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 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.
39 In asking whether the worker was insane at the time of his suicide the trial judge followed the traditional line of cases to which I have referred, apparently regarding insanity as going to causation rather than s 14(3). After referring to the cases, he said:
"The defendant's [sic] succeed if suicide was the result of insanity and the insanity was the direct result of the injury sustained. If the depression affecting the deceased was so great that he had lost the ability to control his suicidal impulses, the power of his volition would be seriously compromised. It seems to me clear on the evidence, the evidence of the widow, the evidence of the treating psychologists and of Mr Ervine, that the deceased's chronic serious depression was affecting him to such an extent that he had lost the ability to control his suicidal impulses. This appears also clear from the suicide notes which he wrote before his death.
Since it seems to me that the deceased's power of volition was seriously compromised, I find that he was insane at the time of his death, so that his mind was so unhinged as to dethrone his power of volition, and that this condition was casually [sic: causally] related in a relevant sense or materially contributed to by the injury the deceased had sustained in November 1994, which required constant treatment and which had compromised his life."
40 The appellant did not contend that the trial judge was in error in following these cases. Indeed, it said that he applied the correct test. Its submission was that there was no evidence on which the trial judge could have found that the worker was insane when he committed suicide, because the question of insanity required expert medical evidence based on established facts and there was no such expert evidence; it also put as a separate submission that the trial judge failed to give effect to s 14(3). In the light of what I have said, there could only have been a failure to give effect to s 14(3), assuming that on its proper construction it can apply to the worker's death, if there was no evidence on which the trial judge could have found that the worker was insane when he committed suicide. The submissions turn on the same question.
41 I do not think it matters that the finding was in terms of insanity, as it was in truth a finding that the worker had "lost the ability to control his suicidal impulses" and his "power of volition was seriously compromised". It is not necessary to take further, in the present case, the possible difficulties in the traditional line of cases, or to decide whether s 14(3) now governs death by suicide when considering whether death resulted from an injury. On the approach taken by the trial judge, accepted by the appellant to have been correct, if there was evidence on which the finding could have been made there was no error in point of law. The finding would be equally inviolate if removed from the perhaps misleading aura of insanity and seen as a finding that the worker's suicide was not an intentional act breaking the chain of causation, and if seen as a finding that the worker's suicide was not an intentional self-inflicted injury within s 14(3). If s 14(3) on its proper construction can apply to death by suicide in a case such as the present, the finding negates its application in this case.
42 The question for the trial judge was one of fact, the worker's mental state. It did not turn on a medical concept of insanity. It was a question of fact the trial judge could decide on the evidence of the worker's injury and its effect, without expert medical evidence, and there was no need for the special experience of an appropriately qualified medical practitioner (cf MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 at 489). That is not to say that expert medical evidence would not have been admissible and valuable, but there was no error in point of law in making the finding in its absence.
43 The evidence of the injury of 14 November 1994 and its effect on the worker, culminating in the notes left for his wife and his parents, underpinned the trial judge's finding. For present purposes, the question is not whether the finding was correct or incorrect. There was evidence on which the finding could be made. Nor does it matter that Dr Lovell, a psychiatrist, expressed the opinion that on the balance of probabilities the worker "could not be regarded as being insane at the time of his death despite his blood alcohol level". The significance of Dr Lovell's opinion is not easy to judge when he was not asked to elucidate what he meant by insanity, but in any event the fact that there was evidence to the contrary of the trial judge's finding does not mean that there was error in point of law.
44 The appellant submitted in the alternative that the trial judge had failed to give sufficient reasons to explain his conclusion as to insanity.
45 The trial judge had, as already noted, carefully examined the course of events and the medical and related opinions, and had referred to the cases to enunciate what the appellant acknowledged was the correct legal test. He had come to his finding in the passage earlier set out. The process of reasoning was clear.
46 The appellant suggested that the trial judge "failed to address" a number of "issues". The "issues" came down to the absence of expert medical evidence of insanity, the evidence from the wife of the worker to the effect that the worker was not unduly depressed and reasonably lucid shortly before his death, the contention that the suicide involved a degree of premeditation, and the fact that the worker's parents were not called to give evidence. The trial judge included the wife's evidence in his account of the facts, and there is no reason to think he overlooked any of the "issues". I do not think his reasons were inadequate for want of specific mention of any of the "issues" at the time he stated his findings.