Author: Amelia Touma   
Judgment Date: 27 June 2016
Citation: Gallagher v Cerno Pty Ltd [2016] NSWWCC 155
Jurisdiction: Workers Compensation Commission of New South Wales[1]
Principles
  • Workers’ compensation is payable if:
    • A worker sustained an injury arising out of or in the course of their employment (s 4 of the Workers Compensation Act 1987 (the WCA)
    • Their employment was a substantial contributing factor to the injury (s 9A of the WCA).
  • The Workers Compensation Commission of New South Wales (WCC) confirmed that a person seeking workers’ compensation, or in the case of death, their dependants, must satisfy both ss 4 and 9A of the WCA.
  • Further, where death results from suicide, then dependants must also prove that the suicide was the product of a will so overborne or influenced by circumstances that it should not be regarded as an intentional act (s 14(3) of the WCA).
Background

The deceased committed suicide on 19 May 2012.  His widow (the applicant) alleged that work-related stress and anxiety led to the deceased’s suicide.

The applicant made a claim for workers’ compensation death benefits, including the lump sum death benefit, pursuant to s 25 of the WCA. The lump sum death benefit was $481,950 as at the date of the deceased’s death.

The deceased’s employer (the respondent) denied liability for death benefits on the following grounds:

  • The deceased did not sustain an injury arising out of or in the course of his employment with the respondent (as per s 4 of the WCA)
  • The deceased’s employment with the respondent was not a substantial contributing factor to his alleged injury (as per s 9A of the WCA)
  • Workers’ compensation was not payable because the deceased’s death was caused by an intentional self-inflicted injury (as per s 14(3) of the WCA).

The applicant challenged the respondent’s decision to deny liability, commencing proceedings in the WCC seeking a determination on liability.

Decision

On 27 June 2016, WCC Arbitrator Deborah Moore (the Arbitrator) awarded liability in favour of the respondent.

The Arbitrator found that the applicant failed to satisfy ss 4 and 9A of the WCA and that the defence in s 14(3) of the WCA had been made out.

The Arbitrator considered the totality of the evidence, including medical reports, clinical notes, statements from employees of the respondent and the deceased’s diary entries.

In relation to s 4 of the WCA, the Arbitrator conceded that the deceased may have expressed some unhappiness in relation to some aspects of his work place, and even some degree of stress. However, the Arbitrator concluded that there was no compelling evidence that the deceased sustained a psychological injury as a result of “work-related stress and anxiety”. Rather, the Arbitrator considered that the evidence was overwhelmingly that he developed symptoms of stress, anxiety and depression as a result of numerous factors, the least of which was his employment situation.

The Arbitrator referred to the forensic medical report of Dr Banks, psychologist, upon whose opinion the applicant relied. In his report dated 22 May 2014, Dr Banks considered a number of alternative diagnoses but concluded that numerous factors contributed to the deceased’s “depression, anxiety and stress symptoms”.

The Arbitrator also referred to statements from various employees of the respondent. The statements confirmed that the deceased did not make any complaints to his colleagues that he was suffering from “work-related stress and anxiety”.

Further, the Arbitrator referred to the clinical notes of Mrs Percy, the deceased’s treating psychologist, who was first to carry out formal testing and assessment of the deceased. Mrs Percy recorded “last Saturday morning [the deceased] thought he was having a heart attack…Biggest fear is becoming disabled…” Mrs Percy also recorded that the primary reason the deceased was seeking assistance was “anxiety. Fear about his heart”. The only comment from Mrs Percy relating to the deceased’s employment was “revenue target every month”.

The Arbitrator therefore concluded that the applicant failed to discharge the onus of proof in establishing injury, as required by s 4 of the WCA.

As the applicant failed to satisfy s 4 of the WCA, the Arbitrator was not required to consider s 9A of the WCA but did so anyway in case her determination on the issue of ‘injury’ was wrong.

The Arbitrator relied upon the decision of Rootsey v Tiger Nominees Pty Ltd2 where it was held that employment must be a substantial contributing factor to the receipt of an injury, not to the incapacity or need for treatment.

The Arbitrator also relied upon the decision of Dayton v Coles Supermarkets Pty Ltd3 where it was held that s 9A of the WCA requires “an analysis of the causal factors which resulted in the injury and an evaluation of the importance of the employment factors relative to the others…”

The Arbitrator addressed the report of Dr Banks wherein he considered that the deceased was suffering from a high degree of work-related stress at the time of his death. However, when asked to identify the factors contributing to his injury, the psychologist drew the following conclusion:

“…the factors of work-related stress, financial concerns, recent illness and health-related concerns, and relationship concerns were on the balance of probabilities all substantial causes of the depression, anxiety and stress symptoms [the deceased] was experiencing. It logically follows then that each of these factors were contributing factors in his decision to commit suicide”.

The Arbitrator noted that Dr Vickery, psychiatrist, on whose forensic medical opinion the respondent relied also considered that there were many factors that contributed to the deceased’s condition. Further, the Arbitrator noted that neither Dr Banks nor Dr Vickery considered that employment was a substantial contributing factor.

The Arbitrator also considered that there were several other matters of significance, including:

  • That the deceased’s cardiologist frequently described him as a very anxious person
  • The fact that the deceased expressed his health and financial concerns to some of his colleagues but made no mention of any work-related issues.

Further, the Arbitrator referred to the clinical notes from Sydney Adventist Hospital which recorded a history of symptoms for a few months, coinciding with the purchase of a house.

The Arbitrator considered that the deceased’s diary entries were perhaps the most compelling evidence in that the deceased expressed his concerns over a number of factors and that, in the Arbitrator’s view, the principle one was concern over the state of his health.

The Arbitrator therefore concluded that the applicant failed to demonstrate a sufficient causal linkage between the deceased’s employment and his injury (death), as required by s 9A of the WCA.

As the applicant failed to satisfy ss 4 and 9A of the WCA, the Arbitrator was not required to consider s 14(3) of the WCA but again did so anyway.

The Arbitrator followed the decisions of Holdlen Pty Ltd v Walsh4 (Holdlen) and Fire & Rescue NSW v Hayman.5 In Holdlen, the New South Wales Court of Appeal (Court of Appeal) held the following:

“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.”

In Holdlen, the Court of Appeal confirmed that s 14(3) of the WCA, on its proper construction, referred to an intentional self-inflicted injury. However, the Court of Appeal considered that 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.

In addressing the principles in Holdlen, the Arbitrator referred to the opinion of Dr Vickery who considered that the deceased died as a result of an intentional and deliberate self-inflicted act. In comparison, the applicant did not serve any evidence commenting on whether the deceased’s suicide was the product of a will so overborne or influenced by his circumstances that it should not be regarded as an intentional act for the purposes of s 14(3) of the WCA.

The Arbitrator was unable to accept that the deceased was so affected by any work-related stress that he lost the ability to control his suicidal impulse.

The applicant ultimately failed to establish that the deceased’s suicide, a deliberate act, was not an intentional act, and therefore, the respondent was not liable to pay workers’ compensation.

Why this Case Note is important

This case serves as a reminder that evidence must be obtained addressing both ss 4 and 9A of the WCA. Where death results from suicide, evidence must also be obtained commenting on whether or not the suicide was the product of a will so overborne or influenced by circumstances that it should not be regarded as an intentional act.

When obtaining forensic medical evidence, the questions for the expert must be specific and address each of the requirements of the WCA. For example, an expert should be asked to provide a diagnosis and comment on: whether or not the injury arose during the course of employment; whether or not employment was a substantial contributing factor (or the main contributing factor for diseases) to the injury; and, in the case of suicide, whether or not the suicide was the product of a will so overborne or influenced by the deceased’s circumstances that it should not be regarded as an intentional act.

It is prudent to use experts who are familiar with the New South Wales workers’ compensation scheme.

  1. Arbitrator Deborah Moore.
  2. [2002] NSWCC 48.
  3. [2000] NSWCC 14.
  4. [2000] NSWCA 87.
  5. [2012] NSWWCCPD 66.

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