The facts of, and the decision in, M'Kew [1970] SC (HL) 20 illustrate the same deficiency in the test … The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful act, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action."
19 It is therefore necessary to consider the evidence of the worker's situation between his motor vehicle accident and the fall, and the evidence of the later events which affected him.
20 The worker attempted, unsuccessfully, to get back to work on light duties eight days after his motor vehicle accident (black 39, 57). Later he thought that his back would be sufficiently rehabilitated and he would probably be ready to go back to work in January or February (black 40-41, 44, 58). Prior to the hand injury Miss Morrow also thought that the neck and back could have been rehabilitated and that he was going to get back to work (black 41, 58). Ms Fuller, the employer's human resources manager, said that before the fall the worker was confident he could do his old job provided he paced himself (black 89).
21 Dr Chang, his general practitioner, saw the worker a number of times after his motor vehicle accident and his clinical notes are in evidence (blue 209-17). A number of the relevant entries are referred to in Dr Maguire's report of 18 November 2002 (blue 241-2). On 14 June, shortly after the motor vehicle accident, the worker was complaining of pain "not unbearable, more annoying … also irritated because he would rather be at work". On 21 June he reported to Dr Chang that he felt "a lot better". On 8 August he said that he was going well with physiotherapy and was considering returning to work on light duties for the second time on 13 August. On 5 and 25 October, after the fall, he reported (blue 215-6) "neck slowly improving since stopping physio". Finally on 22 November he recorded (blue 216, 242) "neck has its moments, it wouldn't stop me doing light duties".
22 Dr Chang did not record any complaint or symptom of depression, or prescribe anti-depressant medication. However in 1999 a Newcastle general practitioner, Dr Mudaliar, had treated the worker for depression. He recorded in his report of 20 October 2003 (blue 305):
"I saw him a month later and he reported feeling considerably better on anti-depressant. He remained on Zoloft for a further 2 months and ceased medication because he had found work and was back to normal emotionally … In my opinion his depression in 1999 was related to being jobless and he recovered from this completely."
23 Miss Morrow confirmed this and said she had suggested to the worker that he seek treatment (black 24-5, 52-3).
24 The other doctors who treated the worker after his motor vehicle accident, Drs Manohar, Kenna and Conolly, did not record any complaint or symptom of depression. On 1 August Dr Kenna recorded the worker's complaints of neck and some shoulder pain and associated headaches (blue 288). He thought the worker would be free to return to work in some capacity within the next 3 to 4 weeks "but his symptoms may well linger for some time … until there is further resolution". He concluded (290, 293) "that he will certainly be fit and capable of returning to work in the next three weeks initially on suitable duties and certainly reduced hours. Over a period of several weeks he then can be upgraded to return to pre-injury duties".
25 On 19 November Dr Kenna reported (295) "that his neck pain had improved but this seemed of minimal issue compared to his hand at this point of time". He concluded (296):
"I consider he is unfit for work, not due to the initial injury but due to this recent injury … The cause of his incapacity for work now is substantially due to this recent injury though clearly he was partially incapacitated but was approaching fitness to return to work pertaining to the initial cervical injury."
26 Dr Manohar reported to Dr Chang on 6 August (blue 201) that the worker was gradually improving. The pains were gradually decreasing and the range of motion increasing. On 3 September, the day of the fall, he recorded that the worker had ceased physiotherapy and his headaches had disappeared (202). On 12 September he recorded that the fall had caused "exacerbation of pre-existing neck lesion" (203) and on 17 September he noted that the worker's pains in the cervical region had not improved but "the worst pain is in the arm" (204). On 3 October he recorded that the worker still had neck pain extending to the shoulders but "his neck pain is reasonably good as he has not been performing any major activities" (205). On 19 November he advised the worker to undertake a two week course of physiotherapy for his neck pain (206) and on 10 December he recorded that the worker's neck pain was improving and he was advised to continue with therapy (207).
27 Dr Conolly's clinical notes and contemporary reports are not in evidence, but Dr Maguire referred to them in his report of 11 November 2002 (242):
"Dr Conolly also saw Mr Beer regularly after commencing treatment in October 2001 for his hand injury. There are no references to Mr Beer appearing depressed or emotionally disturbed. Dr Conolly saw Mr Beer only eight days before his death. He wrote 'he had lost some of the pain of his right hand and arm and was regaining some movement of function …'.
28 When Dr Conolly saw the worker on Thursday 20 December he provided a certificate that he would not be fit for work until 14 January. One might think that keeping an appointment for this purpose would be of no importance to someone if he was contemplating suicide in the next few days.
29 Miss Morrow said that following his motor vehicle accident the worker was not happy because he could not work (black 37) and was a bit difficult and angry (38). However neither then nor after his fall did she suggest that he seek treatment for depression as she did in 1999.
30 The only suggestion in the evidence that the worker was depressed before his fall was in the report of 26 July by Alison Dalley, an occupational therapist at CRS (blue 32-9). She wrote (34):
"Mr Beer reported that he has become depressed since his injury. Mr Beer reported that his inability to do what he wants due to his injury, his lack of sleep due to his injury and his concern that he may lose his job have all contributed to his depression, frustration and at times, anger."
31 Her report became the basis of the return to work program CRS submitted to the insurer on 3 August (226). What appears to be a CRS internal working paper completed between 9 and 10 August (227) included, under psychological issues, the following (229):
"Depressed someone else may take job - cannot do anything … has a friend who is a psychologist who can talk to - feels as though getting better - waking up at night due to the pain (take morphine)."
32 These references are not evidence of a diagnosis of clinical depression by the worker or the occupational therapist. They are only complaints by the worker that he was worried or feeling down. "[A] person is not liable, in negligence, for being a cause of distress … fear, anxiety … [or] despondency, without any resulting psychiatric illness": Tame v New South Wales (2002) 211 CLR 317, 329 per Gleeson CJ.
33 Reference has already been made to the worker's statements to his treating doctors between 26 July and his fall on 3 September: paras [21], [24], [26]. These indicate his continuing improvement and growing optimism.
34 There is no contemporary evidence that prior to his fall the worker had symptoms of clinical depression, or was contemplating suicide. His condition was improving and he and his doctors were hopeful that he could soon get back to light duties, and then to normal duties.
35 The fall on 3 September had a significant impact on the worker. Apart from the injuries to his right hand and the reflex sympathetic dystrophy which supervened, it exacerbated his pre-existing neck lesion (blue 203). The complaints recorded by his treating doctors after the fall emphasised the impact of the injuries to his hand, and the continuing improvement in his neck. The worker believed that his neck would not stop him doing light duties: paras [21], [25], [26], and Dr Kenna reported on 19 November that the neck was a "minimal issue" and that "the cause of his incapacity for work now is substantially due to this recent injury".
36 Miss Morrow confirmed this (black 41, 45). Speaking of the situation in December she said (44):
"I think he thought that his back would've been sufficiently rehabilitated that he could've resumed work but the hand definitely wasn't better. It would've taken - he needed longer time."
37 She said that, at the worker's suggestion, they went to see a movie on Boxing Day but only stayed for 40 minutes because his neck was very uncomfortable (black 45).
38 She said that a number of extraneous events during the second half of December caused the worker considerable worry and distress. He had been engaged by the City Council to organise events at the Opera House on New Year's Eve and had lined up about 30 people for this work. The events were cancelled just before Christmas and he took this badly and was upset (black 50, 68-9).
39 He was having difficulties obtaining access to his daughter and this made him angry and frustrated (black 45, 61, 72-3). He had bought a mobile phone as a Christmas present for her and was frustrated because he could not decode the PIN number and get the phone to work. This appeared to weigh on his mind (black 44, 61-2, 73). He had saved up some money to buy other presents but just before Christmas there was a break-in at their home and the money was stolen. The worker was very upset about this and nearly reduced to tears (black 42, 43, 62).
40 Just before Christmas he received a letter from the workers compensation insurer dated 18 December (a Tuesday) notifying him that on 1 January, 26 weeks after his motor vehicle accident, his compensation payments would be reduced in accordance with the Act (blue 307). In fact the worker was entitled to the higher rate until 26 weeks after 3 September. The evidence does not establish when this letter was received. The worker's occupational therapist rang him on 19 December asking for a doctor's certificate (306) and there is no reference in her notes to the pending reduction in his payments. It appears that this matter was not raised with Dr Conolly on the 20th.
41 According to Miss Morrow the worker became very distraught and upset as a result of receiving this letter (44, 64), and because of the time of the year he could not speak to anyone at the insurance company to have the situation clarified.
42 However the Judge accepted the evidence of Ms Fuller, the human resources manager of the employer. She said that the worker, who was confused and upset, spoke to her about the letter. She clarified the position with the insurer and told him that another six months period at the higher rate began after the fall, and he should disregard the letter. She was satisfied that she had fully explained the situation to him (red 19). These findings cannot be disturbed.
43 The worker's reaction to these events placed a strain on his relationship with Miss Morrow. Constable Tessadri in her statement dated 15 February 2002 (blue 172), based on her notes of 30 December, stated that Miss Morrow told her that on the evening of 27 December, the day before the worker committed suicide she had told him "that she could not go on in the relationship and that she was thinking of leaving Sydney" (173). In her oral evidence Miss Morrow said she had been very upset but denied saying this. The constable was not called and the Judge accepted Miss Morrow's evidence. This finding cannot be disturbed.
44 Miss Morrow's own version of the events that evening was not much different. She said (black 46-7):
"A He sat down in the lounge chair and I said, why won't you tell me where you've been and he really didn't offer any information, had the same look on his face and I said to him, I said, you've gotta talk to me because it's very, very difficult to be in this situation where you're not going to give me any information and I said it's very stressful for me. I remember saying that to him. He just really didn't offer any information and he got up and he went into the second bedroom and he closed the door.