Berg v Workers' Compensation Board of Queensland [1990] ICQ 13 (1990) 136 QGIG 2

2 QUEENSLAND GOVERNMENT INDUS TR IAL GAZET TE [5 January, 1991 QUEENSLAND INDUSTRIAL COURT INDUST RIAL RELATIONS ACT 1990 Workers' Compensation Act 1916 - 1988 s. 13(2) - appeal from decision of [ndustrial Magistrate Adrian Berg (Deceased) AN D Workers' Compensation Board of Queensland (No. C33 of 1990) JUSTICE MOYNIHAN, PRESIDENT 29 November 1990 Appeal - Workers' Compensation - Evidence - Medical Treat- ment - Cause of Injury - Workers' Compensation Act, s. 9( 3} - Suicide of Worker Nol an ··intentional Self-Inflicted Injury" - Appeal Upheld. REPORT ON JUDGMENT In gi ving his Judgment from the Bench on 29 November 199 0, the President said:- "There is, in lhis case, little occasion to doubt that the worker by reason of his panicular personality was 10 a degree predisposed to react adversely to pressures in situations in which he felt unable 10 maintain complete control. The evidence is, again, unequivocal that he began to respond 10 work pressures from about 198 7 by increasingly manifesting indicia of depression. There is, again, little occasion to doubt that the employment was a contributing factor to the development of the c-0ndit ion. Ulti- mately, the man took his own life. I am of the view that th.i s was an inj ury in the sense that his employment was at the very least a contributing factor. The question which then remains is whether the death was caused by an inten tional self-inflicted injury. The decision be low reflects a co nclusion that it was, but in my view that is, in the light of 1he evidence, as I would apprehend it, an unsustainable conclusion. Dr Apel, an expen psycb.iatrist who gave evidence, concluded that the man suffered a depressive illness which was responsible for h is suici de . This was due to psychological disorder. Th e depressive illness prevented the man from forming an intention in the sense that he was, as I understand Dr Apel's evidence, completely incapable of resisting doing the acts which led to h is death once he had determined on the path that ended as it did. It is not a question of, it seems to me, rejecting or accepting D, Apel's evidence as to acute medical depression or mental condition in the circumstances of the case. The evidence was reallv all one way. It is true that it may be that the evidence did not sustain a conclusion that. the man was, for example. insane in whatever sense t hat word might be used, and the Magistrate was right in that conclusion. But in embarking funher on that consideration it seems to me he may have become misled. The question which mattered in the end was whether it had been established that the death was caused by an intentional self-inflicted injury. The evi- dence, as I say, seems to me to establish that the man's d ea th was not as a result of an intentiona l activity in any relevant sense. It was unnecessary to establish insanity or for 1ha1 matter to be able to app ly any other label to the condition or any oth er qualification of it. Simply, as Dr Apel concluded, the man's response to th e situation in which he perceived himself to be overwhelmed any capacity on his part to resist the imperative of putting an end to his l ife as the means of resolving his perceived difficulties. I would therefore uphold 1he appeal concluding that injurv had been established but that it was not an intentional sell-infi ie ted injury in the sense in which that term is used in 1he relevant legislation. I order that the respondent pay the appellant's costs and the costs below.". Dated this twenty-ninth day of No vember, 1990. By the Coun , [L.S. ] M.J. CALLEN, Indusuial Registrar. • 5 January, I 99 l ] QU EENSLAND GOVERNMENT INDUSTRIAL GAZETTE Ap pearances:- Mr A. Warnick (instructed by Me ssrs A. Taylor), for the Appellant, Mrs P.M. Be rg. Mr K. Bo ulto,n (instructed by the Crown Solicitor), for the Respond- en t, Workers Compensation Board of Queensland. Operative Date: N/ A !udgment - A. Be rg (deceased) v. Workers' Com pensation Board 3 -- 1 of 1 --