Lavis and Pfeifer on behalf of Felstead (infant) v Workcover/Allianz Australia

4 The respondent disputes that the worker died as a result of a compensable disability. It is not disputed that following the injury, the worker became depressed, but it is asserted that the depression had other personal and social causes and that the suicide resulted from an interaction between those factors and his personality. The respondent also argues that if claims management issues and the rehabilitation process impinged on the worker's psychological condition those matters broke the chain of causation.

5 Even if the issue of causation is determined in favour of the claimants the respondent disputes the issue of dependency. In relation to the claimant, Vicki Kym Lavis, it is asserted that she does not qualify for the lump sum payment pursuant to s 44(1)(b) of the Workers Rehabilitation and Compensation Act ("the Act") as she was not cohabiting with the deceased on the date of his death (s 44(3)(a)). As to the issue of weekly payments the respondent asserts that Ms Lavis was not totally or partially dependent on the deceased as at the date of death and has no entitlement pursuant to s 44(2)(b)(ii).

6 In relation to the claimant Daniel Felstead, the respondent asserts that he was not a dependent child of the deceased at the date of death as the worker was not providing him with any financial support whatsoever.

7 The question whether the worker died as a result of the compensable disability is largely one of fact to be determined on the balance of probabilities by applying commonsense to the evidence of the causal chain and any relevant expert opinion. There are two aspects to be decided; firstly, whether the worker suffered depression as part of the consequences of his work injury and secondly, if he did, whether his death resulted from that depression. In the absence of any direct evidence from the worker, other evidence of the course of events over the two or so years before he died is important in determining the circumstances operating upon the worker at the crucial moment, and in particular whether the compensable disability was one of those factors, or whether other more powerful intervening factors have overtaken it as a cause, such that the chain of causation has been broken. Three possible intervening causes were posited by the respondent, namely the breakdown of the marital relationship and other personal losses, the worker's response to the compensation system, and his treatment at the Lyell McEwin Hospital ("LMH").

8 A question also arises whether there is any principle which, for legal purposes, precludes the treatment of the worker's death by suicide as a consequence of the compensable disability. Suicide is a deliberate self-inflicted act and it will be necessary to determine whether, at the point when the worker commenced that act, it was an intentional act breaking the chain of causation between the compensable disability and the death.

9 In the absence of any evidence from the protagonist about the relevant course of events and their particular significance to him it has been necessary to build up a rather detailed picture of his life between about 1996 and his death in 1999. This has been done largely by reference to the evidence of Ms Lavis and a considerable volume of documentary evidence. Ms Lavis' evidence relates to the worker's employment history, his medical treatment and activities following the elbow injury of 1996, details as to their relationship and her observations of his mood and temperament from 1996 until about the time of their separation in October 1998. Ms Lavis was well placed to give this evidence. She observed his activities and moods during this period and it is natural to assume that he would have voiced his concerns to her. However as she is one of the applicants I approach her evidence with some caution. Where possible I have looked for documentary confirmation of her evidence. There is no suggestion that she has intentionally misled the Tribunal but her memory and perception of notable events may have been influenced by a subconscious desire to diminish her significance in the worker's actions; a normal human response in such a tragic situation. This may have resulted in the stressing of some events and the minimisation of others.

10 The documentary sources of relevance are contained in the Trial Book and include documents generated during the management of the claim, such as medical certificates, Rehabilitation Reports, Return to Work Plans, functional capacity assessments, and determinations made at various times. In addition certain notes of his case manager were tendered. These concerned communications with the worker and a representative of the employer relating to an attempted return to work (Exhibit A4).

11 The trial book also contains relevant medical evidence relating to the worker's medical treatment before his death. These include the reports of his general practitioner, Dr Nolan, his Orthopaedic Surgeon, Dr Bain, his psychiatrist, Dr Ford, and a copy of the LMH case notes concerning various relevant admissions from 1996 to 1999. In addition the Trial Book contains other documents generated following his death including a report of Dr Davis, a consultant psychiatrist with a particular interest in suicide, the report of the Coroner who conducted an inquiry into the worker's death, and a report of another Psychiatrist, Professor Goldney, who reported to the Coroner on various aspects of the worker's treatment at the LMH in the months leading up to his death.

12 In addition I heard oral evidence from Drs Ford and Davis, the focus of which was the nature of the worker's depressive illness, the course of that illness culminating in suicide, and the likely factors which contributed to that outcome. Dr Davis did not examine the worker during his life but expressed his opinion having comprehensively considered the LMH notes and the other relevant medical reports and statements.

13 The worker was 33 years of age when he died. He was a qualified mechanic. He was married twice. He married Dawn Pfeifer in 1985. Daniel was born on 13 November 1986. Ms Pfeifer and the worker divorced in 1988. Thereafter he had little or no contact with Daniel. He met Ms Lavis in 1989. In July 1990 they started living together. In December 1993 they were married and in October 1998 they separated. He lived alone until his death in March 1999.

14 I find that, pre-injury, the worker was prone to depression attributable to constitutional and personal factors (Dr Nolan; Trial Book vol 1 at 138, Dr Ford tr 96, tr 107, and Dr Davis tr 135 and 149). A particular aspect of his personality which contributed to his response to particular situations was his sensitivity to loss. I refer to the opinion of Dr Davis (TB vol 1 at 154 - 165) and the LMH notes of 16 November 1998 (TB vol 2 at 354). Other aspects of his personality which impacted on his response to situations included a susceptibility to anxiety and agitation, low self esteem, sensitivity to criticism and difficulty sustaining relationships. I have gained this impression of the worker from a detailed examination of the hospital notes, the correspondence and notes concerning his attempted return to work and rehabilitation, the report of Dr Nolan and the evidence of Ms Lavis.

15 In the years prior to the injury there were various episodes of depression related to relationship difficulties where his loss sensitivity was an obvious feature. In about 1989 when he separated from his first wife, Ms Pfeifer, he experienced an episode of depression and he attempted suicide (TB vol 2 at 251).

16 The first few years of his marriage to Ms Lavis were uneventful. However in 1995 he obtained a job at Moomba through Ms Lavis' father. He resigned that position without telling Ms Lavis' father. This caused discord with Ms Lavis' family. It also caused disagreement between the worker and Ms Lavis. Ms Lavis described the worker as being "down" at this time (tr 75). The worker wanted Ms Lavis to break her ties with her family. In particular he did not want her to celebrate her birthday with her family. He refused to participate in Ms Lavis' sister's wedding nor did he want Ms Lavis to participate. Ms Lavis refused to bow to his wishes.

17 On 18 February 1996, shortly before her birthday, Ms Lavis came home to find the worker unconscious having taken a number of diazepam and alcohol. Although on admission to hospital he gave a history that he had not intended to harm himself but had taken the substances hoping to go to sleep, the ingestion occurred shortly after an argument with Ms Lavis about her family and was probably influenced by a depressed mood.

18 Two weeks later, on 4 March 1996, he was admitted to hospital again for an intentional ingestion of prescription drugs and alcohol. The ingestion was regarded by those treating him as a suicide attempt of low lethality and he was detained under the Mental Health Act for treatment for several days. Whilst in hospital he gave a history of marital discord, depression and low self esteem. A diagnosis was made of adjustment disorder with depressed mood (TB vol 1 at 146). I find on the basis of Ms Lavis' evidence that following these two hospital admissions the marital relationship improved and that he recovered from the episode of depression. This finding is supported by the absence of hospital admissions for depression during this time.

Findings as to the injury and the events up to October 1998

19 At about the time of the March 1996 hospital admission the worker commenced employment as a casual mechanic and boring operator with V and P De Vizio, a company involved in preparation work associated with the installation of underground cabling. The worker performed a range of duties including tree lopping and directional boring, a system used to locate underground services and to direct drilling operations.

20 Whilst performing these duties on 4 October 1996 the worker developed a painful right elbow. He sought medical attention but continued working until early November when repeated hammering of metal stakes and breaking up concrete with a crow bar caused further pain in the elbow. At this point he lodged a Notice of Work Related Injury (Supp TB at 3).

21 He consulted Dr Nolan, was diagnosed with lateral epicondylitis and synovitis and referred to Dr Bain, an orthopaedic surgeon, who performed an arthroscopy in early 1997. Dr Bain certified the worker fit for modified duties from 28 January to 28 March 1997 (AB vol 1 at 175). However there were no suitable duties available with the employer so by determination dated 19 February 1997 (Supp TB at 8), the claim was accepted for a deemed total incapacity for work.

22 From about March to the end April 1997 attempts were made to return the worker to suitable duties with the employer. The worker complained to his case manager on occasions that the employer was not providing him with suitable duties and the employer complained that the worker was not co-operative. The relationship broke down and his employment was terminated at the end of April 1997 when the worker alleged that he suffered an aggravation whilst undertaking unsuitable duties and the employer disbelieved that such an incident had occurred. (Exhibit A4)

23 Further rehabilitation plans recommended that he attend a job club and over the period June 1997 to October 1998 the worker had several placements with various employers. These were organised through the RISE scheme but were of short duration. The last placement was as a storeman with Rocca Brothers. He was placed there on 7 August 1998 and was employed by Rocca Brothers from 28 September 1998 to 28 October 1998.

24 Ms Lavis gave evidence about her observations of the worker during the period between the injury and October 1998. She said that although initially the worker was in considerable pain sufficient to bring him to tears (tr 58) he was optimistic about returning to work. As time moved on, when his arm did not seem to be improving, he became very concerned and dejected about his long term ability to undertake work as a mechanic. He was particularly upset about his attempt to return to V and P De Vizio as he believed that he had been given work which aggravated his elbow pain and he was unhappy about the subsequent rehabilitation process which resulted in him being sent from one job to another between June 1997 and October 1998. During this period Ms Lavis described the worker as being stressed and unable to cope with change. He told her he felt depressed (tr 62).

25 I accept this evidence that the worker did not cope well with his return to work and the rehabilitation process, and became depressed. I find that he did have a difficult relationship with his employer on his attempted return to work and that this difficulty and concern about the duties provided to him contributed to the onset of his depression. This is supported by the case manager's notes contained in Exhibit A4 and Dr Nolan's report of 25 May 1999 (TB vol 1 at 137) in which she refers to her unsuccessful attempt to mediate between the employer and the worker. Dr Nolan also outlines other matters of which the worker complained to her including, his fear that the employer was trying to get rid of him, his view that WorkCover was not very helpful and a sense of persecution which he exhibited following a WorkCover investigation of him in April 1997 (TB vol 1 at 128 - 132). These complaints demonstrate a loss of control over his working life. Given his personality and his vulnerability to depression, the fact of his injury and its consequences including the restriction of movement of the left arm, the difficulties concerning his attempted return to work and ongoing uncertainty about his future employability and earning capacity, all operated to cause the onset of a further episode of depressive illness. Dr Davis accurately summarised the worker's predicament in his report TB vol 1 at 157:-

"Mr Felstead struggled to deal with the impact of injury and its sequelae. The injury brought significant disruption to work and the pursuit of some leisure activities. He then struggled to deal with the return to work programme and various employers, and became increasingly focussed on his physical limitations and loss of career opportunities. It is likely that personality issues complicated the rehabilitation process."

26 I find this episode of depression commenced in early 1997 and was ongoing as at October 1998. I find that from early 1997 up until about July 1998 the marital relationship was detrimentally affected as a consequence of the worker's depressive state, but that during that time the relationship itself was not a particular cause of his anxiety and depression.

27 Circumstances changed from about August 1998. Ms Lavis said that by that time the worker became difficult to live with. He withdrew from her, he was angry, and would not talk about his problems. This difficulty coincided with Ms Lavis going on a holiday to Bali with some mutual friends. The worker and Ms Lavis had planned this holiday for some time but as the worker had only recently been placed at Rocca Brothers, he was reluctant to ask for time off. He decided not to go on the holiday but told Ms Lavis he had no problem with her going. On her return he became very reclusive. This culminated in the worker asking Ms Lavis to leave the family home on 7 October. He became hostile. There was an occasion when he pushed her around and slammed her between a door and a wall. (tr 80). He told her their marriage was a joke, that he was a joke and that nothing in his life was going right; that he was useless (tr 67).

28 I find that this behaviour was attributable to a deterioration of his already compromised mental state. I accept the analysis of Drs Davis and Ford that his loss sensitivity came into play when Ms Lavis went on holiday without him. Dr Ford said it is likely that he was very angry with his wife, felt alienated from her and regarded her decision to go on holiday as abandonment of him (tr 115). Dr Davis described this event as a very significant adverse turning point in the marital relationship and that the worker had an exquisite sensitivity to any sense of loss or rejection of that relationship.

29 There were also other possible losses which were influencing the worker at that time. His father, from whom he was estranged, died in July 1998, and at an earlier time his brother-in-law had committed suicide. One could speculate that in a person who was already depressed and sensitive to loss, these events may also have impacted upon his psyche. However as at October 1998 I find that the worker's existing depressive illness worsened predominantly as a consequence of his reaction to his wife's holiday and his perception of loss. At about the time that the worker and Ms Lavis separated he ceased working for Rocca Brothers where he was working with certain lifting restrictions. It is not clear why he left, but there is a reference in Dr Ford's case notes that the job was "high pressure" and that he "couldn't keep up with Rocca Bros" (tr 106). I draw the inference that it was primarily his depression which prevented him from continuing with that employment.

30 On 20 November 1998 Dr Nolan certified the worker totally incapacitated for work as a result of major depression. On 23 November 1998 his Rehabilitation Counsellor Mr LeCornu, reported to the respondent's case manager that the worker did not have the capacity to undertake intensive job search. (Supplementary TB at 173 - 174). At about this time Dr Nolan also referred the worker to Mr Magliaro, a psychologist, who treated him with psychotherapy. The worker continued to be in receipt of weekly payments but from time to time had been in dispute with the respondent about the rate of his weekly payments. On 20 October 1998 he instructed solicitors to issue a notice of dispute in the Workers Compensation Tribunal. (Statement of Mr Gallasch, Exhibit B1).

31 During the period between October 1998 and March 1999 the worker was living alone with little social contact. Ms Lavis saw him twice in that period. Firstly on 27 November 1998. On that occasion she was staying with friends and he was sitting in a car outside the house crying. He had lost a considerable amount of weight. He asked Ms Lavis to come home but as she was frightened she refused. The second occasion was on 29 January 1999 when Ms Lavis attended the family home in the company of police officers to collect some belongings. Although the worker was present she did not speak to him on that occasion.

32 From October 1998 the worker's psychological state continued to deteriorate. The LMH notes provide a chronicle of this deterioration. He was hospitalised on a number of occasions following several suicide attempts. On 29 November 1998 he was admitted to the LMH following a suicide attempt by the ingestion of prescription medication combined with alcohol. He was detained under the Mental Health Act for treatment for several days. He was noted to have been "thinking of death" for the last six months and his notes record the separation from his wife and WorkCover concerns as being matters influencing his mood (TB vol 1 Goldney at 146; Vol 2 Hospital notes 325).

33 Subsequently he was assessed by a counsellor of the South Australian Mental Health Service who arranged for his voluntary admission to the LMH on 7 December 1998 because he was expressing suicidal thoughts and assessed to be at risk. The clinical records of that hospitalisation indicate that the worker gave a history that his wife had recently left and that he feels socially isolated and that due to his elbow injury he feels "that it is unlikely that he will be able to take on his desired career as a motor mechanic. Feels very depressed and sees no hope for the future". The notes also mention that he was a "wet blanket" to his wife, that whenever he has experienced "happy times" in his life he has paid for it by crashing down afterwards and feeling "very depressed" and that he separated from his first wife due to these reasons (TB vol 2 at 381 - 382). The clinical impression and provisional diagnosis noted at that time was that he was suffering from adjustment disorder with depressed mood with suicidal ideation secondary to "unresolved workcover issues and separation from wife" (TB vol 2 at 246 and 384).

34 A further discharge summary dated 15 January 1999 indicates that he presented to the hospital again on 13 January 1999 having taken a combination of prescription drugs and alcohol because he wanted to terminate his life (TB vol 2 at 360).

35 A counsellor from the community team attended the worker on a home visit on 24 January 1999 when the worker again expressed suicidal ideation. On that occasion he gave a history that "Workcover is one of the main stressors in his life currently, rates it as a 8/10 stressor - also wife leaving, grief reaction ongoing" (TB vol 2 at 345).

36 On 29 January 1999 he was admitted to the Emergency Department of the LMH with minor injuries following a motor vehicle incident. He gave a history that he had deliberately attempted to kill himself by driving his motor vehicle into a tree at 70 kph. The clinical record of that admission states that this attempt coincided with Ms Lavis attending the family home to collect her belongings. The worker gave a history that he had been on WorkCover for 2 years and that "Wife came around with police this morning to collect items from the house. Apparently became upset - suicidal - drove car with intention of killing himself". (TB vol 2 at 263) Apart from some neck stiffness he came out of that incident unscathed.

37 Following this incident Dr Nolan referred the worker for urgent assessment by Dr Ford who saw him on 4 February 1999. Dr Ford noted severe symptoms of depression and diagnosed major depression with melancholic features. He was particularly concerned about the continued risk of suicide and obtained the worker's agreement that he would not try again without first contacting Dr Ford.

38 On 8 February 1999 following communication between Dr Ford and the worker's solicitor, Mr Gallasch, a further claim for compensation was lodged with WorkCover claiming "PTSD, depression, panic disorder and melancholia as a consequence of pain and incapacity for work following the elbow injury" (TB vol at 10 - 11). The principal purpose of this claim was to secure private psychiatric care for the worker.

39 Notwithstanding the no-suicide agreement, on about 13 February 1999 the worker took another overdose. He was found by his sister and briefly admitted to hospital on 14 February 1999. The discharge record dated 14 February states that he took the medication "to stay the pain of separation from his wife" (TB vol 2 at 255).

40 Following this admission Dr Ford arranged for the worker to be re-admitted to the LMH's psychiatric ward on 16 February 1999. He did so because he continued to hold fears for the worker's safety and had no prospect of admitting him to a private hospital without acceptance of the worker's recently lodged compensation claim. Following admission a detailed psychiatric examination was conducted by a Dr Patterson in which he noted his impression that the worker had a sense of loss as to his working ability and his wife, and queried whether the loss of his father was also a factor. He noted that the worker presented with symptoms of major depressive disorder and several efforts at suicide. He also noted that the worker demonstrated loss of control and narcissistic traits "which render him perhaps more vulnerable to the above insults/losses" (TB vol 2 at 354). Dr Patterson recommended that he be admitted and observed. He advised Dr Ford that the worker would not be discharged without prior warning to Dr Ford. Despite this indication another doctor discharged the worker on 17 February 1999 without consulting Drs Patterson or Ford.

41 Whilst all of this was happening the claims agent was considering whether to accept the psychiatric claim. On 16 February 1999 the claims agent advised the worker's solicitors that it would not determine the claim without obtaining a second psychiatric opinion. An appointment was arranged for the worker to be examined by Dr Burvill on 12 March 1999. The worker spoke to Mr Gallasch on 5 March about this and about an attendance which he had at the Workers Compensation Tribunal that day concerning the dispute about the quantum of his income maintenance. The attendance was unnecessary as the matter had already been resolved and the worker was angry about not being notified. Mr Gallasch advised the worker that he was unaware that the worker had received any notification as the dispute had been resolved at an earlier time.

42 The worker also spoke to Mr LeCornu on 5 March 1999 when he expressed his frustration about the unnecessary attendance at the Workers Compensation Tribunal and advised that he had failed to attend an appointment with Dr Ford because all Dr Ford could do was "put him back in IG (the psychiatric ward of LMH)" (Supp TB vol 1 at 78).

43 Three days later on 8 March 1999 the worker died. Following the last interview with Mr LeCornu the latter wrote to the worker's case manager. The letter was dated 9 March 1999. It was written without Mr LeCornu being aware of the worker's death. He expressed his concern about the delay in the determination of the worker's claim. He referred to the worker's need for ongoing consistent psychiatric treatment and spoke of such treatment being a possible lifesaving strategy. He also commented upon the worker's frustration on attending the unnecessary conciliation conference on 5 March and that the worker told him that as a result of such events "his anxiety levels build considerably" (Supp TB vol 1 at 179).

The Worker's Depressive Condition as at March 1999

44 On the basis of the history outlined above I find that until the time of the worker's death, the injury and its consequences were impacting on his mental state as were his marital difficulties. Had the post October 1998 hospital records and the other relevant information such as Dr Ford's notes, Mr LeCornu's letter and Mr Gallasch's statement emphasised only the marital difficulties as the focus of his depressive illness, it might have been appropriate to make a finding that this was a new and independent cause which, from October 1998, overtook any other causative factor, thus breaking the chain of causation between the work injury and its consequences and the depression. However, that was not the case. I find that there was one continuing depressive illness in existence from shortly following the work injury right up until the worker's death, and that condition deteriorated from about October 1998 when, as part of the existing depressive illness, the worker became more vulnerable and sensitive to the loss of his relationship with Ms Lavis.

45 I find that by early 1999 the worker's condition was one of major depression with melancholia and that such condition was attributable in part to the work injury and its associated limitation of movement, loss of the ability to work as a mechanic, and restricted employment prospects, which features were ongoing.

46 The workers compensation litigation process concerning his rate of income maintenance and the claims process relating to the psychiatric claim also weighed heavily on the worker producing anxiety and frustration. He described to Dr Ford that "MMI at me all the time" (tr 106), but these difficulties were a product of his depressive state and were not a cause of the condition. He was already experiencing depression which made it much harder for him to cope with the interaction required within the litigation process. I reject the proposition that the worker's involvement with this process was an intervening cause of his depression which overtook the pre-existing causes.

47 Nor am I satisfied that his less than desirable treatment at the LMH was an intervening factor breaking the chain of causation between the compensable disability and the depression. It was certainly the case that the Coroner criticised the worker's discharge from the LMH on 17 February 1999 which he described as "inappropriate" and "a result of human error" (TB vol 1 at 73). However this was not a situation where "the old cause goes and a new one is substituted for it, that is a new act which gives a fresh origin to the after consequences". (Boulter Workers Compensation Practice par 198 Dunham v Clare (1902) 2 KB 292.) Or to put it another way, although his admission was unsuccessful and the discharge was harmful to him because it meant that he was not in a secure environment, it did not constitute negligence of such a significantly grave degree that it broke the chain of causation (Rosmini v Chrysler (1973) 6 SASR 212 at 220).

48 The question remains whether the death resulted from the depression which was a concomitant of his injury and his marital difficulties. Both Drs Ford and Davis agreed that many people who are depressed have suicidal ideation and are at risk of attempting or committing suicide, but that not all depressed people go on to successfully commit the act. Dr Ford took the linear approach to the issue of causation of the suicide and expressed the view that there was a direct link between the injury, the depression and the suicide; that as part of his major depressive illness the worker held views of worthlessness, uselessness and hopelessness. Dr Ford expressed the view that the worker may have been delusional in holding those views "which is to say that he lost contact with reality, by holding those ideas with the intensity with which he did" (tr 129). Dr Ford explained the capacity of depression to concentrate on the negative aspects from one's environment and that superimposed on that intense negativity was a loss of control epitomised by the events of the few days preceding his death. In this way Dr Ford expressed the view that the death resulted from the injury related depression.

49 Dr Davis held the view that although the work injury and its sequelae contributed to the worker's morbidity, it cannot be identified as a substantial cause or factor in the ultimate suicide. He explained this view at tr 133 as follows:-

"Yes. There was no doubt that Mr Felstead suffered considerable depression, and prior to that a degree of demoralisation, frustration and unhappiness in relation to his injury and its sequelae, and I thought - when I refer to morbidity it's a comment on an altered state of health. I thought that that was relevant in terms of physical and mental health - morbidity. But I could not identify that fact as a substantial factor in the ultimate suicide. I thought that was something that's far more complex and required a lot more deliberation."

50 Dr Davis expressed the view that, although depression is seen as a consequence of interaction of many factors including constitutional, environmental or external, suicide is a far more complex phenomenon and it cannot be argued necessarily that the factors that lead into a depressive state will be the same factors that lead to suicide (tr 134).

51 I have considered these opinions carefully and although Dr Davis' view may have theoretical validity I have reached the view that, in this case, there was a sufficient link between the death and the injury related depression. Dr Davis doubted that the depression was the substantial cause of the suicide, however I am not concerned with the notion of "substantial cause". It will be sufficient if the depression was one of a number of causes. The history provides a strong basis for the conclusion that the worker's suicidal behaviour in the past and on this occasion was driven by the pathological thought processes intrinsic to his severe depression. I find that his thought processes were severely distorted by the depression, he felt overwhelming negativity and that this kind of thinking drove the behaviour which resulted in the fatal outcome. In addition to the background level of his thought distortion, on each occasion that he has attempted suicide there appears to have been a precipitant or a particular focus for his sense of hopelessness. Whilst in the past it was sometimes related to his wife, it was also related to his injury and its consequences. (I refer to paras 32 - 36 above.)

52 This tragic incident occurred shortly after his conversation with Mr Gallasch and Mr LeCornu on 5 March 1999. In that context, whilst there may have been other precipitants operating on his disordered mind at the time that he took his life, I infer that it is probable that the work injury and its actual or perceived cumulative consequences was a relevant focus for his desperation.

53 Having made the factual connection between the death by suicide and the injury related depression, it is incumbent upon me to consider whether, notwithstanding, the intentional nature of the act constitutes a novus actus interveniens breaking the causal chain. Historically, compensation legislation has been focussed on accidental injury and accordingly a self-inflicted intentional injury did not give rise to an entitlement. Although the current Act is not explicit as to the continued relevance of this approach recent dicta of Doyle CJ in SA Health Commission v McArdle and Anor (Judgment no S6685 (1998) South Australia Supreme Court) confirms that this is so.

"There was another aspect to this submission. It was that the death of Mr McArdle did not result from the compensable disability, the depressive condition, if Mr McArdle's death was the result of a deliberately self-inflicted injury. Underlying that submission is the assumption, which must be sound, that a deliberately self-inflicted injury will not usually give rise to a compensable disability under the Act, and that the results of a compensable disability will not include conditions that result from deliberately self-inflicted injury.

These propositions are not expressed anywhere in the Act. However, while I have stated them rather generally, I have no doubt that they reflect the law.

For present purposes I put to one side disabilities attributable to `serious and wilful misconduct' and to the effects of the consumption of alcohol and drugs. By s30B of the Act, `in a case of death' these disqualifying factors do not operate.

Cases dealing with claims based upon suicide by a worker have held that compensation can be claimed for the death of the worker if the injury suffered by the worker was such that the worker's `power of volition' was destroyed, and if it was as a result of that that the worker committed suicide. The cases are summarised in Crengle v Lake Brummer Saw Milling Co [1953] NZLR 765; see also Dwyer v State of South Australia (1979) 46 SAIR 170."

54 The test expressed in Crengle v Lake Brummer Saw Milling Co (1953) NZLR 765 was that accepted in an earlier English authority Church v Dugdale and Adams Ltd (1929) 22 BWCC 444. The entitlement of a dependent when suicide has been established was said to require a conclusion that the worker was insane at the time of the suicide. Such insanity need not be established in accordance with the McNaghton Rules ((1843) [1843] EngR 875; 10 Cl & Fin 200; 8 ER 718) but by the test on the balance of probabilities that the deceased's mind was "so unhinged as to dethrone his power of volition" (see Church supra, and Perry v English Steel Corporation Ltd (1939) 32 BWCC 272 at 275). The test also required that the suicide was the result of the injury and that the insanity was the direct result of the injuries received.

55 This test was further explained by Lord Hanworth MR in Church supra (at 449)

"The upshot of all of this is, that when one turns to see the facts of the case before the Court it is necessary to find not merely that there has been suicide, not merely at the time of the suicide that there was some depression and some delusions, but you must find that the condition of the man was such that the accident disabled him from exercising judgment, and in that sense caused the accident. If you find merely that in consequence of the accident he is brooding in fear of poverty, or in distress, or in a mental condition which is consistent with the condition of a person not suffering from an accident, there you do not find and are not entitled to draw the inference that his mind has become unhinged so as to dethrone his power of volition and in that sense there is no proof and no necessary connection between the accident and the suicide."

56 A modern understanding of psychiatry has required a clarification of this position. In Rosmini (supra) at 218 in which one of the issues was whether the development of a neurosis after a worker returned to work following an injury could be regarded as having resulted from the injury, or was a matter of the worker's voluntary choice in the sense that it related to his attitude to the consequences of the injury, Bray CJ examined the earlier held view that "many, if not all, of the cases where insanity, or incapacity for work due to mental or psychiatric conditions, has been held not to result from the injury are cases where in effect the mental processes of the workman have been held to proceed from his voluntary choice and therefore to amount to a novus actus interveniens" (at 219). His Honour concluded that this division of mental disorders into two separate categories, one produced by the injury itself which will be compensable, and one produced by the attitude of the worker which will not, is not a distinction of law but one of fact. After referring to the earlier decision of City of Woodville v Balassone ((1968) SASR 147 at 151 - 152) where he treated the distinction as a rule of law Bray CJ said at 219:-

"I now think, however, that this distinction cannot be a distinction of law. The inquiry in every case must be whether the incapacity resulted from the injury, and the answer must depend, to a great extent, on the evidence adduced in the case, and particularly the medical evidence: and medical science has not stood still on the subject of psychiatric and nervous disorders over the last seventy years. I think that the true position is accurately summed up in Boulter, Workers Compensation Practice (1966) at p. 160:

`Medical science in relation to nervous disorders advanced very greatly during World War II and shortly thereafter and it is important that each case should be decided in light of present day medical knowledge rather than on statements of medical views in cases decided prior to World War II ... Among the early decisions will be found cases in which it was held that if the incapacity results from the brooding of the worker over his condition it is not compensable ... That proposition still stands if the brooding is not a sequelae of the physical or mental injury, but from a medical point of view it will probably be found that there are very few cases in which brooding over a condition per se is the cause of incapacity, but rather that the brooding results from the form of neurosis from which the worker is suffering.'"

57 His Honour then quoted the following passage from the decision of Lord Fleming in Coulter v Coltness Iron Co Ltd (1938) SC 720 at 726:-

"In Wither's case ((1916) 2 KB 772) the view was taken that the insanity had been produced by the injured man brooding over the consequences of the accident and his future prospects. Assuming that in some cases it is proper to regard such brooding and anxiety as being a thing within the man's own control which cannot properly be regarded as resulting from the injury, it appears to be a mistake in law to take the same view of worry and depression which are a usual concomitant of the original injury and therefore really part of it."

58 The point His Honour made from this case, and in particular from the judgment of Lord Moncrieff, was that "while a voluntary act of the workman may well break the chain of causation, what his Lordship calls a reflex act of his can have no such consequence and is to be regarded merely as an event in the complex of relevant circumstances" (at 219, 220).

59 In Rosmini Bray J relied on the developments in modern psychiatry to explain the fallacy of the view that a neurosis that post dates an injury will always result from an act of volition. Its importance here is it reinforces the proposition that, 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.

60 In measuring the worker's circumstances against that test I find that suicide occurred when his reason was overthrown by the pathological process of his depression. His world was so distorted by his depression that he was driven to the behaviour which was not rational. In that sense the suicide was a product of the depressive illness and thus resulted from the compensable disability. On the issue of causation I find for the applicants.

61 There is no evidence upon which it can be found that Ms Lavis and the worker were cohabiting at the date of death, and thus no basis upon which I can find that she has an entitlement to the prescribed lump sum. However in light of this decision, Ms Lavis will be at liberty to request of WorkCover that a discretionary payment is made to her pursuant to s 44(3)(b) of the Act.

62 A funeral benefit is payable. I will hear the parties as to the quantum of that benefit.

63 As to whether Ms Lavis has a partial dependency, I find that she is so dependent. I make that finding on the evidence of Ms Lavis that she and the worker were both contributing to the mortgage payments of the house which they jointly owned. As at the date of the death she was dependent upon the worker to the extent of his contribution to the mortgage payments. I will hear the parties as to the precise extent of the dependency.

64 In relation to Daniel I find that as at the worker's death, Ms Pfeifer was not receiving any money from the worker towards Daniel's support. Ms Pfeifer supported Daniel from her Sole Parent's pension and Family Income Supplement, but also relied to some extent on her parents and charity. Indeed, I find that for the ten years prior to his death the worker paid no money towards Daniel's support. At one stage Ms Pfeifer attempted unsuccessfully to pursue him for maintenance. From time to time since 1990 the Department of Social Security has exempted her from the requirement that she take maintenance action against the worker. She sought such exemptions only because she could not afford to take the necessary legal action against the worker. Nevertheless, I find that Daniel was partially dependent on the worker. Such dependency is based on the worker's legal obligation as the non custodial parent to support Daniel. That legal obligation is contained in the Family Law Act, and is also referred to in Aafjes v Kearney [1976] HCA 5; (1994) 180 CLR 199 at 208 per Gibbs J "It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters". I will hear the parties as to the precise extent of the dependency.

65 I will hear the parties as to the orders sought.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.