SIMEON WINES t/as BURONGA HILL WINERY v BOBOS

LOWER COURT Compensation Court JURISDICTION : LOWER COURT 3869/02 FILE NUMBER(S) : LOWER COURT McGrowdie ACCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41205/03 CC 3869/02

SHELLER JA SANTOW JA YOUNG CJ in EQ

SIMEON WINES LIMITED t/as BURONGA HILL WINERY v BOBOS Paul Andrew Bobos obtained a short-term period of employment with Simeon Wines. At this time, he was a member of the Bandidos Bikie Gang. On 30 January 2000, Mr Bobos was travelling by motorcycle from his place of abode to his place of employment when he was gunned down by assailants from a rival bikie gang, the Gypsy Joker Bikie Gang, on the Silver City Highway near Buronga. He survived the shooting, notwithstanding injuries to his chest and left arm. On 24 September 2000, Mr Bobos died by suicide, which was alleged to have resulted from the injuries he received on 30 January 2000.

The opponent, Rhonda Leslie Bobos, was the mother of the deceased. She claimed against Simeon Wines as a partial dependant under s26 of the Workers Compensation Act 1987 ("the Act"). Alternatively, if she was found not to be a dependant, the claimant sought funeral expenses under s27 of the Act.

Judge McGrowdie held that the journey on which the deceased was engaged at the time he was shot fell within s10(1) of the Act because the exclusion set out in s10(1D) if the personal injury resulted from a "medical or other condition of the worker" did not include a condition in life such as membership of a bikie gang. Further, his Honour held that the journey did cause or contribute to the injury. The trial Judge also found that the deceased's suicide was the consequence of his depressive illness rather than his free will and that the depression and its continuation had been precipitated by the events of the journey. However, Judge McGrowdie concluded that the opponent was not dependant upon the deceased and therefore recovery was limited to the funeral expenses totalling $4,398.

The claimant sought leave to appeal on the grounds that the trial Judge misdirected himself by holding that the phrase "other condition of the worker" within s10(1D) of the Act did not refer to the worker's mode of being and by holding that the journey in providing the occasion or opportunity for the shooting was sufficient to render the journey a material cause of the injury. It was further submitted that compensation was not payable because the worker's death was caused by an intentional self-inflicted injury within the meaning of the Act.

Held: per Sheller JA, Santow JA & Young CJ in EQ agreeing:

1. If the phrase "from the medical or other condition of the worker" in s10(1D) of the Act meant "from the medical or any other condition of the worker" it would have been expressed more simply by the words "from any condition of the worker". The word "medical" would have been superfluous.
2. If this expression was to be limited in some other way, the obvious limitation is found in the ejusdem generis rule which provides that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. Membership of the Bandidos Bikie Gang was not a condition of the same kind as a medical condition and therefore was not a condition of the worker within the meaning of that phrase in s10(1D).
3. If the injury did not result from a condition of the worker within the meaning of s10(1D) of the Act it was unnecessary to consider whether the trial Judge was in error in holding that for the purposes of the subsection the journey caused or contributed to the injury.

4. On the basis of various medical reports put before the trial Judge, his Honour reached the conclusion that the suicide was a consequence of the worker's depressive illness rather than an exercise of free will. This was a finding of fact. This appeal was against that finding even though dressed as an argument of alleged insufficiency of evidence such as to raise a question of law.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 cited.

5. The causal relationship between the injury and death in the case of suicide was comprehensively investigated and stated by the Court in Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629. The trial Judge's judgment supported the view that his Honour was alive to the tests that had to be applied and made a finding of fact accordingly.

Compensation Court Repeal (Transitional) Regulation 2003 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1988

Azzopardi vTasman UEB Industries Ltd (1985) 4 NSWLR 139 Chuch v Dugdale & Adams Ltd (1929) 22 BWCC 444 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 Hodlen Pty Ltd v Walsh (200) 19 NSWCCR 629 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353 R v Edmundson (1859) 28 LJMC 213 Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366

ORDER Application for leave to appeal refused with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41205/03 CC 3869/02

SHELLER JA SANTOW JA YOUNG CJ in EQ

Tuesday, 28 September 2004 SIMEON WINES LIMITED t/as BURONGA HILL WINERY v BOBOS Judgment 1 SHELLER JA:

Simeon Wines Limited on 19 December 2003 filed a holding summons for leave to appeal and on 19 March 2004 an ordinary summons for leave to appeal from a decision of McGrowdie ACCJ given on 15 December 2003. Pursuant to cl 7(1) of the Compensation Court Repeal (Transitional) Regulation 2003 which deals with appeals against awards of the Compensation Court after its abolition, the application has been treated as an appeal under s353 of the Workplace Injury Management and Workers Compensation Act 1988 and therefore an appeal against the decision on a point of law. 2 The opponent, Rhonda Leslie Bobos, was the mother of a worker Paul Andrew Bobos, who died by suicide on 24 September 2000. The opponent claimed against Simeon Wines, the deceased's employer as a partial dependant under s26 of the Workers Compensation Act 1987 (the Act). Alternatively, if she was not a dependant and the deceased left no dependants, the opponent claimed funeral expenses under s27 of the Act. 3 Section 14(3) of the Act provides: "Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury."

The deceased's death by suicide was alleged to have resulted from injuries he received when he was gunned down on the Silver City Highway near Buronga, New South Wales, on 30 January 2000 on his way to work for Simeon Wines.

Judge McGrowdie's decision 4 Judge McGrowdie stated the facts quite shortly. The deceased obtained a short-term period of employment with Simeon Wines. On 30 January 2000, a Sunday, he was travelling on his Harley Davidson motorcycle from his place of abode to his place of employment. He was wearing "his colours", a reference to the motorcycle apparel commonly worn by members of the Bandidos Bikie Gang, of which at the time he was a member. At about 7 pm, he was fired on by assailants from a car, which had pulled alongside him. He sustained gunshot wounds. An attempt was made to knock him from his motorcycle. The perpetrators of the crime were members of a rival bikie group, the Gypsy Joker Bikie Gang. He survived the shooting notwithstanding physical injuries to his chest and left arm. He was able to continue the journey on his motorcycle to his place of employment where he collapsed from his injuries. He was shortly thereafter transferred by ambulance and admitted to the Mildura Base Hospital. He had a chest tube inserted due to a haemopneumothorax. Surgery was performed. The bullet had entered his chest and left through an exit wound in his back. He was in intensive care for about a week before being discharged after a day in the general ward. His injuries could be described as nearly fatal. He required ongoing treatment. Shortly after the shooting he developed psychological or psychiatric symptoms. 5 At the time of the shooting the deceased was on temporary leave from the Bandidos because he had been experiencing personal difficulties as a result of his involvement with that gang and the concept of it. He had earlier attempted to take his life because of pressures he was feeling. The trial Judge said that clearly the shooting incident had its genesis in the deceased's association with the Bandidos Bikie Gang. 6 As a result of this incident, the deceased sought psychiatric treatment from Dr A Caracatsanis, a consultant psychiatrist. In his report dated 10 May 2000 addressed to the deceased's solicitors, Dr Caracatsanis referred to the gunshot injuries sustained by the worker and to the worker having developed symptoms of insomnia, loss of appetite, apprehension in noisy environments, suddenly having to dodge or move when hearing a loud noise, apprehension, recurring unpleasant fear, episodes of shaking, difficulties with concentration, flashback memories and a collection of other symptoms which the doctor attributed to the trauma. The doctor considered the deceased was probably suffering post traumatic stress disorder and could be developing diagnosable major depressive illness. The trial Judge observed that there was little dispute that the deceased developed a major depression. On 24 September 2000, aged 35, he took his own life by hanging himself. 7 The trial Judge found that at the time of his suicide the deceased had a number of concerns including the fact that the trial of the perpetrators of the shooting incident was shortly to begin and the deceased would be required to attend Court and give evidence. In addition to a normal apprehension in that regard, he was fearful of reprisal not only from the Gypsy Joker Bikie Gang but also from the Bandidos. He believed there existed a code whereunder a member of a bikie gang does not speak out against any bikie gang member to police or authority. Further, his leave of absence was about to expire requiring him to return to active participation with the bikie gang. There had been a failure of a de facto relationship in which he had been involved as well as the failure of a business. Some time back his grandfather had died and that had left its mark. 8 After obtaining leave from the Bandidos, the deceased took up residence with his mother in the Mildura area and was living there on the day that he sustained his injuries on his way to work. After the shooting and his release from hospital, being concerned for his own safety and also the safety of his mother he moved in with another person that he knew. 9 Judge McGrowdie regarded the issues in the matter to be as follows. Firstly, whether the journey on which the deceased was engaged at the time he was shot fell within the provisions of s10(1) of the Act in circumstances which would entitle the deceased to compensation. Secondly, if the answer to that was in the affirmative, whether the subsequent suicide of the deceased was a consequence of that injury giving rise to the claim for dependency death benefits. If so, the third issue was whether the then applicant mother of the deceased, with whom he was living at the time he was injured, was dependent upon him. 10 Section 10(1) of the Act provides that: "A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly."

There was no doubt that the deceased was injured on a journey to which the section applied namely, a daily or other periodic journey between the worker's place of abode and place of employment; s10(3)(a). 11 Section 10(1D) of the Act provides that: "Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury."

Simeon Wines submitted to the trial Judge that "other condition of the worker" could embrace a worker's "personal life condition" This, it was submitted, would include membership of the Bandidos Bikie Gang. It was submitted that membership of the Bandidos resulted in the injury to the deceased. The trial Judge was of the view that "other condition" would not include a worker's condition in life but rather was properly construed to be a reference to some underlying or immediate psychological condition of the worker akin to a medical condition. Reference to the Second Reading Speech accompanying the legislation when it was introduced, referred to matters such as heart attacks, strokes, and the like which might be suffered on the journey but which were causally unrelated to either the employment or to the journey itself. The trial Judge gave the example of a person who had an underlying coronary artery disease and by chance happen to suffer from a coronary occlusion whilst on the journey. His Honour said a mere temporal connection would not be sufficient. 12 The trial Judge went on to say that even if he was wrong in this interpretation of the words "other condition" he was satisfied nonetheless that the journey did cause or contribute to the injury. It was no coincidence that the shooting took place whilst the worker was on this particular journey. He said it appeared likely that this was not simply a chance shooting and that the appropriate opportunity was being awaited. It was the circumstances of the journey which provided the opportunity for the attack and therefore, the journey did materially contribute to the injury being suffered when it was. 13 His Honour was of opinion that the deceased's suicide was the consequence of his depressive illness rather than an exercise of his own free will and that the depression had been precipitated by the events of the journey and was a material matter in its continuation. His Honour regarded the worker's death as being a consequence of the injury, but was not satisfied that the mother's dependency was established. Judge McGrowdie did not regard the applicant as being dependent upon the deceased for support at the date of the worker's death. Thus, the claim was limited to funeral expenses of $4,398 in respect of the burial of the deceased worker to which the applicant was entitled pursuant to s27 of the Act.

Grounds of appeal 14 The proposed grounds of appeal by Simeon Wines were that the trial Judge misdirected himself

1. by holding that the phrase "other condition of the worker" in s10(1D) of the Act was a reference to some underlying or immediate psychological condition of the worker akin to a medical condition rather than the worker's condition in life;

2. by holding that the fact that the periodic journey within s10 of the Act provided the occasion or opportunity for the shooting of the worker was sufficient to render the journey a material cause of the injury; and

3. in relation to the causation question, in linking death by suicide to the journey injury, by asking whether the worker's suicide was the consequence of depressive illness flowing from the injury rather than by reference to clearly established principle. 15 If leave to appeal is granted, Simeon Wines sought orders that the appeal be allowed with costs, the award in favour of the respondent of $4,398 be set aside and in lieu thereof there be an award for Simeon Wines.

Ground 1 16 The personal injury received by the worker was received on a journey to which s10 of the Act applied. It did not result from a medical condition. Simeon Wines submitted that the word "condition" in the context of s10(1D) referred to a mode of being and that the condition which resulted in the personal injury was the deceased's membership of the Bandidos Bikie Gang. This membership led to his being shot as part of a bikie war. 17 If the phrase "from the medical or other condition of the worker" meant "from the medical or any other condition of the worker" it would be expressed more simply by the words "from any condition of the worker". The word "medical" would be superfluous. In argument, Simeon Wines suggested that the expression should be limited in some other way such as to a condition giving rise to a particular risk of injury. Such an argument involves acceptance that some limitation must be placed upon the natural meaning of "condition". If this be so, the obvious limitation is found in the rule of law generally known as the ejusdem generis rule or the rule noscitur a sociis. Lord Campbell in R v Edmundson (1859) 28 LJMC 213 at 215 enunciated the ejusdem generis rule as follows: "where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified". In my opinion, membership of the Bandidos Bikie Gang was not a condition of the same kind as a medical condition and therefore not a condition of the worker within the meaning of that phrase in s10(1D). Accordingly, I regard an appeal on this ground as having no prospect of success.

Ground 2 18 If the personal injury did not result from a condition of the worker within the meaning of s10(1D) of the Act it is unnecessary to consider whether the trial Judge was in error in holding that within the meaning of that subsection the journey caused or contributed to the injury.

Ground 3 19 This ground goes to whether compensation was not payable in respect of the worker's injury or death because it was caused by an intentional self-inflicted injury (s14(3) of the Act). Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 was an appeal from awards to the child of a deceased worker who had been injured at work and then committed suicide. Giles JA, in a decision with which both Meagher and Heydon JJA agreed, after referring to several English decisions including Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353 at 359 which involved inquiries into the deceased worker's sanity, said at 635 [24]: "… the inquiry into sanity was regarded as going to causation. Suicide, an intentional act of the worker, would break the chain of causation between the injury and the death unless the worker's mental state, described as insanity, was such that it should not be regarded as an intentional act. Hence the other requirements that the suicide be the result of the insanity and the insanity be the result of the injury, because without them even the 'unintentional' act would break the causal chain." 20 Giles JA referred to Church v Dugdale & Adams Ltd (1929) 22 BWCC 444 where Lord Hanworth MR described Marriott as "the locus classicus for … the guidance to be found in these cases" and said at 449: "The upshot of all that 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 a 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." 21 Giles JA continued at 636: "26 A test of whether the worker was 'suffering from mental derangement sufficient to dethrone his power of volition" was affirmed in Parry v English Steel Corporation Ltd (1939) 32 BWCC 272 in which it was said at 275 that it was beyond question that there could be "such a destruction of volition as may cause the suicide to be referable to what caused the destruction of the volition - possibly the accident - even though there is no insanity in the legal sense'." 22 At 637-8 Giles JA said that s14(3) of the Act was not easy to construe: "The word 'injury', used twice, must be used in two different senses, notwithstanding that it is defined in s4. On one view, the first injury is a physical condition short of death caused by an injury as defined ['personal injury arising out of or in the course of employment', s4(a)], and the injury as defined must not be an intentional self-inflicted injury. On this construction s14(3) says nothing about death by suicide in a case such as the present, because it could apply only if the 14 November 1994 injury was an intentional self-inflicted injury. On another view, the first injury is an injury as defined and the second injury is an act of injuring; this appears to have been the view taken in Bird v Australian Iron & Steel Pty Ltd [1979] 53 WCA (NSW) 227. On this construction s14(3) can arguably apply to death by suicide in a case such as the present, because the death of a worker by suicide could be said to be caused by an intentional self-inflicted act of injuring." 23 A little later on, after referring to March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Giles JA said at 639 (37): "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." 24 His Honour referred to what Lord Simon said in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 695 about duress as deflecting, without destroying, the will of one of the contracting parties and to the definition of duress by Lord Scarman in Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 400 as pressure amounting to the compulsion of the will of the victim. 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." Giles JA said at 639 [37]: "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."

At para 38 his Honour continued: "Although [s14(3)] 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." 25 Judge McGrowdie said (21): "In the present case, whilst it was not extreme physical complaints that drove the worker to suicide, it was in my view a consequence of his depressive illness rather than an exercise of his own free will. The depression had been precipitated by the events of the journey and was a material matter in its continuation. Accordingly, I would regard the worker's death as being a consequence of the injury." 26 Simeon Wines submitted that this conclusion was not supported by evidence and referred to the medical reports prepared by Professor Graham Burrows who, in a letter of 26 August 2003, said: "It would appear that this man has had previous depression prior to the shooting. It is well recognised that with a Depressive Disorder there is always a risk of suicide. That suicidal behaviour is predictably unpredictable. Suicidal behaviour can be impulsive. From the records I had the opportunity to peruse, I do not believe that it would be possible to say emphatically that he suffered from a psychosis and therefore it would not be called 'insane' and would not be under the Mental Health Act. There was no doubt that he suffered from a Major Depressive Disorder." 27 In a later letter of 11 September 2003 Professor Burrows said: "I agree that Mr Bobos suffered from Post Traumatic Stress Disorder and Major Depression, I note, that he had been depressed before the shooting took place on the 30th January 2001. He then became depressed following the shooting. I agree that he appeared to be making a recovery, and was receiving what appeared to be appropriate treatment. I agree that as a result of the disinhibiting and depressive effects of alcohol, this could have contributed to him taking his own life." 28 At trial, Simeon Wines' submissions examined in detail the circumstances at the time that the deceased committed suicide and the suggestion that he had put his affairs in order and planned his suicide. This would account for an apparent improvement in his mood. It was submitted that this material demonstrated that his suicide was premeditated and planned (that is deliberate and intentional) and that he was in command of his faculties. There was nothing to suggest that he was a suicide risk. Simeon Wines submitted that there was no evidence that the deceased's volition was overborne by any psychiatric condition resulting from an injury covered by the Act. At trial it appears that no oral evidence was given by the medical experts. Instead, various reports were put before the Judge and he reached the conclusion described in the passage from his judgment that I have quoted. This was a finding of fact. The appeal is against that finding, even though dressed as an argument of alleged insufficiency of evidence such as to raise a question of law; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. 29 This ground of appeal decides the question of whether the deceased's mother was entitled to the amount paid to her for funeral expenses. There is no point of principle involved. The causal relationship between injury and death in the case of suicide was comprehensively investigated and stated by the Court in Holdlen. Properly understood the passage in the trial Judge's judgment, which I have quoted, supports the view that his Honour was alive to the tests that had to be applied and made a finding of fact accordingly. This is evident from the fact that immediately before making this finding Judge McGrowdie had referred in his reasons for judgment to Holdlen and a decision of Judge Burke applying it. In the circumstances that I have mentioned I do not think there is sufficient doubt about the decision for leave to appeal to be granted on this ground.

Orders 30 In my opinion, the application for leave to appeal should be refused with costs. 31 SANTOW JA: I agree with Sheller JA. 32 YOUNG CJ in EQ: I agree with Sheller JA. **********

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