury accepted, and in others as a convenient way of expressing the incidence of the relevant burden of proof (cf. Cross on Evidence 3rd Aust. Ed. para. 4. 17; New York Life Insurance Co. v. Gamer 303 U.S. 161 (1937) at p. 171). Reference was made to the following passage in MacGillivray and Parkington on Insurance Law 8th ed. para. 1848, dealing with cases where there is circumstantial proof of violent injury. "In such cases the law presumes that the violence was accidental rather than that it was intentionally self- inflicted and, in the absence of other evidence, there is proof of injury by violent and accidental means. The reason for this presumption has been said to be that the law will not assume that the insuredcommitted a crime, but it is submitted that thepresumption should still apply even though suicide is no longer a crime, since there is inevitably a certainmoral or social stigma that attaches to a person who commits suicide. If, however, the facts proved point to suicide as the only reasonable conclusion, the fact that there is some possible explanation consistent -- 13 of 18 -- 12 with accidental death will not justify a finding of accident." The references to a legal presumption need to be read with circumspection. It is true that where the evidence shows violent death without anything else, a Judge would as a matter of law hold that there was no evidence of suicide. This is all that is meant by the so called legal presumption. There is no general presumption against suicide. Suicide just happens to be a special kind of death and it requires some evidence over and above the fact of violent death to support a finding. I would repudiate any notion that the law recognises any presumption of fact that violence and its consequences are to be taken as accidental rather than as self-inflicted. As the Court observed in Gamer's case (above) "the presumption is not evidence and may not be given weight as evidence." Similarly, the last sentence in the passage from MacGillivray somewhat overstates the difficulty in reaching a finding of suicide in suggesting that it would need to be the "only reasonable conclusion". Two American cases, Williams v. U.S. Mutual Accident Association, 133 N.Y. 366 (1892); and New York Life Insurance Co. v. Gamer, 303 U.S. 161 (1937), are cited in support of the proposition, but they do not support the "only reasonable conclusion" test. On the contrary the opinion of the Court was that - "In determining whether by the greater weight of evidence it has been established that the death of the insured was accidental, the jury is required to consider all admitted and proved facts and circumstances upon which the determination of that issue depends and, in reaching its decision, should take into account the probabilities found from the evidence to attend the claims of the respective parties." (p. 172) -- 14 of 18 -- 13 Once competing inferences are open there are no preconceptions or presumptions. The matter is at large. This has always been so. It is well illustrated by Channell B.'s charge to the jury in Stormont v. The Waterloo Life and Casualty Assurance Company (1858) 1 F. & F. 22, 23; 175 E.R. at 607:- "The defendants were entitled to begin, because the burden of proof is upon them. They must prove that the deceased destroyed himself. The question is now for you, on the whole evidence, whether he threw himself out of the window voluntarily, or fell out of it involuntarily, through confusion of the senses or giddiness. The defendants plead that it was a voluntary act. Did he know that he was throwing himself out?" The correct approach, I think, is to recognise that in a claim such as the present: (a) The onus of proving death lies on the plaintiff; (b) The onus of proving that the death was by the insured's own hands lies on the defendant insurer; (c) That latter issue is sufficiently serious to attract the Briginshaw test, but it is not to be regarded as requiring a degree of satisfaction at the top end of the range. Where then does the present case stand? Counsel for the plaintiff submitted that whilst it was possible that McEncroe had committed suicide, there was an equal competing hypothesis that the rifle had discharged by accident. The hypothesis was that he had unloaded it, this being consistent with his possession of some bullets, but that obviously one bullet remained in the breach. It is possible that he lost control of the rifle while handling it, that i~ fell to the floor and that the trigger was activated by his -- 15 of 18 -- 14 grabbing for it as it fell; or that it was activated as the rifle rebounded from the floor whilst his thumb or finger latter remained firm or continued to move downwards . This possibility was demonstrated by Mr. Kanowski. Whilst conceding that McEncroe obviously had serious worries and concerns Counsel submitted that his life had not come to a decisive point of despair, and that his outward conduct had been confident and normal. He apparently had a good relationship with those in his household and objectively had every reason to live. There was no suicide note, no apparent despair or search for sympathy. His adapted motor cycle had proved successful. His finances were disorganised but the bills were not massive. He had plans including the hire of some plant which he owned or to which he had access. In short, the submission is that he was not apparently a candidate for suicide, and his last words do not easily reconcile with those of a man who wanted to die. On the other hand Counsel for the defendant referred to the physical data and the unlikelihood of the theory of a dropped rifle. The rifle discharged at an angle of about 45 degrees from the floor contemporaneously with McEncroe's body being in a hunched position over it at the side of the bed. I accept that this is the only realistic finding that is consistent with the path of the bullet and the position of the body afterwards. He had obviously obtained bullets either from the magazine or the cupboard and he had other live rounds on his person. He was consciously doing something in relation to live ammunition. It is unrealistic to suppose that he did not know that a bullet was in the chamber. The demonstration of the possible -- 16 of 18 -- 15 "accident" by Mr. Kanowski, relied on by the plaintiff, revealed a substantially vertical drop of the rifle, and it is difficult to apply it to the angles revealed by the objective data. McEncroe was a well co-ordinated, mechanically trained man who was good with his hands. Whilst this does not rule out accident, it runs counter to the possibility that the event was caused through mechanical ignorance or incoordination. The hunched position in which it seems his body was when the bullet was discharged reveals probably the most comfortable, controlled and likely suicide position for a person who had decided to shoot himself through the heart. In short the physical evidence renders unintended discharge of the rifle highly unlikely. When one further takes into account the evidence of financial problems, his unjustified fears that very morning of losing his de facto wife to her former husband, his dismal economic prospects for the next several months, and the deferment of his hope in relation to his motor cycle project, the obvious inference from the physical circumstances is markedly strengthened. I cannot and do not pretend to rule out the possibility that an unfortunate accident befell Mr. McEncroe whilst he was alone in the bedroom on the morning in question. But where (as here) there is a natural probable and obvious explanation that satisfies the known facts, I think it would be perverse to reject it on the basis that there is an outside chance that something else could have happened. I am satisfied on the evidence that the deceased died by his own hands. Accordingly the insurer has made out the -- 17 of 18 -- 16 exception in the policy, and the benefit is not payable for the benefit of the deceased's estate. There will be judgment for the defendant against the plaintiffs with costs to be taxed. -- 18 of 18 --