Vaccaro v MLC Limited

District Court of NSW|2015-11-11|Before: Mr CJ

Table of Contents Nature of case [1] - [7] Issues for determination [8] - [16] Evidence overview [17] - [18] Credibility and reliability of testimony [19] - [26] Procedural background and identification of submissions [27] Facts [28] - [169] (1) The policy and its terms [30] - [35] (2) Deceased's background circumstances and health [36] - [84] (3) Circumstances of the death of the deceased [85] - [95] (4) Police observations at the scene [96] - [104] (5) History of Zopiclone prescriptions in medical records [105] - [111] (6) Non-lethal Imovane overdose on 22 August 2003 [112] - [134] (7) Police investigation of the deceased's death [135] - [139] (8) Dr Chamberlain's letter dated 30 August 2010 [140] - [141] (9) Post-mortem and coronial toxicology test results [142] - [146] (10) First coronial inquiry and issued death certificate [147] - [148] (11) Initial claim under the policy and its rejection [149] - [158] (12) Second coronial inquest [159] - [163] (13) Subsequent claim under the policy and its rejection [164] - [169] Forensic psychiatric evidence of Dr Huntsman [170] - [213] Rejection of forensic pharmacology report [214] - [243] Issue 1 - Claimed attempted suicide/self-injury on 22/8/2003 [244] - [257] Issue 2 - Whether the deceased suicided [258] - [280] Issue 3 - Claimed inference of intentional self-inflicted injury [281] - [314] Issue 4 - Contribution of Zopiclone and alcohol to drowning [315] - [332] Issue 5 - Whether deceased's death was accidental [333] - [343] Issue 6 - Whether policy exclusions are engaged [344] - [355] Issue 7 - Date for calculating interest [356] - [364] Conclusion [365] Interest [366] Disposition [367] Costs [368] Orders [369] Appendix -

Nature of case

The plaintiff, Pasquale Vaccaro, brings these proceedings against the defendant, MLC Limited, claiming damages for alleged breach of a contract of insurance which the parties entered into on 3 April 1992.
The plaintiff claims that the alleged breach occurred when the defendant refused to pay the plaintiff's claim for the insured amount of $200,000 for accidental death cover. The plaintiff therefore also claims interest on the amount claimed to be due under the contract, pursuant to s 57 of the Insurance Contracts Act 1984 (Cwth).
The policy of insurance was between the plaintiff, his late wife, Ingrid Vaccaro ["the deceased"], and the defendant's parent company, the National Bank of Australia Limited. According to the relevant terms of the policy, described as the National Australia Accident Plan Policy Document, provision was made, subject to excluded events, for the payment of the insured amount in the event of the accidental death of any of the persons named in that policy.
On 31 January 2009, the deceased died as a result of drowning in a swimming pool at her home. At that time the deceased was named as a person to whom the policy applied.
Post-mortem toxicology tests performed on samples of the deceased's blood revealed the presence of 0.217g/100mL of alcohol, 2.9mg/L of Ibuprofen, and 1.2mg/L of Zopiclone. There is no dispute that the drug Zopiclone is a non-benzodiazepine prescription sleeping drug with the proprietary name Imovane. Those names are used interchangeably in these reasons.
There was no reliable evidence that the substances identified in the preceding paragraph, either individually or in combination, were at lethal levels. The defendant argued it should be inferred that the deceased had either suicided, or alternatively, that she had intentionally inflicted injury to herself, these being excluded events under the policy.
The defendant's contentions were in part based on a previous hospital admission of the deceased, almost 6 years earlier, on 22 August 2003, for an overdose of Zopiclone in combination with alcohol, which whilst at first thought to be an attempted suicide, had been clinically and medically assessed as being an accidental overdose, without suicidal intent.

Issues for determination

By paragraph 10 of its amended defence, which traversed paragraph 10 of the plaintiff's statement of claim, the defendant admitted that on 13 December 2012, the coroner made the finding: "That the cause of death was accidental drowning with the antecedent cause being excessive alcohol and medication consumption". That cited finding of the coroner does not bind the parties or the Court in this litigation, as the defendant made clear during the course of the hearing: T25.50; T26.6.
By paragraph 13 of its amended defence filed on 28 October 2015, the defendant pleaded: "… the defendant says that the circumstances leading to the deceased's death do not fall within the insuring clause of the accidental death benefit and in the alternative that the claim is excluded as the death resulted from suicide, intentional self-inflicted injury, and/or being under the influence of drugs not prescribed by a Medical Practitioner." [Emphasised text as in the amended defence]
The use of the loosely ambiguous term "and/or" has been authoritatively described elsewhere as the "bastard conjunction" that is to be regarded as being unacceptable in pleadings due to its vagueness and scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716. The applicability of the matters raised by that cited portion of the pleaded defence will depend upon an objective construction of what the parties intended by their contract: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165. The contract itself does not use the "and/or" formulation.
Neither the original nor the amended defence make any reference to ingestion by the deceased of the drug Ibuprofen. I therefore propose to treat the references in the evidence to that drug as being irrelevant to the issues calling for decision. There is no evidence that the post-mortem finding of Ibuprofen was at levels that could have caused either death or injury. There is no evidence that Ibuprofen was a drug that was on current prescription to the deceased at the time of her death.
Neither the original nor the amended defence make any reference to the deceased's ingestion of alcohol, or any form of that substance. There was no evidence that alcohol should be considered as being a drug within the meaning of the policy wording.
Notwithstanding the omission of any reference to alcohol in the filed defences, having regard to the way the parties have approached the issues in the litigation, the ingestion by the deceased of alcohol before her death was clearly a relevant consideration to the pleaded defences of alleged suicide and alleged self-inflicted injury. I therefore propose to treat the evidence of the deceased's blood alcohol concentration as being relevant to the issues to be decided, despite there being no reference to alcohol in the filed defences.
Following on from those matters, a review of the pleadings, the evidence and the submissions, identifies the following issues that arise for determination in the following convenient order: Issue 1 - Whether on 22 August 2003, the deceased's combined ingestion of Zopiclone and alcohol was because of a suicide attempt, or alternatively, a self-inflicted injury. I have concluded that each of those questions should be answered in the negative. My reasons for this conclusion appear at paragraphs [244] to [257] below; Issue 2 - Whether it should be inferred, that on 31 January 2009, the deceased had suicided. I have concluded that question should be answered in the negative. My reasons for this conclusion appear at paragraphs [258] to [280] below; Issue 3 - Whether it should be inferred, that on 31 January 2009, the actions of the deceased in ingesting Zopiclone and alcohol amounted to an intentional self-inflicted injury. I have concluded that question should be answered in the negative. My reasons for this conclusion appear at paragraphs [281] to [314] below; Issue 4 - Whether, on a proper construction of the policy, the deceased's ingestion of alcohol, or Zopiclone, either individually, or both together, within the meaning of the policy, comprised "any other contributing cause" to her death by drowning. I have concluded those questions should be answered in the negative. My reasons for this conclusion appear at paragraphs [315] to [332] below; Issue 5 - Whether, on a proper construction of the policy definition of accidental death, the circumstances of the death of the deceased were accidental, and without other relevant contributing cause. I have concluded that those questions should be answered in the affirmative. My reasons for this conclusion appear at paragraphs [333] to [343] below; Issue 6 - Whether the relevant policy exclusions of suicide or intentional self-inflicted injury are engaged by the circumstances of the deceased's death so as to defeat the plaintiff's claim. I have concluded that question should be answered in the negative. My reasons for this conclusion appear at paragraphs [343] to [355] below; Issue 7 - If it is determined that the deceased's death was accidental, without any other relevant contributing cause, for the purpose of calculating interest, by what date should the defendant be taken to have been in breach of its contractual obligation to the plaintiff. I have concluded that by 25 March 2013, the defendant was in breach of those obligations. My reasons for this conclusion appear at paragraphs [356] to [364] below.
Although the defendant has admitted the deceased died by drowning, the plaintiff carries the onus of proving the death was accidental. Once the plaintiff establishes that fact, the defendant carries the onus of proving, on the balance of probabilities, the factual basis for the operation of the claimed policy exclusions.
Although the proceedings involve a claim for damages requiring the resolution of a causation question, the causation provisions of s 5D of the Civil Liability Act 2002 do not apply to this case because this is not a claim involving negligence. Furthermore, the operation of s 3 of that Act, excludes the application of that Act to a claim for damages under an insurance policy in respect of the death of a person insured.

Evidence overview

The plaintiff tendered a voluminous bundle of documentary exhibits: Exhibit "A", pp 1 - 418. The defendant tendered its own bundle of exhibits: Exhibit "1", pp 1 - 207. There was considerable overlap within those bundles. Oral evidence was given by the plaintiff, and by Dr Stephen Huntsman, who provided a forensic psychiatric opinion about the circumstances and the cause of the deceased's death, based on his analysis of contemporaneous documents: Exhibit "A", pp 83 - 87; T45 - T99. Dr Huntsman's opinion pointed to errors of factual assumption in the report of the coroner's pathologist who had carried out the autopsy on the deceased. The initial coronial finding, which had been conducted only on a review of the papers, was that the deceased had suicided. A second coronial finding did not adopt that finding, and reached the conclusion of accidental drowning, as cited at paragraph [8] above.
The plaintiff tendered a letter from the deceased's treating general practitioner, Dr Nigel Chamberlain: Exhibit "A", pp 81 - 82. The plaintiff had served on the defendant a notice pursuant to s 63(1) of the Evidence Act 1995 regarding Dr Chamberlain's unavailability to give evidence at the hearing as he had unfortunately encountered ill-health, and because he was in a coma at the time of the trial.

Credibility and reliability of testimony

The plaintiff was extensively cross-examined. In my assessment, his evidence was not shown to be wrong or inherently improbable in any material way. There were some minor inconsistencies in his oral evidence on some matters of detail when compared with some details within the contemporaneous statements attributed to him in other documents. On considering his explanations, I do not consider those matters to have adversely affected the plaintiff's credibility or the reliability of his evidence.
The only direct challenge the defendant made to the plaintiff's credit was the assertion that his explanation for an additional item of factual detail provided in his oral evidence, which was not included in his contemporaneous statement to the police, was something that he had thought-up since his wife's death.
The plaintiff denied that assertion of recent invention (T154.47 - T154.49), and explained that on the evening of his wife's death, when his initial statement was taken by the attending police, he had understood that he was only being asked to deal with formal matters, and the statement was composed by the police officer in question: T152.46 - T153.19.
The plaintiff also explained that at the time he gave that statement to the police, he was not focussed on seeking to prove anything, nor was he looking to ensure that every detail in that statement was one hundred per cent correct, as understandably, he was not in that frame of mind. He said, and I accept, that at the time, he was preoccupied with dealing with the issue and the consequences of his wife's death, and with organising the funeral, noting that family members were coming from interstate. I accept that the pressing requirements of those emotionally laden circumstances were a significant preoccupation for him at that time: T153.21 - T153.26.
In my assessment, the plaintiff gave credible and reliable explanations on the matters of detail on which he was cross-examined. Those matters will be referred to where relevant in the course of my reasons in the context in which they arise for analysis.
The plaintiff rejected the defendant's attack on his credit in the form of a veiled suggestion that something untoward must have occurred between himself and the deceased on the day in question in order to cause her to take an overdose of Imovane: T147.36 - T147.42. The terms of that question invited the plaintiff to express an opinion on that matter. In response, the plaintiff stated that to his knowledge, there was no reason for the deceased to take an overdose, and there were no triggers that he knew of, which in his opinion, would have caused her to take an overdose of medication: T148.5 - T148.8.
Having reviewed the evidence as a whole, I have concluded without reservation, that I should accept the plaintiff's evidence on all matters placed in contention by the defendant. I considered the plaintiff to be a truthful witness, whose evidence could be relied upon when determining the critical issues in dispute.
No challenges were made to the credibility of the expert testimony of Dr Huntsman. No evidence was called to contradict the opinions which he had stated in his report. I considered that Dr Huntsman's opinions have been satisfactorily explained with cogent reasons in his oral evidence.

Procedural background and identification of submissions

The hearing of the evidence took place on circuit in Lismore on 9, 10 and 11 November 2015, following which the delivery of oral submissions was stood over to be heard in Sydney on 22 January 2016. In the meantime, on 9 December 2015, the parties each forwarded written submissions. On 22 December 2015, the parties forwarded written submissions in reply. Those submissions were supplemented by oral addresses delivered in Sydney on 22 January 2016. On 6 May 2016, there was a further listing to identify a matter of evidentiary analysis concerning prescription medications which was not covered in earlier submissions, and which, in a slightly modified form following further submissions, appears as the Appendix to these reasons. The analytical utility of that tabulation was addressed by further written submissions received from both parties on 13 May 2016.

Facts

Unless otherwise qualified, the paragraphs that follow set out the matters of fact that serve as the framework for ultimately determining the issues calling for decision.
In convenient sequence, the relevant factual topics concern, (1) the relevant terms of the policy; (2) the deceased's background circumstances and health; (3) the circumstances of her death; (4) subsequent observations by investigating police at the scene; (5) the medical history of prescriptions for Zopiclone; (6) a prior non-lethal episode on 22 August 2003 comprising an overdose of Zopiclone; (7) the police investigation into the circumstances of the death; (8) a letter dated 30 August 2010 from the deceased's general practitioner, Dr Chamberlain; (9) post-mortem toxicology results; (10) the first coronial finding where an inquest had been dispensed with; (11) the plaintiff's initial claim under the policy and the defendant's rejection of that initial claim; (12) the result of a further coronial inquest; (13) the plaintiff's subsequent claim under the policy and the defendant's rejection of that subsequent claim, following which these proceedings were instituted.

(1) - The policy and its terms

The policy in question was issued by the defendant on 3 April 1992. That policy continued to remain in force at the time of the deceased's death. By 23 September 2003, the policy included cover for an accidental death benefit in the increased amount of $200,000 in respect of each of the lives insured: Exhibit "A", pp 5 and 48.
The policy document defined the term accidental death as follows: "Accidental Death: means death as a result of the accidental bodily injury, without any other contributing cause, which results in your death within 365 days of the injury occurring. Loss of Use: means an accidental bodily injury, without any other contributing cause, which results in your total and permanent loss of use of one or more limbs or the sight of one or both eyes." [Exhibit "A", p 2]
The policy document relevantly contained defined exclusions from liability to make payments for accidental death or loss resulting from first, "suicide or intentional self-inflicted injury" secondly, "being under the influence of drugs except when prescribed by a registered physician" and thirdly, "pre-existing Loss of Use injuries or conditions": Exhibit "A", p 3.
The defendant did not argue for a policy exclusion to be applied based on the post-mortem finding that the deceased had the drug Ibuprofen in her blood, or that she may have been under the influence of that drug. There was no evidence that drug had been prescribed to the deceased by her doctor (Exhibit "1", p 10), and there was no expert evidence as to what, if any, the influence of that drug would have been on her thinking and behaviour. On the state of the evidence on that matter, no meaningful inferences can be drawn concerning the deceased's ingestion of that drug: Strinic v Singh [2009] NSWCA 15.
The defendant must therefore rely upon the other stated exclusions of suicide or intentional self-inflicted injury in seeking to avoid the plaintiff's claim under the terms of the policy.
In the course of submissions it was stated that the terms of the policy in question in this case have not previously been construed by a court.

(2) - Deceased's background circumstances and health

At the time of her death, the deceased was aged 59 years. The plaintiff and the deceased married in rural NSW in 1978. Their only child, a son, was born in 1979. Following his birth, to use the plaintiff's description, the deceased was "emotionally uncomfortable" for a couple of years: T103.32 - T103.39. This was described elsewhere in the evidence as comprising severe post-natal depression that occurred 24 years earlier: Exhibit "1", p 51. There is no evidence to suggest that the deceased's earlier experience of post-natal depression had continued long-term.
In the course of the birthing of her son, the deceased experienced some physical injuries, and for a time she was in pain. There was a marital separation for about 11 months in 1981. Following a reconciliation, which then continued until the time of the death of the deceased, the plaintiff described the deceased as being "a lot better" emotionally: T104.1 - T104.33.
The plaintiff and the deceased moved to Ballina in 1985, where they opened a pizza shop and restaurant, which the plaintiff still continues to operate: T104.38 - T104.49. That business later expanded to include premises in Lismore. In the first two and-a-half years of the operation of the business, the deceased took an active part in the various aspects of its operation. Thereafter, in part due to the deceased's visual difficulty in driving at night, she continued to work in the administrative side of the business, carrying out office and book work from home. She had previously worked as a bookkeeper: T105.1 - T105.16.
The deceased was interested in ceramics, art work, painting, sewing and knitting. She had a dedicated room in the house for those interests and activities. She occasionally visited her family who resided interstate on the Gold Coast and she related well to the plaintiff's family who resided in Victoria. The plaintiff described the deceased as a happy person: T105.27 - T105.38. The clinical records of the deceased's 2003 hospitalisation for management of a Zopiclone overdose in combination with alcohol intoxication, indicate that at that time, the plaintiff had told a triage nurse that the deceased was always a combative person, and that she has been difficult to live with: Exhibit "1", p 51.
In cross-examination, the plaintiff was asked to explain what that statement meant. He answered by reference to the deceased's behavioural experiences in the context of her unusual menstrual cycle, as follows: "Q. What did you mean by that? A. Well, prior to the menopause, she was unfortunate that on her monthly cycle she would have her periods three weeks out of four, so and she suffered the period issue more than most women. It used to affect her, she used to get a little bit belligerent, a little bit agitated with things, she was uncomfortable, but then that one week was heavenly bliss. And I always looked forward to that week." [T123.36 - T123.42]
I accept the plaintiff's account as cited in the preceding paragraph. That evidence was not inherently improbable, nor was it contradicted by other factual or medical evidence.
In 2001, the deceased began to experience symptoms of menopause which, according to the plaintiff, had "hit hard" for her: T105.44. Her medical records show that she had been prescribed hormone replacement therapy ["HRT"] for a time: Exhibit "A", p 66.
The plaintiff described the deceased as having experienced hot sweats from menopause two to three times per night for some considerable time, which continued up until the time of her death: T106.4. The deceased encountered sleeping difficulties associated with menopause. After ceasing HRT because of concerns over its possible carcinogenic effects, the deceased started to drink wine on a daily basis, initially in increasing quantities it seems, and in that regard, she had told the plaintiff that it helped her to "get through the day" and to sleep better at night: T106.1 - T106.35.
On about 18 August 2003, a sentinel event occurred with regard to the deceased's emotional wellbeing, in that her father, to whom she was very close, died at the age of 79 years: T119.41.
Until the death of her father, the plaintiff's perception of the deceased from an emotional perspective was that she was fine. His perception was that after her father's death she experienced significantly increased problems with sleeping: T107.30. She regularly took prescription sleeping tablets in order to assist with those sleeping problems: T106.40 - T107.23. The pattern of prescription of those tablets both before and after the death of her father, appears in the Appendix to these reasons.
In the period that followed immediately after the death of her father, the deceased had not slept for a period of about 3 days / 4 nights: T107.31. That occurred against a background of earlier sleeping difficulties. On 21 August 2003, after returning to their home after visiting the Gold Coast, the plaintiff and the deceased went to sleep. When the plaintiff woke the next morning, he panicked when he found that he was not able to rouse the deceased. He then called the practice of Dr Chamberlain, their general practitioner. Dr Nicoll, who was also a member of Dr Chamberlain's general practice, arranged for the attendance of an ambulance, following which the deceased was taken to Lismore Hospital, where she remained overnight: T108.10 - T108.35.
Initially, Dr Nicoll had made a handwritten annotation on the deceased's medical records to the effect the deceased had taken an overdose of Imovane (Zopiclone 7.5mg) in a suicide attempt: Exhibit "1", p 69. Dr Nicoll had faxed a referral document to the hospital at 18:13 hrs on 22 August 2003 with the above annotation, along with some notes of observations of the deceased, describing her as being ataxic, confused, disoriented, drowsy and "smells of EtOH": Exhibit "A", p 69.
The annotation by Dr Nicoll of an assumed suicide attempt by the deceased was not borne out by Dr Chamberlain's subsequent evaluation of the circumstances, as set out in his letter dated 30 August 2010, which I accept as being an accurate account of the events: Exhibit "A", pp 81 - 82. That said, without intending any criticism of Dr Chamberlain, I have placed little weight on the elements of his report that necessarily involve speculation: T101.40 - T102.19. However, significant weight should be given to his clinical judgment and his related conclusions.
The suggestion of a suicide attempt by the deceased on 22 August 2003 was not borne out by Dr Powditch, the psychiatric registrar who had examined and assessed the deceased just prior to her discharge from Lismore Hospital. Dr Powditch made a notation in the hospital records to the effect that on her examination, the deceased was pleasant, without suicidality on her part, and that she was euthymic, without obvious depressive symptoms. The clinical impression formed by Dr Powditch was that of accidental overdose of Imovane, without suicidal ideation, however, at that time a query over alcohol abuse was noted, and the estimated overall consumption of alcohol at that time was stated to be a cask of wine and a bottle of whisky per week: Exhibit "1", p 57.
In view of the circumstances of the deceased's death, almost 6 years after that 2003 hospital admission, and in view of the defendant's assertion that the deceased's death on 31 January 2009 was due to either suicide or intentional self-inflicted injury, the events surrounding that 22 August 2003 hospital admission warrant closer analysis.
This is so because of the defendant's submission that those circumstances formed a possible basis upon which inferences could be drawn concerning the deceased's state of mind and the defendant's claim that her intentions in the events that led to her death, were either suicidal, or involved an intentional self-infliction of injury.
I shall return to a more detailed consideration of those questions at a later point in these reasons, under topic heading (6) identified at paragraph [29] above, after reviewing the factual circumstances of the deceased's death, and her medication history.
In the interim, I observe that the 2003 hospital admission for the overdose was against the background of the deceased having sleeping difficulties for the previous two weeks, and she had been sleep deprived in the previous days: T123.25.
In the analysis of the events of August 2003, I consider it significant that Dr Chamberlain had the contemporaneous advantage of using his professional experience of the deceased as his patient over the course of 20 years: T122.29. Dr Chamberlain was of the view that other than the events of August 2003, there was no other event that could be interpreted as a suicide attempt on the part of the deceased, and he was of the view she had not expressed suicidal ideas: Exhibit "A", p 81.
Furthermore, having considered the records of the deceased's hospital admission in August 2003, Dr Chamberlain did not contradict the plaintiff's denial that his wife had attempted suicide at that time: Exhibit "A", p 81. The observations of Dr Powditch, as noted at paragraph [49] above, therefore take on some significance in this analysis.
Given Dr Chamberlain's clinical advantage for making his stated observations, which was also based on him contemporaneously interviewing both the plaintiff and the deceased, I consider that his recorded view that the events of August 2003 did not involve a suicide attempt on the deceased's part, where his view was obviously based on his clinical acumen, should be given considerable weight: Fox v Percy [2003] HCA 22; 214 CLR 118, at [31].
The plaintiff was cross-examined as to the content of his discussion with Dr Chamberlain following the deceased's 2003 hospital admission. The questioning on that topic centred around whether the medication overdose taken by the deceased would have had a lethal effect. The plaintiff's impression of that conversation was that Dr Chamberlain, who according to the plaintiff, did not in any way make light of the issue, considered that if the deceased had been left alone on that occasion, she would most probably have woken up after a good night's sleep: T122.49; T123.9. That evidence was not tested or challenged through questions asked in cross-examination of Dr Huntsman. I conclude that if the reasonableness of that opinion by Dr Chamberlain was truly contentious, it would have been the subject of such a challenge by questions directed to Dr Huntsman.
The text of Dr Chamberlain's historical letter of explanation will in due course be set out in full, and assessed in the context of reviewing the coronial processes that followed the deceased's death.
In the meantime, it is relevant to record some other salient aspects of the deceased's health history, including her physical health.
The deceased occasionally suffered from vertigo: Exhibit "1", p 159; T110.19; T111.21; T146.8; T146.19. She also suffered from migraines: T110.39. Apart from symptoms associated with menopause which have already been described, the deceased had been having difficulty with a frozen right shoulder syndrome. This caused her problems for which she had seen an orthopaedic surgeon. She had previously been treated for left shoulder problems. She had received a cortisone injection into her left shoulder. At the end of 2008, there was a plan for a manipulation of the affected shoulder under general anaesthetic with a further steroid injection: Exhibit "1", pp 89; 99. There was also discussion over a plan for a shoulder arthroscopy and chondroplasty, had her death not intervened: Exhibit "1", p 91. The deceased had been prescribed Tramal, an opiate, to manage the pain she was experiencing from her shoulder condition.
After the deceased had drowned, the general practitioner, Dr Chamberlain, gave an opinion that her shoulder problems would not have prevented her from using her arms or shoulders in an endeavour to save herself from drowning: Exhibit "A", p 82.
The deceased had a history of depression which had followed the death of her father. I accept that her depression was not at that time immediately or fully apparent to the plaintiff, who within the space of 3 years, had himself undergone a series of bereavements following the deaths of his grandmother, his father, and brother, in each of the successive years. The plaintiff's own grief reactions did not arise in respect of those losses until some months had passed. He said that he had little experience of other people going through depression: T109.30 - T109.35.
The defendant pointed to a portion of the deceased's medical notes kept by Dr Chamberlain where, on 15 November 2005, it was noted the deceased had some depression and probably needed an antidepressant: Exhibit "1", p 18. In my view, that reference was taken out of context by the defendant, as it was a query. The full notation reads: "I think she neds (sic) to se (sic) a psych and perhaps consider antidepressant … She needs a psych review and proably (sic) some meds - an antidepressant send (sic) perhaps a mood stabiliser I would like her to see Jill (Sloan) and consider a SSRI".
The inference arising from that note, and from the evidence as a whole, is that Dr Chamberlain did not consider the deceased's depression to warrant him actually prescribing an antidepressant for her, or referring her to a psychiatrist at that time, noting that the psychologist to whom the deceased had been referred, could not have herself prescribed such a drug to the deceased: T60.8.
The defendant also pointed to a notation in the police narrative: "Through speaking with the deceased (sic) husband it was revealed that the deceased suffered from depression and took medication consisting of Imovane 7.5mg to assist her with sleep": Exhibit "1", p 160. It appears that statement is a conflated summary of limited probative value: Mason v Demasi [2009] NSWCA 227, at [2].
What that note indicates is that the deceased had in the past suffered from depression. That was not a reference to a medical diagnosis. It was a lay observation by the plaintiff to which limited probative value should be attached. Furthermore, the Imovane was not prescribed for depression.
In light of Dr Huntsman's discussion about depression and the foundations for its medical diagnosis generally, the plaintiff's lay evidence as to the nature and the extent of the deceased's depression must be considered with caution as such observations did not amount to a medical diagnosis. I accept Dr Huntsman's evidence that the reference by the deceased's general practitioner to the deceased having been depressed was not supportive of a diagnosis of the DSM V formulation of a major depressive illness: T51.36. No presumption of continuance of symptoms arises as to the fact or the extent of the deceased's symptoms of depression in that time, given that the symptoms were liable to fluctuate.
The plaintiff described the deceased's demeanour in the period 2003 to 2009 as having a lot of problems relating to grieving. He described those problems as not having so much of an immediate impact, but of becoming deeper after the first year following her father's death, and then starting to worsen into the second year, and that this had coincided with the deceased starting to drink (alcohol) more because she wasn't sleeping as much: T109.4 - T109.12.
In the years 2004 / 2005 the plaintiff discussed his concerns over the deceased's depression with the family doctor: T109.40. At one stage, a consultation was arranged for the deceased to see a psychologist but she did not fully pursue that course: T109.20.
The psychologist who saw the deceased took a note to the effect: "can't understand why can't let go" in relation to the death of the deceased's father: Exhibit "1", p 80.
In 2005, at around the time the deceased was referred to the psychologist, the plaintiff had observed that the deceased was "hard headed" and would not take no for an answer: T127.32 - T127.50. He agreed she was at times sad, but not every day, and he agreed that once in a while he would see her crying, but not regularly: T128.1 - T128.10. The psychologist's summary recorded a slightly different history of the deceased experiencing sadness every day: Exhibit "1", p 80. In light of Dr Huntsman's evidence explaining that it is not uncommon to see variations in history obtained at different times (T69.2 - T69.10; T96.33 - T96.41), I therefore do not see this as a matter that necessarily adversely impacts on the plaintiff's credit as a witness.
On 15 November 2005, when Dr Chamberlain referred the deceased to the psychologist, Ms Sloan, the referral letter described the deceased as being an unusual personality who had difficulty talking about her feelings. Dr Chamberlain thought that the deceased had some big issues in her life. At that time, these were her father's death, her hysterectomy, and more recently, a left shoulder injury: Exhibit "1", pp 78 - 79. I consider that the content of Dr Chamberlain's clinical assessment, as set out in that letter, should carry great weight in any analysis of the deceased's state of mind in the period leading up to her death. Significantly, he did not refer to a diagnosis of depression at that time.
The records of Dr Chamberlain contained correspondence from the deceased, such as the letter she sent to him dated 18 September 2005 indicating, that she did not like talking about private things, and that she was to a degree occupied with concerns about her health: Exhibit "1", p 76.
On 23 October 2005 the deceased wrote another letter to Dr Chamberlain, asking for some more Serepax, although "they take longer to kick in than the immovane (sic) (about 2 hours) but I guess they are better since you gave them to me": Exhibit "A", p 334. At that time, the deceased indicated she slept 5 - 5.5 hours with Serepax instead of 3 - 4 hours with Imovane.
The Appendix shows that Dr Chamberlain had obliged the deceased's request on 24 October 2005 with a prescription for Serepax: Items 36 to 38 in the Appendix.
On 16 November 2005, Dr Chamberlain had occasion to write a report to an insurance company concerning the deceased's longstanding, but more recently improving, frozen left shoulder problems. In that letter, he noted the deceased suffered from a degree of depression and anxiety, which has made it harder for her to cope with her frozen shoulder problem: Exhibit "1", pp 84 - 85. Dr Chamberlain's reference to depression in that context was qualified by the term degree. That evidence of the nature of the deceased's depression must be read in light of Dr Huntsman's explanatory analytical evidence on diagnostic matters following his consideration of the deceased's medical records. Dr Huntsman did not see evidence in those records to support a clinical diagnosis of major depression: T48.11; T61.8.
On 1 December 2005, Ms Sloan saw the deceased for a brief session. At that time, the deceased appeared to have been resistant to a full assessment. Ms Sloan considered the deceased was experiencing an intense prolonged grief reaction to her father's death, but that was stated by Ms Sloan to be a limited view: Exhibit "1", p 83.
At that time, Ms Sloan noted the deceased gave a history of being sad every day, and crying, being teary and upset due to multiple triggers, being unable to talk about those problems, sleeping poorly, and being anxious when on her own at night. Ms Sloan recorded a history of the deceased taking half a tablet of Serepax: Exhibit "1", p 80. At that time, Ms Sloan thought the deceased was displaying signs of depression, anger, and a very poor sleep pattern: Exhibit "1", p 81. Ms Sloan noted the deceased was in her view exhibiting extreme avoidance of emotional pain: Exhibit "1", p 82. When Dr Huntsman was asked to consider that history, he stated that this was consistent with the deceased suffering from pathological grief at that time: T62.33 - T62.45.
The plaintiff observed that, nevertheless, in between episodes of what he referred to as depression, the deceased still managed to experience happy times. The plaintiff said that her depression was reportedly triggered by dreams about her father, to whom she was very close: T109.43 - T109.50. The plaintiff's observation of the deceased having happy times in between the other episodes was also consistent with Ms Sloan's notes which recorded the deceased's history as "fun - cooking, animals, like my life": Exhibit "1", p 80.
The plaintiff's perception was that from 2005, and until the deceased's death, he had made adjustments to his own schedule in order to work less hours so that he could spend more time with the deceased. They were planning to buy a flat so that she would be less troubled by vertigo as this was a problem for her when descending stairs, and she had expressed the anticipation of wanting a grandchild or grandchildren from her son. The plaintiff's perception was that the deceased was getting over the grief of losing her father, and that she was learning to deal with those circumstances: T110.4 - T110.30. The plaintiff pointed to the recency of the deceased's uneventful colonoscopy test on 21 January 2009, just 10 days before her death (Exhibit "1", p 90), and of having undergone some recent dental work (T134.47), as being indicative of a positive outlook on life on the deceased's part, this being inconsistent with an underlying suicidal intention.
In summary, the plaintiff's description of the deceased's manifested physical problems before her death were significant vertigo on descending stairs (T111.25), with a past episode of fainting on a toilet floor during an outing (T111.35), a painful frozen shoulder condition (T110.36; T111.19), migraines, severe menopausal hot sweats three to four times per night, and during the day, which at times had led to her going to sit at the edge of the pool in order to cool her legs in the water (T110.41). Significantly, she also suffered from severe insomnia which had been a problem for the deceased since the advent of her menopause: T112.17. The deceased regularly took Imovane for her sleeplessness associated with menopause: T112.21 - T112.26.
Significantly, between 2003 and the deceased's death in 2009, there were no other instances of medication overdose: T123.19. The plaintiff stated, and I accept, that the deceased had never discussed with him any thoughts she may have had about ending her life (T116.22), and at the time, he did not think she was suffering from depression: T130.5. The plaintiff stated his perception was that, from 2005, following adjustments he had made to his work schedule, he and the deceased were getting on better, "there was an upscale to her conditions emotionally" and she was getting over and dealing with the grief of losing her father: T110.4 - T110.30. There was no history or record of prescription of medication for treatment of depression that would tend to contradict the plaintiff's impressions on those matters. That is a matter of some significance given that Dr Chamberlain was well regarded by Dr Huntsman (T48.17 - T48.19), and from the content of his patient file, it appears that he was obviously a caring doctor.
The plaintiff stated that in the period of time that was closer to the death of the deceased, she was in the habit of drinking 3 - 4 glasses of wine per day: T140.47. The defendant argued this was indicative of an intentional infliction of self-injury on the part of the deceased: T163; T169.33. That argument will be considered in due course in connection with Issue 3, after setting out the other relevant facts. In the meantime, I observe that the size of the glasses of wine was not explored in the evidence, the likely blood alcohol levels that would have resulted from that level of consumption was not explored in the evidence, and there was no evidence that the consumption of alcohol at that rate constituted alcohol abuse, either as an isolated instance, or as a pattern.
I now turn to a consideration of the circumstances of the deceased's death.

(3) - Circumstances of the death of the deceased

Shortly after 6.35pm on 31 January 2009, the plaintiff found that the deceased had drowned in the swimming pool at the family home: Exhibit "1", p 159. Despite the efforts of the plaintiff, and some neighbours who attended when the plaintiff had raised the alarm by calling out for help, and despite the efforts of the ambulance personnel who had arrived at the scene at about 6.37pm, she could not be revived.
The previous evening, the plaintiff and the deceased were in bed watching television. The plaintiff believes that he had fallen asleep at around 2.30am. He said that when he awoke at around 8.00am, the deceased was already downstairs watching television: T112.28 - T112.44.
At about 10.30am, the plaintiff and the deceased had breakfast together, following which they watched some morning television. The plaintiff then went upstairs to work on his computer in order to install a new scanner. After some hours, he proceeded to lie down and he went to sleep for a few hours. He attributed his need to do so at that time as being due to tiredness on account of having previously taken some anti-histamine medication.
In the last conversation the plaintiff had with the deceased before he went upstairs, he said that she told him she had only slept for 2 hours the previous evening, despite having taken 2 sleeping tablets. In that conversation, he said that the deceased had also complained to him of shoulder pain: T113.11 - T113.15. Before going upstairs, the plaintiff had again showed her how to programme the recording function on their television: T113.40 - T113.49.
In his statement to the police, the plaintiff stated that at about 5.30pm, whilst resting, he thought he had heard the sound of a door closing. On rising, about an hour later, initially he did not see his wife. He noticed that the house had already been closed up for the night, and that the kitchen curtains were closed. On opening those curtains, he saw his wife's body laying face down in the pool. He ran to and entered the pool, lifted her from the pool, and commenced CPR by the pool side. In those events he had called out to neighbours, who called for an ambulance. The neighbours then assisted with attempts at CPR. When the ambulance officers arrived they took over the CPR, and they administered an electric shock from a defibrillator in an unsuccessful attempt to resuscitate the deceased. The police were called and they arrived at the scene some 30 minutes later: Exhibit "1", pp 92 - 93; T115.1 - T115.34.
In his oral evidence, the plaintiff added to the above account by describing having heard a noise, which he thought was the dog having bumped one of the four large ceramic pots (which were elsewhere described as vases) located at the corners of the pool: T114.25 - T114.45.
The plaintiff stated that initially, in the circumstances that ensued after realising his wife was dead, he was in shock, and he had been grasping for answers. He considered the possibility that she had suicided, although he said, and I accept, that the deceased had never discussed that subject with him: T116.1 - T116.22.
The plaintiff stated that on the day of the incident, he had no indication of the deceased being depressed or sad: T116.26. As far as he knew, the deceased was planning to have the recommended orthopaedic surgery for her shoulder problems, she had been talking in an anticipatory way about looking forward to having grandchildren, and there had been discussion in relation to selling one of their shops so that the plaintiff's workload would be reduced so they could spend more time together: T116.24 - T116.33. In that regard, on behalf of the plaintiff it was argued that the non-concerning result of the recent colonoscopy test undertaken by the deceased, and some recent dental work, also pointed to the deceased having a positive outlook on life.
The defendant sought to suggest that contrary to the plaintiff's evidence, that everything was fine between him and the deceased on the day of her death (T143.42), the plaintiff and the deceased had some disagreements. These were first, that he wanted her to travel to Victoria to see his mother but she was reluctant to do so because she had a fear of flying (T143.40) and secondly, there had been a light-hearted disagreement over finances: T144.4 - T144.33. I consider the defendant's construction of those events as being untoward, involved overstatement. I accept the plaintiff's evidence to the effect that those matters were of little consequence. I find those discussions seem to be an unlikely basis for the deceased wanting to suicide, or to inflict injury upon herself.
The defendant sought to undermine the plaintiff's credit by reference to a factual narrative summary composed by Senior Constable Sutherland to the effect that he had last seen the deceased in the living area of their home at 4.30pm on 31 January 2009: Exhibit "1", pp 159; 189.
The plaintiff said of that recorded factual detail that it was simply incorrect: T142.43. He said that Senior Constable Sutherland had possibly misunderstood his reference to time and he reiterated that he had not come downstairs until about 6.15pm on that day: T143.15 - T143.17. I accept the plaintiff's evidence in that regard, particularly as Senior Constable Sutherland's statement makes no mention of the plaintiff having seen the deceased at the contentious time of 4.30pm, and instead confirms that the plaintiff had told him he had heard a noise at 5.30pm without reference to him having seen the plaintiff at 4.30pm on that day: Exhibit "1", p 179.

(4) - Police observations at the scene

Senior Constable Sutherland, who examined the scene on the day of the incident, noted that there was no sign found of a struggle in or around the pool. He had observed that the deceased was located on the eastern side of the pool, and that her slippers were located next to an outdoor setting: Exhibit "A", p 75; Exhibit "1", p 193.
Senior Constable Sutherland subsequently took a more detailed statement from the plaintiff on 3 February 2009: Exhibit "A", pp 76 - 77. At 4.30pm on 12 February 2009, he revisited the scene and further discussed the incident with the plaintiff. At that time, the plaintiff had pointed out a number of matters that had led Senior Constable Sutherland to the opinion that the deceased died of accidental drowning, with alcohol and her pre-existing (shoulder) injuries inhibiting her from being able to swim to safety: Exhibit "A", pp 79 - 80; Exhibit "1", pp 179 - 181. His opinion in that latter regard had apparently been arrived at before the availability of the post-mortem toxicology test results.
The matters that apparently led Senior Constable Sutherland to that opinion were the location of a "vase" (which I infer was the pot adverted to in the evidence of the plaintiff), which had been slightly moved, possibly by a trip or fall near the vase. It was postulated that a fall by the deceased into the pool was due to the presence of a trip hazard comprising a raised lip at the side of the pool. It was also postulated that the deceased's subsequent drowning was due to the fact that she had a shoulder problem which may have prevented her from swimming to safety from the deep end of the pool, and the deceased's problem with vertigo, and the possibility of there having been a faint: Exhibit "A", p 79. The opinion concerning any limitations due to the deceased's shoulder condition must also be read in the light of Dr Chamberlain's more educated view, to the effect that it was unlikely the deceased's shoulder condition would have prevented her from trying to save herself whilst in the water.
Although it was part of Senior Constable Sutherland's function to form an opinion on the cause of the deceased's death, ultimately, for record purposes, it was up to the coroner to make a formal finding. Those opinions and findings do not bind the parties in these proceedings.
The police records of the investigation into the death of the deceased were tendered by the defendant: Exhibit "1", pp 145 - 206. The post-mortem narrative prepared by Senior Constable Sutherland was to the effect that at the scene, there were no suspicious circumstances surrounding the death of the deceased: Exhibit "1", p 197.
The police case report summarised the matters referred to above, and also recorded that on 12 February 2009, when police returned to the scene, the plaintiff had pointed out to the police the presence at the bottom of the pool of some finger marks located in the silt that was in that location, suggesting that the deceased had attempted to get to the edge of the pool to save herself before she eventually drowned: Exhibit "1", pp 158 - 159. It is difficult to draw any reliable conclusions from that evidence.
At that visit by the police, the plaintiff also pointed out the presence within a poolside vase, of a plastic pod that had been dislodged from a leg of a poolside chair. This was said to be some evidence to support a theory that the deceased may have bent over to pick up that item and place it in the vase before becoming dizzy from vertigo, and then falling: Exhibit "1", pp 158 - 159. Whilst that explanation might have been a possibility, it must be seen to involve speculation and it is difficult to draw reliable conclusions from that evidence.
The key factual questions to be resolved in this case are whether the deceased's death was accidental within the meaning of the terms of the policy, or whether the deceased either suicided or intentionally inflicted injury upon herself. It is therefore unnecessary to seek to resolve the speculative theory identified by the plaintiff at that time, and subsequently, as summarised in the two immediately preceding paragraphs.
After the receipt of the results of toxicology testing of blood samples taken from the deceased, as identified at paragraph [5] above, initially, the plaintiff did not request a formal inquest: Exhibit "1", p 181. He later changed his mind after the first coronial finding was recorded, and a second coronial finding was eventually made.

(5) - History of Zopiclone prescriptions in medical records

The deceased's medical records were tendered by the plaintiff: Exhibit "A", pp 17 - 44; 49 - 75; 96 - 121; 124 - 418. Dr Chamberlain's handwritten clinical notes covering the period 23 February 1990 to 3 April 2001 were tendered in evidence: Exhibit "A", pp 359 - 363. Dr Chamberlain's typed computerised consultation notes covering the period 28 April 1999 to 2 February 2009 were also tendered in evidence: Exhibit "A", pp 51 - 74. The notes contain multiple references over the course of time to the deceased being prescribed sleeping tablets.
Copies of those records were also tendered by the defendant. The defendant's bundle had some additional pages. In my view, nothing turns on this fact as the entire records, when read together, seem complete. Where it becomes necessary to do so, I will refer to relevant entries in either bundle.
The deceased's medical records contain the abbreviated detail of many years of her consultations with various doctors at the practice of her treating general practitioner. Those records included the results of tests and correspondence following a number of specialist referrals. Not all of those records need to be summarised in these reasons.
Of particular relevance is the identification of the various dates on which the deceased was prescribed Imovane or Zopiclone. The dates of those and similar prescriptions have been selected and extracted, and set out in the Appendix to these reasons, to form a basis for evaluating the opinions of Dr Huntsman.
The Appendix also identifies the numerous dates on which the drug Imovane was recorded as having been prescribed for the deceased. The last prescription date for Imovane was on 22 January 2009, which was just 9 days before the death of the deceased: Exhibit "A", p 52.
In addition to prescriptions for Imovane, on 17 January 2006, and again on 29 March 2006, the deceased was given a prescription of Serepax 30mg, with the intention that half a tablet to be taken at night: Exhibit "A", pp 57 - 58. On 17 January 2006, the deceased's general practitioner also gave her a sample of Avanza to try: Exhibit "A", p 58. Those additional prescriptions seem to have no bearing on the matter, given the remoteness of the dates relative to the date of death. There is no evidence that the deceased took any relevant prescription drug other than Imovane in the period leading up to her death.
Those historical medical materials, and the circumstances of the death of the deceased, were the subject of an expert forensic evaluation by a consultant psychiatrist, Dr Stephen Huntsman, who prepared a forensic report dated 25 April 2012 at the request of the solicitor for the plaintiff: Exhibit "A", pp 83 - 97. Dr Huntsman also gave oral evidence at the hearing, including in cross-examination: T48 - T99. Relevant aspects of Dr Huntsman's evidence will shortly be examined in closer detail in relation to the issues calling for decision.

(6) - Non-lethal Imovane overdose on 22 August 2003

On 22 August 2003, the deceased had ingested a non-lethal quantity of Imovane which was identified and described as an overdose, together with the ingestion of some alcohol. These events had occurred only a few days after her father had died.
At 4.34pm on 22 August 2003, an ambulance transport form recorded that an ambulance had been booked to attend upon the deceased, and that the deceased was off the stretcher at Lismore Hospital at about 5.45pm on that day. The ambulance patient history summary stated: "Want to go to sleep. Recent death of father. Patient has allegedly taken 140mg of Imovane & some alcohol. Note at the Scene: 'You left me'. O/A Dr Nicholas (sic for Nicoll) at residence, Patient supine in bed. O/E patient is drowsy (with) slight confusion" [Exhibit "A", p 39]
The described content of the note "You left me" was ambiguous. Although it was found at the deceased's home, there was no evidence as to when it had been written or whether it had been intended for a particular person, living or dead. This is a matter of some importance because the defendant sought to rely upon that note as being evidence of a suicide note. The defendant sought to establish this through the evidence of the plaintiff.
The difficulty for the defendant with regard to that proposition is that the plaintiff's memory of the particular circumstances of that note was very vague, although he said that the words of the note, as cited to him, rang a bell for him: T119.12. The plaintiff's limited recall on that matter is not surprising, given the questions related to events that occurred nearly 13 years ago. The plaintiff's limited recollection of that note is not to be taken as being indicative of an unreliability of any other aspect of his evidence.
The plaintiff described the deceased's practice whereby she used to leave him "love notes, every now and again": T119.14. In an answer against his interests, the plaintiff also acknowledged that it was possible that the note had been addressed to him. He explained that it could have related to an occasion when he had left the deceased for four days: T119.20. The circumstances of that answer were not further explored. The plaintiff also agreed with the alternative proposition that the note could have related to the plaintiff's thoughts about her father's death: T119.25 - T119.33. That evidence of possible alternative meanings of that note was not contradicted, and it was not inherently improbable in any of its aspects.
That state of the evidence regarding the note found at the deceased's home on 22 August 2003 indicates that no positive conclusions arise concerning that note and its intended purpose or meaning. A number of possible explanations were open. In my view, to ascribe, as the defendant seeks to do, a suicidal meaning, or an intention by the deceased to self-inflict injury, from the second-hand description of that inherently ambiguous note, would involve impermissible speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
Although Dr Huntsman agreed that the note in question could be interpreted as a suicide note as one of the possibilities, even the main possibility, so as to represent a "clue as to what might have been going on" (T75.14 - T76.4), there is nothing specific that raises that possibility to a status of an affirmative inference above a guess between a number of other speculative alternatives: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
As there is no evidence to indicate when the note was written, as distinct from when it was found, I do not accept the defendant's contention that the note in question provided a reliable indication that the plaintiff intended either suicide or self-inflicted injury in August 2003.
At 6pm on Friday 22 August 2003, a hospital nurse recorded some notes of an assessment of the deceased's presentation at the emergency department of Lismore Base Hospital. The notes recorded that the deceased was brought in by ambulance personnel on a stretcher with a history of having taken 10 - 15 Imovane tablets at 4.45pm that day. The notes also stated "her father had passed away earlier this week - she is finding this very difficult to accept - ?? alcohol ingestion as well": Exhibit "A", p 21.
At 6.13pm on 22 August 2003, Dr Nicoll sent a fax to the hospital relating to her attendance on the deceased on that date. That fax contained a handwritten note which made reference to an overdose that was a suicide attempt: Exhibit "1", p 69. That interpretation was certainly open to Dr Nicoll as being a first impression of the circumstances at that time. However, on a deeper and more focussed clinical evaluation undertaken in less pressured circumstances, those assessing and treating the plaintiff at the hospital for the overdose, ultimately came to a different conclusion, as did Dr Chamberlain on his later review of the deceased.
The significance of Dr Nicoll's notation cited in the preceding paragraph will be the subject of consideration in due course on the topic of whether the deceased had, in August 2003, expressed suicidal intentions, as that notion is an essential plank in the defendant's case arguing for either suicide or self-inflicted injury as excluded events under the policy.
At 6.30pm on 22 August 2003, or shortly afterwards, the deceased was assessed at Lismore Hospital by a Dr Hall, who noted that the deceased was restless, and that she had been very abusive towards the hospital staff. She assessed the deceased as being a danger to herself and to others, and she therefore completed a Sch 2 Medical Certificate pursuant to the provisions of the Mental Health Act 1990. Exhibit "A", pp 26 - 29.
At that time, Dr Hall took a history from the plaintiff concerning his wife. Dr Hall's notes indicated that the presenting condition was that of a drug overdose. In her note of that interview, she reiterated the already recorded history of the deceased having taken 10 - 15 Zopiclone 7.5mg tablets, plus whisky, as insomnia treatment.
At that time, Dr Hall recorded that the drug in question was a short acting sedative / hypnotic with a profile similar to that of the benzodiazepines. She also noted that if, in the event that the deceased was assessed as being "OK" in the morning, then she could be transferred into the care of the psychiatric team: Exhibit "A", pp 25 and 30 - 31.
Between 6.40pm on 22 August and 8.30am on 23 August 2003, the deceased remained under observation in the hospital. It was noted that a psychiatric review was awaited. The notes stated that, for a short period, the deceased had initially been agitated and aggressive: Exhibit "A", p 24.
At 8pm on 22 August 2003, an acute mental health care service hospital triage note recorded that the deceased, who was then aged 53 years, and who had no prior contact with the mental health team, had been scheduled as an involuntary patient because of abusive behaviour towards the accident and emergency staff. The clinical notes recorded she was not medicinally treated for an overdose comprising 10 - 15 tablets of Imovane 7.5mg plus the ingestion of whisky in the context of her father having died 4 days earlier.
The medical notes of the August 2003 admission went on to record that the deceased had a past history of "severe PND", which I interpret to refer to the period of post-natal depression the deceased suffered in the context of the birth of her son, 24 years earlier.
On the following day, a medical officer ordered the revocation of the scheduled involuntary detention of the deceased under the Mental Health Act 1990. At that time it was noted that the deceased was "not suicidal currently". The person making that note, whose qualifications were not stated, made the additional note that the deceased was "probably drinking more than she is admitting". At that time, the deceased was referred to the care of her general practitioner: Exhibit "A", pp 18 - 19.
Dr Huntsman's interpretation of those events will be referred to in due course.
On 23 August 2003, Dr Powditch, the psychiatric CMO referred to at paragraph [49] above, wrote a letter to the deceased's general practitioner. That letter recorded the deceased's version that "this was not a suicide attempt, but a desire to get a good sleep (but with) a lack of knowledge about the risks of taking (increased) medication": Exhibit "A", p 41. The notes of the assessment undertaken by Dr Powditch have already been summarised at paragraph [49] above.
On 24 August 2003, a mental health nurse made a follow-up telephone call to the deceased, and in the ensuing conversation, noted that the deceased stated the overdose with sleeping tablets was an "accident" and a "dreadful mistake". That note went on to state that the deceased had intimated her intention was only to achieve sleep, that she had no intention of killing herself, that she was exhausted and was not eating after the death of her father, and in that context, it was noted the deceased had said she "just has to get her crying done / grieving": Exhibit "A", p 20.
On 31 August 2003, the same mental health nurse who made the note referred to above, spoke to the deceased by telephone by way of a further follow-up conversation. In that context, it was noted that the deceased "maintained she never intended to kill herself with the pills": Exhibit "A", p 20.
Those matters of contemporary evidence are relevant to the question of whether or not the deceased had intended to either suicide or cause self-injury when she took the combination of Zopiclone and alcohol on 22 August 2003. Those questions will be taken up in the consideration of Issue 1.

(7) - Police investigation of the deceased's death

For completeness, it is relevant to review the police investigation into the circumstances of the deceased's death.
At about 8.40pm on 31 January 2009, investigating police made notes of the scene of the deceased's death. No suspicious circumstances were recorded at that time. The investigating police found no sign of a struggle in or around the pool. The deceased was clothed in a nightgown and underwear, and her slippers were found next to an outdoor furniture setting near the pool. A search was made for medications in the house. Those medications found by the police were listed. Significant amongst those medications was an empty 30 tablet blister pack for Imovane and a 30 tablet blister pack of 7.5mg Imovane tablets, from which 5 tablets were noted to have been missing, leaving 25 unconsumed tablets: Exhibit "A", p 75. Those findings did not permit a reasoned calculation of how many Imovane tablets the deceased had actually taken before she drowned.
Significantly, the police also found 3 unused boxes of Tramal 50mg capules (sic); Mersyndol Forte, Pandeine (sic) Forte and Codeine Paracetamol: Exhibit "1", p 174. The evidence disclosed that Tramal was an opiate analgesic: T45.31; T47.19.
The investigating police took a statement from the plaintiff, which included the following extract: "3. On Saturday 31st of January, 2008(sic), at about 8am I awoke and had breakfast with my wife Ingrid VACCARO at my address of 18 Opal Crescent, Alstonville, I last saw my wife at about 10.30am and we watched television together consisting (sic) the news and a morning show. We had breakfast together and then I went upstairs to do work on the computer. For a couple of hours I did some work on the computer and became quite tired as a result of taking some Zyrtec that morning and an anti-histamine the night before. Due to this I went for a lie down on the bed and awoke about 6.15pm, I got freshened up and dressed with the intention of buying dinner for us that night. 4. I then went downstairs to tell Ingrid that I was going to buy some Take-away. When I got downstairs the house had been closed up for preparation of the night, I looked around and did not see Ingrid and thought that she may have got in the car to get some take-away. The curtain was closed in the kitchen, and I thought Ingrid might have been in the rear yard pool dipping her feet. When I pulled the curtain I saw Ingrid in the pool, face down and I saw the top of her had (sic) and her arms were out and her dressing gown was afloat. Due to this I quickly ran out, jumped straight into the pool. I picked Ingrid up and took her to the side of the pool and lifted her out of the pool. I then got out and began to commence CPR, by doing chest compressions. At this time Ingrid was blue and she was quite stiff. I attempted for a short period of time and then yelled out for help. Lee, Tina and her boyfriend came (sic) fence line, and then Tina ran back inside and called '000'. At this time another next door neighbour being Stephen PARSONS jumped the fence and assisted me with performing CPR. Stephen new (sic) how to perform CPR and attempted to administer it Stephen said to me, "She's blue, she's gone, she's (sic) must have been in the water for about an hour." 5. Sometime later the ambulance arrived and attempted administering CPR and used an electronic instrument. The ambulance personnel then said, "There's nothing more we can do." Stephen then went and got a blanket to cover her. About 30 minutes later Police arrived. 6. Quite often Ingrid would go and dip her feet in the pool around 5.30pm before going upstairs, especially if it was a hot day or she was experiencing menopausal severe hot flushes. 7. Ingrid (sic) health was quite good, apart from that and her right shoulder, which has been diagnosed as calcification of the shoulder joint, which can cause her immense pain and it can lock up or have very limited movement. Dr ASHWELL only administered the fourth steroid injection to her should (sic) only a week before, and he was contemplating surgery on the shoulder. 8. Approximately two weeks ago, Ingrid also had a Colonoscopy and was put under general antiseptic (sic) for this procedure and around the same time she had dental surgery where local antiseptic (sic) was administered." [Exhibit "A", pp 76 - 77]
Senior Constable Sutherland attended the scene at about 7.30pm on 31 January 2009, and took the following statement from the plaintiff: "3. On Saturday 31st of January, 2009 at 7.30pm I attended 18 Opal Crescent, Alstonville. At that location I was met by Ambulance personnel who I had a conversation with and they told me something in relation to the deceased Ingrid VACCARO. I was then escorted through the residence where I met Patrick VACCARO also known as Pasquale VACCARO the husband of the deceased. I spoke with Patrick VACCARO briefly and was then taken to the rear of the premises where I was escorted to the pool where I saw the deceased Ingrid VACCARO lying beside the pool in the rear yard with a blanket placed over her. I then had a further conversation with the ambulance personnel who told me something. A short time later Acting Inspector DONALD attended the scene and I had a conversation with him. Crime Scene and Detectives were contacted to attend. I then had a conversation with Patrick VACCARO, who said, "I heard a noise at 5.30pm I was lying in bed and heard a noise, like my wife had closed a door. An hour later I awoke and had a quick wash and went downstairs to see my wife. I went into the kitchen and looked outside the window to the pool area and saw Ingrid in the pool, face down and I saw the top of her head and her arms were out and her dressing gown was afloat. Due to this I quickly ran out, jumped straight into the pool. I picked Ingrid up and took her to [words obliterated] side of the pool and lifted her out of the pool. I then got out of the pool and commenced CPR by doing chest compressions. At this time Ingrid was blue and she was quite stiff. I attempted for a short time and then yelled out for help. Lee, Tina and her boyfriend came to the fence line and then Tina ran back inside her house. At this time another next door neighbour by the name of Stephen jumped the fence and assisted me with performing CPR. Stephen knew how to perform CPR and attempted to administer it. Stephen said to me, "She's blue, she's gone, she must have been in the water for about an hour." Sometime later the ambulance arrived and attempted administering CPR and used an electronic instrument. The ambulance personnel then said, "There's nothing more we can do." Stephen then went and got a blanket to cover her." … 6. On the 3rd of February, 2009, I obtained a two page statement from Patrick VACCARO and he told me something. On Thursday 12th of February, 2009, at 4.30pm I attended the residence of Patrick VACCARO where he told me something in relation to how he believed his wife had fallen into the pool. It was reported that he had located that a vase near the pool had been slightly moved and how his wife may have tripped or fallen near the vase and had fallen into the pool. It was reported that his wife had a bad shoulder and may have not been able to swim from the deep end of the pool to the side of the pool due to her bad shoulder and due to fainting due to her vertigo problem. It was also revealed to police that there was a lip at the side of the pool which is a trip hazard and may also have contributed to her falling into the pool. … 7. [Word obliterated in copying] Friday 29th of May, 2009, a toxicology report was received concerning the deceased Ingrid VACCARO where it was revealed that she had a high level of alcohol in her blood. A reading of 0.217 grams of alcohol per 100ml of blood was obtained with 2.9 mg of Ibuprofen per litre of blood was also detected within her system and the time of death." [Exhibit "A", pp 79 - 80]

(8) - Dr Chamberlain's letter dated 30 August 2010

The deceased's medical records were accompanied by an explanatory letter dated 30 August 2010 from Dr Chamberlain, who had been the deceased's treating general practitioner since 1989: Exhibit "A", pp 81 - 82. That letter from Dr Chamberlain is set out in full, as follows: "Re: The late INGRID VACCARO Thank you for your letter regarding Ingrid Vaccaro, I have answered your questions below: 1 Ingrid had been a patient here since 1989. In August 2003 she was admitted to Lismore Base Hospital with an overdose of Imovain (sic) and alcohol. However, at interview after the event by both psychological staff in the Northern Rivers Health and by us, Ingrid was adamant that it was not a suicide attempt but an attempt to get more sleep. At the time both her and her husband stated that she was not trying to suicide. Otherwise in the time and I have known her there has been no other event that could be interpreted as a suicide attempt nor has she expressed suicidal ideas. 2 Over the years Ingrid had displayed varying degrees of both depression and anxiety. Mostly it was anxiety related to poor sleep or various physical symptoms. 3 At the time of Ingrid's death she had been relatively stable and functioning well. Having known her for many years I had seen her go through many ups and downs when things weren't going well for her. Her main physical complaint was that of a sore shoulder but in January 2009 she had reported that her shoulder pain was actually reasonably good. There was no evidence that Ingrid was thinking about suicide. 4 I have no indication in my notes that Ingrid complained of dizziness. She may have been dizzy, as Ingrid had such a plethora of symptoms and was often not willing to discuss them with us. Patrick tells me she did have dizziness. 5 Dizziness can be a symptom of overuse of Zypiclone (sic). Symptoms are alertness, headache, fatigue, confusion, anmensia (sic), sleepwalking, blurred vision, bitter taste, dry mouth, Gl upset. 6. Yes. 7. No, I don't think Ingrid's shoulder would have prevented her from being able to get out of the pool or to be able to hang on to the side of the pool. Her shoulder had been painful but had been improving somewhat prior to her death. She was certainly not incapable of using her arm. 8. As per 1. 9. Ingrid suffered from very high levels of anxiety. She was a chronic insomniac and had been taking sleeping tablets for many years and Imovan was the medication that gave her best relief. I think I agree with Patrick that Ingrid would have been sitting around the pool at night trying to keep cool. It was February when she died and quite hot and she often suffered from hot flushes. I don't think Ingrid was the sort of person to take her own life. She was too anxious about dying. I am unaware of Ingrid's level of regular alcohol intake, but from what Patrick has told me subsequent to her death she may well have been a regular heavy drinker. It is likely that at times Ingrid took more sleeping tablets than she should have in an attempt to get to sleep. I believe she intentionally took excess tablets on the night of her death, but didn't intend to kill herself or fall into the pool. Many thanks. Yours sincerely, DR NIGEL CHAMBERLAIN" [Exhibit "A", pp 81-82]
The actual questions which Dr Chamberlain had been asked to address for the preparation of the above letter were not tendered in evidence. However, the gist of those questions is generally clear from the content of his letter. Dr Chamberlain was of the view that there was no evidence that the deceased was thinking about suicide. In my view, that opinion from the deceased's treating general practitioner carries significant weight as to his clinical assessment of the deceased's mental state.

(9) - Post-mortem and coronial toxicology test results

On 15 February 2009, at the request of the coroner, a pathologist, Dr Brian Beer conducted a post-mortem autopsy examination of the deceased: Exhibit "1", pp 95 - 100. In his ensuing summary, Dr Beer stated that his provisional opinion on the cause of death, being the condition that directly led to death, was drowning, but that the morbid conditions giving rise to that cause, was a presumed drug overdose. That opinion was given pending the receipt of toxicology test results: Exhibit "1", p 96.
Four samples of the deceased's post-mortem femoral blood were obtained. Two samples comprised preserved blood and the other two comprised unpreserved blood. Analysis of the preserved samples revealed the presence of 0.217g/100mL of alcohol and 2.9mg/L of Ibuprofen and 1.2mg/L Zopiclone: Exhibit "1", pp 102 - 104. The analysis revealed no signs of the other drugs identified at paragraph [137] above.
On 20 November 2009, the coroner enquired of Dr Beer as to whether his final report was ready: Exhibit "1", p 105. On 14 December 2009, Dr Beer supplied his supplementary report, in which his final opinion on the cause of the death of the deceased was stated to be: "Overdose of Zipiclone (sic) leading to drowning as the final mode of death, but with the overdose being the primary cause": Exhibit "1", p 108.
It later emerged that Dr Beer had erroneously mischaracterised the nature of one of the prescription medications being taken by the deceased. That mischaracterisation will be more conveniently analysed in connection with the consideration of the evidence of Dr Huntsman.
For present purposes, it is sufficient to here record that a limitation was placed on the use to which Dr Beer's supplementary report to the corner could be put, pursuant to s 136 of the Evidence Act 1995. The reason for that ruling was that Dr Beer's report was not compliant with the Expert Witness Code: Sch 7 of the Uniform Civil Procedure Rules 2005. Dr Beer's report retains an evidentiary value in terms of historical facts surrounding the post-mortem examination of the deceased, but not otherwise on the question of whether, within the meaning of the policy, the deceased's death was accidental: T40.42 - T41.3.

(10) - First coronial inquiry and issued death certificate

Initially, a coronial inquest was formally dispensed with as the plaintiff did not require an inquest. At that time, replicating the text of Dr Beer's final report, the coroner entered a finding that the cause of the death of the deceased was suicide by an overdose of the drug "zipiclone" (sic), leading to drowning as the final mode of death, but with the overdose being the primary cause of the death: Exhibit "A", p 406. The letter advising that an inquest had been dispensed with was erroneously dated 21 December 2009.
The first coronial finding contained an error which had been replicated from Dr Beer's report which had been made available to that coroner. The correct name of the drug was Zopiclone, not zipiclone as stated. The ensuing death certificate issued by the coroner also replicated that finding: Exhibit "1", p 109.

(11) - Initial claim under the policy and its rejection

On 18 February 2009, the plaintiff made a claim for the payment provided for in the policy in respect of the prescribed accidental death benefit as he was the nominated beneficiary under the policy. On 6 March 2009, the insurer acknowledged the claim and requested a series of listed documents in order to assess the claim: Exhibit "1", p 101.
On 6 October 2009, the defendant insurer obtained an authority from the plaintiff to access the deceased's medical records: Exhibit "A", p 418.
On 7 July 2010, the plaintiff's solicitors wrote to the defendant enclosing a series of documents that the defendant had requested. At that time, the defendant was disputing the plaintiff's claim, and asserted the death of the deceased was caused by suicide.
That assertion was disputed on behalf of the plaintiff, including by the submission to the insurer that on the day of her death the deceased had "made arrangements to pre-record a number of television programs and (had) not left any suicide note and it was her practice to sit beside the pool and taking her slippers off and placing them where they were found. There also appears that there is no history of depressive thoughts triggering suicidal tendencies": Exhibit "1", pp 110 - 111.
It appears that the authority to obtain the deceased's medical records, which had been provided to the defendant on 6 October 2009, had not been acted upon by the defendant for some time. Subsequently, on 21 July 2010, the defendant insurer wrote to Dr Chamberlain seeking copies of all the medical records relating to the deceased: Exhibit "A", pp 416 - 417.
On 22 July 2010, the defendant advised the plaintiff that it declined to pay the plaintiff's claim on the basis that the circumstances of the deceased's death had engaged an exclusion clause in the policy. The defendant's stated reason for declining the claim was that the death certificate issued by the coroner indicated death was by suicide, and therefore, the defendant argued, the death was not of an accidental nature, and came within the policy exclusions of suicide or intentional self-inflicted injury: Exhibit "1", pp 114 - 115.
On 28 July 2010, the plaintiff's solicitors wrote to the defendant advising that the coroner's finding had been made without a hearing, and was based on the documents that were before him. In that letter, the plaintiff's solicitors also argued, correctly, that the recorded finding by the coroner was not binding on any other court. The plaintiff's solicitor reiterated the view there was no information which suggested the deceased had formed an intention to take her own life, and accordingly, it was requested that the file be kept open whilst further material, which was not before the coroner, was being obtained: Exhibit "1", p116.
The parties then went through a request for review process with regard to the insurance claim. In the course of that process, on 23 March 2011, at the request of the solicitors for the plaintiff, the defendant provided the plaintiff's solicitors with a copy of all of the documentation on its claim file: Exhibit "1", pp 117 - 120.
A handwritten note within the records of Dr Chamberlain indicates that a copy of the deceased's medical records were sent to the insurer on 2 September 2010, which was a little over 6 weeks after the defendant had declined the plaintiff's claim under the policy: Exhibit "A", p 416.
It is not clear as to whether at that time, the defendant had a copy of Dr Chamberlain's 30 August 2010 letter to the plaintiff's solicitor, which is cited at paragraph [140] above: Exhibit "A", pp 81 - 82.

(12) - Second coronial inquest

On 11 October 2012, the solicitors for the plaintiff wrote to the coroner enclosing written submissions in support of an argued finding that the cause of the deceased's death was: "A combination of accidental overdose along with excessive alcohol consumption leading to accidental drowning, with drowning being the mode of death": Exhibit "1", pp 135 - 136.
In support of that contention, the solicitors for the plaintiff drew attention to some incorrect assumptions made by Dr Beer in his initial report of 4 February 2009, as follows: "The deceased had suffered from depression and had been on medication for this (Imovane and Simvastatin)" [Exhibit "1", p 95]
The plaintiff's solicitors' submissions to the coroner pointed out a further error of assumption made by Dr Beer, as follows: "2.3 With respect to Dr Beer, Dr Huntsman refers to this error on the bottom of page 3 of his abovementioned report as follows: 'The report of Dr Brian Beer states that Ms Vaccaro suffered from depression and had been on medication for this (Imovane and Simvastitin [sic]). It should be noted that these medications are not treatments for depression. Imovane (Zopiclone) is a sleeping tablet prescribed for Insomnia and Simvastatin is a treatment for high cholesterol.' " [Exhibit "1", p 139]
Following a request by the plaintiff's solicitors for a second inquest to be convened, in the context of the above errors identified within the report of Dr Beer, a second inquest took place. The findings of the second inquest then replaced the earlier coronial findings.
On 13 December 2012, the recorded findings of a second coronial inquest, also conducted without a hearing in court, were that the cause of the deceased's death was an accidental drowning, with the antecedent cause being excessive alcohol and medication consumption: Exhibit "A", p 88; Exhibit "1", p 140.

(13) - Subsequent claim under the policy and rejection of that claim

On 8 January 2013, the solicitors for the plaintiff wrote to the defendant referring to the earlier rejection of the plaintiff's claim under the policy on the ground that the deceased had suicided. In that letter, the plaintiff's solicitors pointed out the further finding of the coroner as cited at paragraph [163] above, and again requested that the defendant reconsider its earlier rejection of the plaintiff's claim: Exhibit "1", pp 141 - 142.
On 25 March 2013, the defendant advised the plaintiff it had reviewed its earlier decision to decline payment, and it then communicated its decision confirming its earlier decision declining to make a payment of the accidental death benefit provided for in the policy: Exhibit "A", pp 89 - 90; Exhibit "1", pp 143 - 144.
The defendant's reasons for that decision, which comprised some factual and syntax errors, was stated in the following terms: "Decision The evidence from the coroner's report confirms excessive alcohol and Zopiclone readings preceding the accidental drowning event. MLC are of the view that due to excessive intake of alcohol and prescription medication contributed to the deceased's death. Under the terms and conditions of the policy, a benefit is not payable where the death resulted from accidentally with a contributing cause. As Mrs. Vaccaro's death resulted accidentally with a contributing cause, being, alcohol and prescription drug consumption, are unable to accept this claim under this policy." [Exhibit "1", pp 143 - 144]
Those factual and syntax errors, with some significant words obviously omitted, render those reasons for the rejection of the claim difficult to understand. Contrary to what the letter stated, there were no alcohol and Zopiclone readings that preceded the drowning. The recorded levels of those substances were only obtained post-mortem. Nevertheless, the letter in question was a clear rejection of the plaintiff's claim. The defendant relies on that letter as the reasoning behind its defence to the plaintiff's claim: Paragraph 13 of the amended defence filed on 28 October 2015.
The plaintiff remained dissatisfied with the defendant's decision to reject his claim. He has therefore brought these proceedings claiming a relevant breach of the contract of insurance.
In its amended defence the defendant has denied that the non-payment of the accidental death benefit relevantly constituted a breach of contract, and instead claimed the deceased's death resulted from suicide, intentional self-inflicted injury, "and / or" being under the influence of drugs not prescribed by a medical practitioner. In contrast, to that stated position, earlier, when rejecting the plaintiff's claim, the defendant's cited letter raised and relied upon the deceased's alcohol ingestion and the taking of excessive prescription medication as the basis for rejecting the claim. That letter made no mention of any reliance on an allegation that the deceased had suicided, as was later asserted by the defendant in the defence filed in these proceedings.

Forensic psychiatric evidence of Dr Huntsman

On 25 June 2012, the solicitor for the plaintiff obtained an opinion from Dr Stephen Huntsman, a consultant psychiatrist, in relation to the cause of the deceased's death. Dr Huntsman reviewed the first coronial finding, and he also reviewed and identified two errors in the underlying pathologist's report to the coroner by Dr Beer, one of which was significant.
The first such error identified by Dr Huntsman was the mischaracterisation of the drug Simvastatin, which Dr Beer had incorrectly assumed to have been prescribed to the deceased, as a treatment for depression, when in fact, as was explained by Dr Huntsman, Simvastatin was a prescription medication used to treat the deceased's high cholesterol. There was no contest that this was an error of assumption on Dr Beer's part. It seems that this mischaracterisation error may possibly have influenced the first coronial finding.
The second error Dr Huntsman identified in Dr Beer's report was probably typographical in nature. That error was replicated in the coronial findings in the mis-description of the prescription sleeping drug Zopiclone the deceased had taken, erroneously describing it as Zipiclone. Nothing turns on that second error.
Dr Huntsman noted the records of the deceased's treating general practitioner and observed from the dates of prescription for Imovane or Zopiclone, it was likely that the deceased was using Imovane regularly, but not on a daily basis, given that the dispensed prescription packet content was for 30 tablets. He therefore concluded there was no evidence the deceased was overusing that drug unless she had been consulting other doctors for prescriptions: Exhibit "A", p 85.
There was scant evidence that the deceased had been consulting other doctors for prescriptions for Imovane at around the time of her death. However, it is appropriate to test Dr Huntsman's conclusion as identified in the preceding paragraph.
A convenient means by which to test Dr Huntsman's conclusion that there was no evidence of the deceased's earlier misuse of Imovane, is by reference to an analytical table, comprising MFI "3", now replicated in a modified form in the Appendix. The table comprising MFI "3" was exposed to the parties on 6 May 2016. It was the subject of further written submissions delivered by the plaintiff on 13 May 2016 (MFI "4") and by the defendant on the same date: MFI "5".
On behalf of the plaintiff, it was submitted that MFI "3" should not form the basis of inferences as to the quantities of Imovane available to the deceased as it was possible that repeat prescriptions would have been issued to the deceased on the consultation dates which formed the basis of that table. There is no evidence from within the clinical notes to suggest that the deceased was either issued with, or had obtained, dispensed repeat prescriptions for Imovane, except for the entries in the general practitioner's notes for 27 April 2004.
Although the assumption identified in the Appendix, to the effect that the dispensing date for Imovane was the same as the prescription date, a matter that was not the subject of specific evidence, it nevertheless seems to form a reasonable, general, and therefore limited analytical foundation upon which to test Dr Huntsman's expressed opinion as cited in paragraph [173] above, albeit not as precisely as might have been possible if the actual dispensing dates for Imovane had been known.
The defendant submitted, correctly, that there were uncertainties within the analysis set out in MFI "3", and therefore, within the Appendix. Whilst those uncertainties are considerable, the Appendix to a degree nevertheless assists with an analysis of the Imovane prescriptions issued to the deceased.
However, I do not accept, as was submitted, that those uncertainties should extend to inferring that repeat prescriptions had been issued on the dates extracted from the general practitioner's records. Nor am I prepared to find that it was probable that repeat prescriptions for Imovane were issued to the deceased in the absence of a notation to that effect in the records of the prescribing practitioner.
I accept, as was submitted by the defendant, that any ambiguities in that regard could have been clarified by records kept by the Pharmaceutical Benefits Scheme. However, no such records were tendered.
In submissions made on behalf of the plaintiff, attention was drawn to the evidence of the plaintiff, as follows: "A. I never investigated it. I never checked. There was always Imovane at home because we would get our sleeping tablets from Pharmacy Direct as they were a lot cheaper. The doctor would give us a prescription and we would get three packs of 30 when she was running out, when she was in the last couple of weeks of running out of the last prescription order. That was a regular thing." [T118.49 - T119.4]
That evidence does not reasonably support an inference that the deceased had been issued with repeat prescriptions which she dispensed three at a time, as assumed by the above answer. In my view, it is far more likely that the general practitioner only gave the deceased one prescription at a time, as appears from the clinical records.
In my view, given the deceased's past history of overdose of Imovane in 2003, it would seem unlikely that after 2003, the deceased would have been issued with multiple repeats for Imovane where there was a past history of overdose. I consider it to be far more likely that she saved up her prescriptions, and on occasions had them dispensed as described in the passage of evidence cited in the preceding paragraphs. That possibility was not glaringly improbable, and it was not inconsistent with the plaintiff's evidence that sometimes, the deceased only took half a tablet at night (T117.15 - T117.30) which, absent a regular pattern of taking tablets, this would have meant she could have accumulated a stockpile of Imovane.
There is no accurately discernible pattern of the deceased's ingestion of Imovane over the period of 9 years covered by the dates in the Appendix. This leads to the more likely conclusion that the deceased's use of Imovane dosages had most probably varied over time.
The defendant's submissions dated 13 May 2016 make the well-founded point that whatever the deceased's pattern of taking Imovane, she had a sufficient accumulation of prescribed tablets on hand for an overdose to occur, and to still leave a surplus of 25 Imovane tablets. In view of that conclusion it is therefore unnecessary to definitively seek to resolve whether the deceased had repeat prescriptions available to her rather than a series or a supply of individual prescriptions issued to her over time.
The last column of the Appendix identifies the possibility that in the months preceding the death of the deceased, there were a significant number of days on which the analysis shows she may not have had cover for Imovane. The possible explanations for this are uncertain, and include scenarios where she had either run out of medication and had for a time not sought replacements, or that she was taking doses of Imovane at the rate of less than one tablet per day, or that she may have not taken Imovane tablets on every day in those periods. It is unnecessary to resolve those questions. It is sufficient to state that the analysis within the Appendix does not contradict Dr Huntsman's opinion cited in paragraph [173] above.
Dr Huntsman reviewed Dr Chamberlain's letter to the plaintiff's solicitors, dated 30 August 2010, the text of which is cited at paragraph [140] above, and he noted that in the time leading up to her death on 31 January 2009, the deceased appeared to Dr Chamberlain to have been relatively stable, with no signs of suicidality: Exhibit "A", p 85.
Dr Huntsman reviewed the deceased's 2003 admission to Lismore Base Hospital for treatment of an overdose of Imovane and alcohol in the context of the recent death of her father. He noted that at the time, this was felt by those assessing the deceased that the overdose, including in combination with alcohol, did not represent a suicide attempt. He reviewed the deceased's medical records and he concluded that there was no evidence of the deceased suffering an episode of major depressive disorder: Exhibit "A", p 85. Major depressive disorder was defined as depression lasting at least two weeks: T48.9 - T48.30.
After reviewing the other medications prescribed for sleep (Endep and Avanza), and after reviewing the psycho-pharmacological effects of taking Zopiclone (a central nervous system depressant) in conjunction with the effects of alcohol ingestion (inco-ordination, impairment of judgment, impaired cognition, mood lability, unsteady gait and impairment in attention), Dr Huntsman noted the reported levels of those substances were sufficient to cause confusion, delirium and loss of consciousness: Exhibit "A", pp 86 - 87. Dr Huntsman's opinion did not go on to state that death was an inevitable consequence of the deceased's combined ingestion of medications and alcohol leading to the levels found at post-mortem.
Dr Huntsman stated that the effects of Zopiclone occur rapidly on oral administration because of rapid absorption, hence its rapid action in inducing sleep in patients suffering from insomnia: Exhibit "A", p 87.
None of the opinions expressed by Dr Huntsman as cited in the three immediately preceding paragraphs were contradicted by evidence from the defendant, expert or otherwise.
Significantly, Dr Huntsman addressed the crucial question posed to him, namely the cause of the deceased's death. He stated: "… It is therefore likely that Ms Vaccaro experienced a rapid deterioration in her mental state after taking zopiclone. As her blood alcohol level is sufficiently high to cause memory impairment ("alcoholic blackout,") in which the ability to recall events for longer than three minutes is lost, it is possible that Ms Vaccaro accidentally took more zopiclone than she intended. It is also possible that her state of intoxication was such that she had no real awareness of what she was doing. Comment on the Coroner's Finding: Coroner Pogson's finding of suicide appears to be based on the finding of high levels of zopiclone. However, there is nothing else to suggest Ms Vaccaro was suicidal at the time and deliberately attempting to drown in the family swimming pool would be an unusual means of committing suicide. My experience of suicidal patients, over many years, is that they generally wish to avoid a failed attempt and choose a means that they are confident will be successful. In my opinion, the most likely explanation of Ms Vaccaro's death is that she consumed an excessive amount of alcohol and then whilst intoxicated consumed a hazardous additional quantity of imovane (zopiclone.) It is likely she then fell into the swimming pool in [a] confused and intoxicated state, whereupon she drowned." [Exhibit "A", p 87]
After Dr Huntsman's brief introductory oral evidence in chief, in which he outlined his professional experience of dealing with suicide issues, his understanding of the effects of some of the prescribed drugs found at the deceased's home, and his understanding of the deceased's mental state as gained from the general practitioner's records (T45 - T49), he was extensively cross-examined, followed by a brief re-examination.
The defendant sought to challenge Dr Huntsman's opinions through cross-examination, and by argument that was not supported by evidence contradictory to the views he had expressed in his evidence in chief.
Significantly, Dr Huntsman doubted that the deceased had intended, or was attempting, suicide using Zopiclone. In expressing that view, he pointed to circumstances where she had available to her 3 boxes of Tramal which was an opiate, which if all had been taken at the one time, would have had the effect of causing her breathing to stop, followed by certain death: T46.46 - T47.21. The plaintiff pointed to that evidence as forming the basis for a rejection of the defendant's assertions of suicide or intentional self-inflicted injury by the deceased.
Dr Huntsman expanded upon his opinion that there was no evidence that the deceased had a depressive illness. He did so by explaining that diagnosis required the presence of a minimum of two weeks of daily depressed mood, and her general practitioner had never treated her with anti-depressants, therefore contraindicating the existence of such an illness, suggesting instead, bouts of anxiety in the context of personality dysfunction: T48.9 - T48.30.
Dr Huntsman also pointed to the absence of evidence of activity on the part of the deceased showing preparation for death, and the fact that the deceased had undergone a recent colonoscopy, as evidence which was inconsistent with someone being depressed and suicidal: T49.1 - T49.10. The fact that the deceased had recently undergone significant dental treatment also reinforced that view.
The defendant raised a number of topics with Dr Huntsman in cross-examination. Those topics are identified below by reference to Dr Huntsman's responses, which were as follows: 1. There was no evidence in the clinical records to suggest the deceased had stressors in her life such as a major affective disorder, psychosis or organic brain syndrome, which would increase the risk of a suicide. Dr Huntsman differentiated between the presence of depression and major depression according to DSM V criteria, the latter requiring there be a depressed mood every day for a minimum of two weeks throughout the day: T51.10 -T51.39; 2. Dr Huntsman explained his opinion according to the three major ways in which depression was classified. These were first, depression with a chemical basis requiring physical treatments, secondly, reactive depression, and thirdly, depression arising from underlying personality issues, such as insecurity, low self-esteem due to childhood events and an associated lack of validation, sometimes described as characterological depression, due to the reaction of the individual to life's events according to personality characteristics, but with all of those types of depression producing similar symptoms albeit from different mechanisms: T52.19 - T53.14; 3. Dr Huntsman differentiated between the description of depression as mentioned in the context of Dr Chamberlain's notes, namely mention of severe depression with anxiety and panic, without a proper psychiatric assessment, as being an insufficient basis upon which to diagnose a major affective disorder, although such a diagnosis was certainly possible: T54.32 - T54.45. On that evidence, without further explanatory expert evidence, the defendant cannot expect a court to reliably adopt an analysis which concludes that the deceased had a major affective disorder, where her treating doctors did not record such a diagnosis: Strinic v Singh [2009] NSWCA 15; 4. Dr Huntsman acknowledged that it was well documented in the deceased's records that she had depressive symptoms, but this did not equate to a major depressive disorder: T61.8 - T61.13; 5. Dr Huntsman interpreted Dr Chamberlain's records as supporting a diagnosis of a panic disorder, not a mood disorder such as a major depressive disorder. His expert analysis was that if the deceased had a major depressive disorder, he believed that Dr Chamberlain (whom he considered to be a sound general practitioner of good reputation) would have described it in those terms: T54.8; 6. Dr Huntsman was asked to consider some of the medications discussed in Dr Chamberlain's medical records relating to the deceased. In particular, he considered the selective serotonin reuptake inhibitor (SSRI) Serepax, a benzodiazepine which has the potential to cause dependency, Avanza ("Sample Avanza to try"), a sedative antidepressant, and Endep, another sedative antidepressant. He considered the Serepax prescription, comprising half a 30mg tablet, to be a low dose: T55.31 - T56.19. There was no evidence in Dr Chamberlain's prescribing records of any prolonged use by the deceased of either Avanza or Endep in the lead-up to her death; 7. Dr Huntsman stated that when reading Dr Chamberlain's records forward in time from 15 November 2005, there was focus in those notes of an emerging theme of depression in the context of anxiety and panic attacks, but the impression he gained was of episodes of recurring depression, without a consistent pattern, such as that seen in individuals who are depressed: T56.28 - T56.46; 8. Dr Huntsman was asked to consider Dr Chamberlain's recorded history mentioning the deceased as having manic episodes according to a history attributed by the plaintiff. Without intending any criticism of the plaintiff, whom Dr Huntsman had not interviewed, Dr Huntsman said he considered the lay use of the word manic as being open to be highly misused, implying hyperactive excitable behaviour. He explained that for diagnostic purposes, a manic episode required a minimum duration of a week, typically associated with a decreased need to sleep, accelerated speech, racing thoughts, jumping about from topic to topic, grandiosity, and extreme or indulgent reckless spending: T57.15 - T57.41. 9. Dr Huntsman also dismissed as "pretty rare", a common misconception comprising the notion of mood swings from one extreme to another as being a feature of a bi-polar condition, or a manic episode: T57.43 - T57.47. He thought there was no solid evidence that the deceased had bi-polar disorder: T58.50; 10. Dr Huntsman considered that if the deceased had bi-polar disorder, he would have expected to have seen a lot more evidence for that proposition within her medical file: T59.14. He stated that a referral to a psychologist for bi-polar disorder would not have been appropriate if that condition had been truly diagnosed, as treatment for bi-bipolar disorder, a "most biological condition", involved prescribing medication that was not available to psychologists as a treatment option: T60.4 - T60.21; 11. Dr Huntsman stated that SSRI medication is prescribed as a treatment for patients suffering "depression and anxiety": T59.29. In the described context, I read that evidence to refer to those entities as a combination entity, and not in the individual alternatives; 12. Dr Huntsman considered the details within the notes from the deceased's consultation with Ms Sloan. He interpreted them as indicating the deceased was at that time dealing with unresolved grief, manifested by sadness every day. However, without evidence, he was not prepared to assume those symptoms continuously went all the way back to August 2003: T62.13. Dr Huntsman agreed that the deceased's reported history of not understanding why she could not "let go of her father" was a grief reaction that was not uncommon, but neither was it the norm, and it suggested that just a little over 2 years after her father's death, the deceased was suffering from pathological grief: T62.33 - T62.45; 13. Dr Huntsman further agreed that the note of 15 November 2005 cited from Ms Sloan's records was suggestive of someone who was depressed at that time: T63.12. Dr Huntsman further agreed, on balance, that Ms Sloan's note provided some evidence that the deceased was suffering from a major depressive condition in November 2005: T63.22 - T63.29. That said, there was no evidence for the speculative proposition that such a condition, if it existed at that time, continued to affect the deceased without abatement, until her death on 31 January 2009; 14. Dr Huntsman agreed that on a review of Dr Chamberlain's records, the conclusion that was open at the time Ms Sloan saw the deceased, was that as Dr Chamberlain knew his patient well, his assessment may have been that there was no point pushing her at that time (being some 3 years before her death), and it was better to wait for a suitable opportunity when she would be more receptive to pursuing treatment: T64.15 - T64.21. In the absence of evidence that is contradictory, that interpretation by Dr Huntsman appears to be a reasonable one, but it nevertheless still involves considerable speculation; 15. Dr Huntsman agreed that Dr Chamberlain's notes at around the time the deceased saw Ms Sloan, indicated the deceased was suffering serious symptoms of depression, and that those symptoms were distressing for her, and that she was not receiving any formal treatment for depression and anxiety after that time: T64.25 - T64.44; 16. Dr Huntsman agreed that untreated, depression represented an increased risk of suicide, assuming that the depression had continued, as the interval between those notes in 2005, and the death in 2009, was a relatively long interval of time: T64.45 - T65.2. In that regard, and significantly, Dr Huntsman pointed out that a recorded history of depression four years earlier, is not relevant unless the depression continued. He made the point that, on his analysis, the records did not point to a relevant conclusion, as he would have expected to see a record of such symptoms within a few weeks of an assumed attempt at suicide before attaching weight to described symptoms of depression: T66.5 - T66.17. That seems to be a reasonable analysis given the frequency with which the deceased consulted Dr Chamberlain's practice for her various other health issues. I will therefore proceed on the assumption that if the deceased was seriously or continually depressed for significant periods, Dr Chamberlain, or others in his practice who saw the deceased in professional consultations, would have observed this, and would have noted such a diagnosis; 17. Dr Huntsman's "could be" type acknowledgments to questions posed by the cross-examiner to the effect that the deceased may not have been "fully disclosive to Dr Chamberlain of her psychological condition" illustrates the speculative nature of the analysis relied upon by the defendant: T69.17 - T69.26; 18. Dr Huntsman stated that he expected that the notes of Dr Chamberlain to which he had been referred, would have been consistent throughout the medical record if the deceased had in fact suffered from chronic depression, being depression that was evident for 2 years: T65.10 - T65.17; 19. Dr Huntsman stated that although the notes prepared by Ms Sloan provided an important part of information gathering, relevant to the task at hand, he also observed that in the course of an interview such as that conducted by Ms Sloan, a clinician also looks for physical signs: T66.30 - T66.44. I infer that he was speaking of physical signs of depression; 20. Dr Huntsman was taken to Ms Sloan's notes of 1 December 2005, in which a comparison was sought to be made with Dr Chamberlain's notes dated 18 September 2005. Dr Huntsman interpreted Dr Chamberlain's notes as indicating he was aware of not only the deceased's physical symptoms, but that he had also picked up on her psychological problems in 2005, hence the referral to Ms Sloan. Dr Huntsman considered that this context raised several possibilities; one being that the deceased never discussed emotional issues with Dr Chamberlain; another being that she did so occasionally, and another being she did not have such symptoms because at the time she saw him, he made no notes of such things: T68.30 - T68.45; 21. In aid of demonstrating his point of view as summarised in sub-paragraph (20) above, Dr Huntsman drew attention to the phenomenon of a person giving conflicting histories of psychological issues at different times, months apart in different contexts, which did not necessarily raise credit issues: T69.1 - T69.10; 22. Dr Huntsman considered that the death of the deceased's father several days before her 22 August 2003 hospital admission was an acute life stress: T73.44. That said, it must be noted that the deceased had disputed that she had attempted suicide at the time: T73.29; 23. Dr Huntsman considered that the description of the note the deceased left at the scene where she was found on 22 August 2003, non-specifically stating "you have left me", could, as one of the possibilities, reasonably be interpreted as a suicide note. He conceded it could even be the main possibility, and it could have represented a "clue as to what might have been going on" (T75.1 - T75.4), noting the deceased was heavily intoxicated on that occasion: T75.10 - T75.13. That evidence was based on the assumption that the note was contemporaneous of the events of 22 August 2003; 24. Dr Huntsman seemed to discount the note found on 22 August 2003 as a suicide note because, if someone was depressed, a suicide note would usually be expected to be a lot more detailed, however, on the other hand, where someone was intoxicated, a note in those terms might be consistent with a suicide note: T75.20 - T75.25. The state of the evidence regarding that note does not permit a reasoned concluded view as to what the deceased had intended by that note at the time it was written, whenever that occurred; 25. Dr Huntsman said that the ingestion of 10 - 15 Imovane tablets was additive to the effects of alcohol intoxication: T75.28. However, and interestingly, he added the significant qualification that the effect of the combined ingestion of alcohol and Imovane on 22 August 2003, only made the deceased "just a bit drowsy", and she received no active treatment at the hospital, such as for example, being admitted to intensive care for medical treatment: T75.30 - T75.33; 26. Dr Huntsman considered that the 22 August 2003 episode was suggestive of an impulsive overdose because, on the following day, the deceased was denying there had been a suicide attempt: T75.45 - T75.1; 27. Dr Huntsman explained that one of the effects of alcohol is to reduce the effect (ability) of the (cerebral) cortex to inhibit behaviour and emotions, so that people experiencing the effects of alcohol often become much more emotional, more impulsive, and have impaired judgment. He also identified examples of persons who, whilst not being suicidal, when heavily intoxicated, can become emotionally disinhibited in their behaviour: T75.12 - T75.19; 28. Dr Huntsman stated that it was usual for patients to accept help when extremely distressed, and it was uncommon for them to deny a suicide attempt in those circumstances: T77.44 - T77.48; 29. Dr Huntsman agreed that it was possible, and not uncommon, for suicide attempts, being impulsive attempts, to be denied as being suicide attempts after the person no longer felt suicidal, whether because of shame after the event, or just denial: T80.5 - T80.20; 30. Dr Huntsman agreed that it was not an uncommon occurrence for overdoses to be a cry for help and not a suicide: T80.22 - T80.28; 31. Dr Huntsman stated that the question of whether or not an overdose should be seen as an attempt at self-harm depends upon whether the person thinks that it is actually going to do them harm: T80.30 - T80.33; 32. Dr Huntsman stated that although pain can be a stress, chronic pain is, by definition, not acute. He considered that chronic pain was not an acute life stress, and he observed that chronic pain is not commonly associated with suicide. Chronic pain associated with suicide is strikingly rare: T87.6 - T86.14. That evidence was given in the context of the deceased having a chronic painful shoulder condition (T87.37) and where the deceased had complained of what could be interpreted as significant pain in her shoulder: T89.27; 33. Dr Huntsman stated that acute life stresses are divorce, death of a spouse, loss of employment, financial catastrophe and bankruptcy, namely severe and sudden events; chronic pain from the deceased's shoulder problems is not in those categories, such that Dr Huntsman thought that the deceased's shoulder pain was an unlikely hypothesis as a cause of the deceased taking her own life, as postulated by the defendant: T90.17 - T90.33.
Dr Huntsman was asked to consider the deceased's 22 August 2003 hospital admission, and stated that it was important to distinguish between overdoses and suicide attempts, as not all overdoses are suicide attempts, and one of the tasks of the admitting doctor was to tease out as to which category that admission related: T72.29 - T72.33. In identifying that point, Dr Huntsman noted the ingestion of 10 - 15 Imovane tablets was not a fatal dose (T72.30) although it was a significant overdose, but that does not mean it was a suicide attempt: T73.15 - T73.17.
Dr Huntsman acknowledged the possibility that the circumstances of 22 August 2003 may have been a suicide attempt in view of the deceased's high blood alcohol reading (0.178), the overdose of Imovane, the recent death of her father, and the presence of the earlier referred to note: T76.14 - T76.18. Dr Huntsman also acknowledged that if there was a suicide attempt by the deceased on 22 August 2003, this meant that in considering the circumstances of the deceased's death in January 2009, that consideration would have to take place against the background of a prior history of suicidality: T76.20 - T76.23. This issue will be taken up in the consideration of Issue 2.
Dr Huntsman identified the obviously speculative nature of trying to look back at the 2003 events involving overdose and to seek to second-guess what took place: T 76.12.
In deciding whether or not the circumstances of the deceased's hospital admission on 22 August 2003 concerned an attempted suicide, it is important to consider the objective evidence of the contemporary circumstances: Fox v Percy [2003] HCA 22; 214 CLR 118, at [31]. Relevant aspects of those circumstances are: 1. Dr Powditch, who undertook a clinical assessment of the deceased at the hospital at that time, felt it was not a suicide attempt, but that it was an accidental overdose without suicidal ideation in the context of possible alcohol abuse, given the absence of a history of depressive symptoms at that time, and a converse history of the deceased's acknowledgment of positive factors in her life, such as having a loving husband, a son and three animals: T76.30 - T77.42; 2. Dr Powditch had assessed the deceased as being euthymic, or of normal mood, indicating that if she had been distressed earlier, she was no longer distressed: T78.5 - T78.24. 3. Although Dr Huntsman accepted that the deceased had on the occasion of that hospital admission, been intoxicated, had taken an overdose of Imovane, and had been distressed over the death of her father, he did not consider from the terms of the Schedule 2 form under the Mental Health Act 1990, that had been completed by Dr Hall, that the deceased was mentally ill on 22 August 2003. This was because the terms of the Schedule stated that she had been assessed as being mentally disordered as distinct from being mentally ill. The former condition required she be scheduled for 24 hours, as distinct from the latter formulation, which would have required that she be held for a week: T79.33 - T79.47.
Dr Huntsman had his attention directed to Dr Nicoll's handwritten notation on the facsimile referral of the plaintiff to the hospital on 22 August 2003, to the effect "OD suicide attempt": T85.11 - T85.15. Dr Huntsman gave the following explanation of his view of the significance of that notation by Dr Nicoll: "WITNESS: Yes, look, clearly the assumption has been made by Dr Nicoll that the overdose was a suicide attempt. It may have been a suicide attempt. That wasn't the opinion of the registrar when she was assessed in hospital the following morning. You know, it's something that if I was seeing the patient obviously I would explore, it's difficult to draw conclusions as to whether Dr Nicoll's assessment is accurate or not. Clearly Dr Nicoll has drawn the conclusion that it was a suicide attempt and that may or may not be a reasonable conclusion and it really depends on how thoroughly Dr Nicoll assessed the patient." [T85.31 - T85.39]
Dr Huntsman was asked to explain what significance he would place on that note by Dr Nicoll. His explanation for placing little weight on that note was as follows: "A. If I was receiving a note like this, I would take note of the fact that the doctor thought it was a suicide attempt. I would then evaluate how reasonable a conclusion that was. I wouldn't attach a great deal of weight to it in terms of assessment unless I was provided with more information as to how thorough that assessment was. And you know, in particular, how familiar Dr Nicoll was with the patient, how much information was available to her and how long she'd spent assessing the patient. The note that's in front of me here doesn't really say enough of that. It does comment that the patient's ataxic, confused and I'm not sure what the next word is, and drowsy and smells of alcohol. So you know, that's consistent with the assessment when she arrived in the emergency department. My suspicion is that alcohol is a much bigger factor here than has really been focused on. MCCALL ... Q. It must be obviously, would it not, the recording of the ingestion of 18 7.5 milligram Imovane tablets is highly suggestive of an overdose isn't it? A. Absolutely, yes. Q. And as we were discussing yesterday, you recognise in your report that overdose is the common method of suicide for women of Mrs Vaccaro's age, that's right isn't it? A. That's right. But it's also true that the majority of overdoses are not suicide attempts, so that needs to be borne in mind as well. Q. What about an attempt at self harm? A. That's yes, it's very commonly an attempt at self harm." [T86.2 - T86.42]
Dr Huntsman was taken to the historical matter of the deceased's Imovane prescriptions dating back to 2000 (T90.47), this comprising one tablet per night as needed, and the history of at some stage taking half a tablet to get to sleep: T90.42 - T91.3. In connection with the post-mortem level of Zopiclone, Dr Huntsman stated that he was aware of a view that the level found on post-mortem analysis of the deceased's Zopiclone levels was said to have been approximately ten times the high range level compared to having taken one tablet, and in that regard, he considered it was a significant overdose of not just two or three tablets: T93.3 - T93.18.
In giving that evidence, Dr Huntsman stated that it was difficult to draw any further conclusions other than the last cited view. He noted that in addition to an empty blister pack found, there were only 5 tablets missing from a partly used blister pack found at the deceased's home, and the last prescription was written several months previously, in October 2008: T93.20 - T93.25.
In making reference to the October prescription for Imovane, Dr Huntsman has apparently overlooked the prescription for Imovane on 22 January 2009: Exhibit "A", p 52. In view of the fact that there were 25 Imovane tablets left in the incompletely consumed blister pack found at the scene, and given that the 7 October 2008 prescription was some 86 days before the 22 January 2009 further prescription, I consider that nothing of consequence turns on the fact that Dr Huntsman did not refer to the 22 January 2009 prescription date. Either way, the deceased had Imovane tablets available to her, and it appears that she did not take all of the tablets that were available to her on the day she died.
Specifically, Dr Huntsman identified a number of factors that impacted on the difficult task of establishing how many Zopiclone tablets had been taken by the deceased, as stated in the following extract of his evidence: "Q. Yes, doctor? A. Okay, the level found in Mrs Vaccaro which you've quoted is in excess of the normal levels obtained, taking one zopiclone tablet and, therefore, it's it's reasonable to conclude that she took in excess of the normal dosage. What is difficulty to establish is the exact number of tablets that were taken because there's several factors that can influence the blood levels that are achieved after administration of a dose of medication. One is the mass of the individual. A second critical or important factor is the speed with which the medication is eliminated by the body by the liver. There's the rate of absorption from the stomach, it can be variable, depending on what's in the stomach. So there's, you know, a number of factors that influence the blood level that's obtained after the admission of a drug. However, it's clear that the level in Mrs Vaccaro is in excess of what would normally be taken sorry what would normally be achieved. MCCALL Q. To be able to say that, presumably, there must be a number or a reading which would be the normal amount to be achieved simply by taking one tablet? A. Yes. HIS HONOUR Q. Is it a reading or a range of readings? A. There's normally a range. I'm aware that the level that was found in Mrs Vaccaro is approximately ten times the high level of the range. MCCALL Q. That would suggest to you, would it not, that the overdose was a significant one? A. Is certainly suggests there was a significant overdose. It wasn't two tablets or three tablets. Q. Yes? A. It's difficult to draw any conclusion also further than that, though. There were only five tablets missing from the blister black and the empty pack was dispensed you know, the prescription was written several months previously, in October. So, it's you know, it's very uncertain as to how many remained in that empty pack." [T92.36 - T93.25]
In the context of what might be considered to have been a "normal range" for Zopiclone (T94.16), which appears to be a reference to a therapeutic range, whereas the post-mortem level was found to be 1.2mg/L, Dr Huntsman pointed out one could not necessarily conclude the deceased had taken 10 tablets of Imovane as an exact number. He said that one could not conclude that number had been taken any more than it was clearly more than one or two (or three) tablets. He explained that the detection of 10 times the therapeutic levels does not necessarily mean 10 tablets were taken, although he did agree that what was taken by the deceased amounted to a significant overdose: T94.31 - T94.39. That evidence was not contradicted.
Dr Huntsman agreed that the overdose could easily have been an act of self-harm or a similar act, but on the question of whether it was a suicide attempt, he had yet to see evidence that the overdose was either an act of suicide or an act of self-harm: T94.45 - T94.49.
In re-examination, Dr Huntsman was taken to page 80 of Exhibit "1", which recorded some positive features of the plaintiff's presentation to Ms Sloan at interview on 1 December 2005. He commented on that evidence as follows: "Q. That was in December of 2005 and history included that she reported tears and crying every day. If you have regard also to page 80 of the defendant's bundle, the history, "Fun, cooking, animals, like my life" and before that, "Husband, Patrick, supportive", does that suggest that the tears and crying every day might be somewhat of an over dramatisation of the situation? ... Q. Dr Huntsman, in light of the entries on page 80 to which Mr Callaway has taken you what relative weight do you put on the history of crying every day and sad, that is when weighing up the two extremes demonstrated on this page? A. Yes, clearly they're inconsistent and you know, my interpretation is that Mrs Vaccaro is like many patients that we see, fairly I guess variable in the way she describes herself at any particular time. It does mean that with patients like this, you have to not treat as gospel any particular symptom in isolation and try and look at the longitudinal pattern and the overall picture. CALLAWAY Q. So that would be something to be borne in mind when reaching a diagnosis either of clinical depression or not clinical depression, is that correct? A. Yes. Yes, you would consider other factors such as some developmental issues, personality factors and I think with this particular patient, the thing that's very notable is her alcohol consumption." [T96.19 - T96.50]
Dr Huntsman was also asked to consider the different types of overdose possibilities: "Q. Thank you Doctor. So if I could ask you about the event in 2003 you of course were cross examined about that yesterday, and you were taken to various or at least the Lismore Hospital notes, Doctor, can I just ask you this to start with, in terms of types of overdose, is it the case that there are perhaps three types that could be described as first an accidental overdose, simply inadvertently taking too many tablets. Secondly an intentional overdose but without any intention of taking one's life, and then thirdly, a serious attempt at suicide? ... WITNESS: Yes, I think that's a fair summary. I think I actually suggested that yesterday. CALLAWAY Q. So that if as was the case, Ms Vaccaro was adamant that she hadn't taken an overdose, this is in 2003, and she just wanted to sleep because of her chronic insomnia, and because of her circumstances, and assume that as she said that or is recorded at page 57 that she had no suicidal ideation and she has a loving husband and son and three animals, that's entirely consistent with her just either inadvertently taking too many tablets or perhaps even deliberately taking too many tablets, but more than the prescribed dose, but clearly with the intention of getting some sleep, is that right? A. It could be. Q. Doctor, if I may then just ask you about 2009, when Ms Vaccaro drowned, we know that there were at least 25 additional Imovane tablets available to her when she took whatever number it was she took on the day of her drowning, that being the case, does that inform your view as to whether it may well have been a desire on the part of Ms Vaccaro just to get some sleep as may have been the case in 2003? A. Yes, it's certainly possible, it's striking that there was only five taken from that packet and that therefore 25 remained. But I guess what's against that is the hour of day that it happened, but it's certainly possible that in both cases she was simply taking tablets to sleep. Q. And when you say the hour of the day is that because generally speaking people sleep at night? A. Yes. Q. If you assume that her husband was unwell and he was asleep upstairs and that she had a very poor night's sleep the night before, then that would diminish the significance of the hour, is that right? A. Yes, if she was choosing to go to sleep at that hour, then that would then fit." [T97.35 - T98.37]
Dr Huntsman was also asked what weight he placed on Dr Beer's supplementary post-mortem report in arriving at his own conclusions: Exhibit "1", p 108. He responded as follows: "A. I placed a great deal of weight on the blood level of Zopiclone because it's clearly elevated. So it indicates to me that she did not take half or one Zopiclone. So that was the most significant finding. The other relevant aspects of the report is if you look at page 103, there's screening tests for lots of other substances and in particular opiates, there is none detected, which she had at hand. We referred yesterday to the range of substances she had available to her. That's the other factor that I took note of. ... WITNESS: Thank you, I should just finish that last answer, I also took note of the blood alcohol reading." [T99.24 - T99.42]

Rejection of forensic pharmacology report

The defendant sought to tender a report dated 27 June 2012 from Dr Judith Perl, a forensic pharmacologist, whose report had been commissioned by the coroner. The plaintiff objected to the tender of that report, and after argument (T8.16 - T31.24) the tender was rejected with short reasons then given, with the indication that the reasons for rejecting that report would be more fully set out in this judgment: T31.30; Short reasons 10 November 2015, p 2. In addition to the short reasons outlined on 10 November 2015, including those articulated during argument, those reasons are now more fully set out as follows.
Essentially, the plaintiff's objection was that as the report of Dr Perl had been served by the defendant out of time, that is, less than 28 days before the commencement of the sittings, according to the requirements of UCPR r 31.28(3), the defendant was required to demonstrate exceptional circumstances to justify the tender in the face of non-compliance with the rules for service, given the plaintiff claimed that prejudice would relevantly arise if leave was granted. For the purpose of its application, the defendant read the affidavit of Catherine McAdam, solicitor, affirmed on 5 November 2015.
The chronology of events concerning service of the report of Dr Perl was that in the course of correspondence comprising the pursuit and supply of particulars, on 28 January 2015, pursuant to a request to do so, the plaintiff's solicitor advised the solicitor for the defendant of the particulars of evidence considered by the coroner. Included in that list was Dr Perl's report, and at that time, the plaintiff's solicitor provided the defendant's solicitor with a copy of that report.
At a directions hearing on 15 January 2015, the plaintiff was ordered to serve his evidence by 25 March 2015. The effect of non-compliance with that order would have precluded reliance by the plaintiff at a trial on material not served in accordance with that order. In conformity with that obligation, by letter dated 12 February 2015, the plaintiff's solicitor advised the defendant's solicitor that the plaintiff would rely on the evidence identified in the earlier correspondence. This meant that the report of Dr Perl dated 27 June 2012 was included in that category.
Importantly, that correspondence did not include an undertaking on behalf of the plaintiff to tender Dr Perl's report. There was always scope for those advising the plaintiff to structure the body of evidence to be relied upon at a trial to either include or jettison material that had been served on the defendant, as was thought appropriate. Ultimately, the plaintiff's representatives made the tactical decision not to tender Dr Perl's report. Accordingly, it was not included in the plaintiff's tender bundle: Exhibit "A".
In advance of the trial, the plaintiff's solicitor was required to serve a copy of the index to the plaintiff's documents to be tendered at trial. Dr Perl's report was not listed in that index.
It was always a decision for the defendant as to what evidence it would seek to tender at the trial. Service of Dr Perl's report by the defendant could have been effected by physical service of a copy of documents or through notional re-service, by indicating in correspondence that documents in possession of the plaintiff and already served on the defendant, would be relied upon by the defendant.
The defendant chose to re-serve Dr Perl's report on the solicitor for the plaintiff on 21 October 2015, which was 5 days before the commencement of the sittings of the Court at Lismore: T8.43. On 30 October 2015, the plaintiff promptly indicated that objection would be taken to the defendant's intended reliance on that report at the trial: T8.48.
The defendant acknowledged that it must show exceptional circumstances that justified the exercise of discretion for the late service of Dr Perl's report to be overlooked: T20.8. Exceptional circumstances cannot always be discerned by the application of generally formulated guidelines. Instead, a careful consideration of the facts of the individual case is required: NSW v Tyszyk [2008] NSWCA 107, following Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, at [66] - [67], adopting Awa v Independent News Auckland [1996] 2 NZLR 184, at [186].
The exercise of the discretion pursuant to UCPR r 31.28(3), sought to be invoked by the defendant, and opposed by the plaintiff, must be undertaken according to the dictates of justice, which means justice to both parties, whilst giving effect to the over-riding purpose of facilitating a just, quick and cheap resolution of the real issues in the proceedings: s 56 and s 58(1) and (2) of the Civil Procedure Act 2005.
Of some relevance to that consideration was the wider context of the hearing: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [93]; [113].
Here, that context was a running list with many matters listed, including cases previously marked not reached from earlier sittings, where cases were waiting to be called on, with expectant parties and practitioners relying on priority cases proceeding efficiently in accordance with their estimates to ensure that the limited allotted court time on circuit is fairly and equitably utilised as a public resource for the resolution of disputes. This was also in circumstances where two child care appeals, which had absolute priority, had already taken up seven of the ten initially available sitting days, which fortuitously resulted in an additional 5 days being allotted as an extension of the sittings to provide the other waiting litigants an opportunity to have their already delayed cases heard, thereby avoiding not reached markings. Those considerations were known to the parties: T22.38 - T22.47.
During argument (T8.16 - T31.24), the respective positions of the parties were identified and explored on the question of whether the defendant had shown the existence of special circumstances, and whether the plaintiff would be prejudiced by the prospect that the defendant be excused from compliance with UCPR r 31.28(1)(c), which required that the report of an expert be served on the opposing side no later than 28 days before the date for the hearing.
In essence the defendant's claim of special circumstances, for relief from the requirements of UCPR r 31.28(1)(c), was that this case involved an unusual set of circumstances in that the plaintiff, having had an awareness of the content of Dr Perl's report "for quite some time" (T31.9), and having made an earlier decision to rely on that report, and then having abandoned that decision, the plaintiff should not be taken to be unable to deal with the report if relied upon by the defendant. That submission was replete with unwarranted assumptions, including the assumption that the plaintiff was able to deal with Dr Perl's report.
In contrast the plaintiff submitted there were no exceptional circumstances shown by the defendant: T28.48 - T29.21. The plaintiff claimed prejudice arose in that Dr Perl's report could not be met: T8.27.
For the reasons that follow, I accept the submissions made by the plaintiff, by reference to the considerations of s 58(2) of the Civil Procedure Act 2005: 1. The defendant was not timely in its interlocutory activities, and did not approach the issues with due expedition, in that the decision to communicate its intended reliance on Dr Perl's report was not only belated, but it was not in compliance with the rules for service: s 58(2)(b)(ii) of the Civil Procedure Act 2005; 2. As at 29 June 2015, the defendant was in acknowledged breach of the Court's directions timetable requiring it to serve its evidence by 27 May 2015: Annexure "G" to the affidavit of Catherine McAdam, comprising a letter from the defendant's solicitor to the plaintiff's solicitor. In that letter, the defendant asserted that it was unable to determine what evidence to serve. There was no explanation as to why the defendant at that time did not indicate its reliance on Dr Perl's report if that was to be an essential plank in its case. Instead, the defendant delayed that decision, possibly under the belief it might be able to secure a tactical advantage by cross-examining Dr Perl rather than calling her evidence in chief by tendering her report. That position carried the litigation risk which crystallised in this case when the plaintiff decided, as was legitimately open to him, not to rely on Dr Perl's report. The combination of the defendant's tactical decision, and its non-compliance with previous court orders, has led the defendant to undermine its own position: s 58(2)(b)(iii), (iv) and (v) of the Civil Procedure Act 2005; 3. The defendant sought to overcome the tactical disadvantage of its own creation, to the procedural disadvantage of the plaintiff, which I consider would cause the plaintiff injustice: s 56(2)(b)(vi) of the Civil Procedure Act 2005; 4. The considerations relevant to the latter conclusion are: 1. If leave were to be given to the defendant to rely on Dr Perl's report, this would necessitate the plaintiff having to make tactical adjustments, including seeking to retain at short notice, an expert of like qualification to Dr Perl to assist to test her conclusions through questions in cross-examination. This would be an unanticipated cost and likely source of delay. Whilst the costs associated with such an exercise may be able to be met by an appropriate compensatory costs order, the concomitant delay in stressful, long running, and already costly litigation, could not be the subject of compensatory orders; 2. If the scenario of obtaining an expert with like qualifications to Dr Perl as outlined in sub-paragraph (4)(a) above was not practicable, which seems very likely to be the case in the circumstances of a running list in a remote rural centre, the plaintiff would have been obliged to seek an adjournment in order to try to meet the changed circumstances. In that event, the factors identified in sub-paragraph (4)(a) above would be aggravated, and serve to entrench the injustice that arises. That position was compounded by the defendant's failure to comply with a further court order made on 1 July 2015, requiring it to identify, by 13 July 2015, the evidence upon which it intended to rely; 3. In modern litigation, the effects of trial by ambush, which has the effect of disadvantaging the opposing party, should no longer be countenanced: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) NSWLR 116, at [26], [28]; White v Overland [2001] FCA 1333, at [4]; 4. Another consideration is the knock-on effect of disadvantaging and delaying other litigants waiting their turn to bring their cases before the court by displacing them to another time, and at a further cost. That too is a circumstance that should be avoided, except where the difficulty has arisen due to blamelessness on the party seeking the exercise of discretion. That is not the case here, because without reasonable cause, the defendant failed to comply with timetabling directions for the service of evidence: s 58(2)(b)(iii) of the Civil Procedure Act 2005. It is no answer for the defendant to say that it was waiting for the plaintiff to serve evidence. The state of the pleadings indicate that it was always the case that the defendant had the onus of proving the applicability of the policy exclusions it claimed, and it must therefore have been known to the defendant that this required the timely service of evidence it wished to rely upon in order to seek to discharge that onus; 1. In weighing the degree of injustice that a party might suffer by a refusal to the grant of leave the defendant seeks, it seems to me that the plaintiff would, without fault on his part, be the one to suffer the greatest injustice if the leave sought by the defendant was granted. This would appear to be so because: 1. The resources of the plaintiff, an individual, and the defendant, an insurer, are plainly unequal; 2. In this case, the parties should be held to the consequences of their decision to take a hearing date. The court file shows that at the request of the parties, on 1 July 2015, the parties took a hearing date for the sittings of the Court at Lismore commencing on 26 October 2015. That step necessarily required them to commit themselves to the financial and other obligations according to the Rules, and s 56 of the Civil Procedure Act 2005, including the allocation of their resources which would ordinarily accompany that step. At a subsequent status conference on 18 August 2015, the parties appeared before the Registrar, at which time the hearing date was confirmed. After that appearance, the defendant changed its tactical position by deciding it wanted to call evidence in chief from Dr Perl. That decision was communicated to the plaintiff just 5 days before the sittings were due to commence. In the circumstances, I consider that the leave sought by the defendant to relieve itself from the application of UCPR r 31.28, would cause manifest injustice to the plaintiff; 3. That injustice is plain from the terms of Dr Perl's report which, having regard to the issues, the plaintiff would have been obliged to challenge, notwithstanding that Dr Perl has given an acknowledgment of the Expert Witness code: UCPR, Sch 7.
That analysis requires a survey of the effect of Dr Perl's report.
Dr Perl approached the task of analysing the effects of Zopiclone as being "suggestive" of a level 10 times higher than the level expected from two tablets: Exhibit "1", p 127, par 5. Dr Perl also indicated that overdose from Zopiclone can result in drowsiness, a fall in blood pressure, respiratory depression and coma, where fatal overdose is rare with Zopiclone alone, and overdose may deepen coma or sedation due to other central nervous system depressants, such as alcohol: Exhibit "1", p 128, par 7.
Dr Perl identified some scope for variations in a person's tolerance to, and displaying the visible effects of, alcohol, depending upon the extent of their regular intake, and she identified the possibility of death at the blood alcohol concentration of 0.3g/100ml, and a likelihood of stupor or unconsciousness at the blood alcohol concentration of 0.217g/100ml, with some scope for variation due to the build-up of tolerance to alcohol in the case of heavy drinkers: Exhibit "1", pp 129 - 130, par 10.
Dr Perl identified some scope for variation in that persons with exceptionally high tolerance to alcohol may not display overt signs of drunkenness at the blood alcohol concentration of 0.217g/100ml: Exhibit "1", p 130, par 10.
Dr Perl raised a number of possible physical and psychological consequences relating to a blood alcohol concentration of 0.217g/100ml, including possible loss of consciousness, and possible cardiac arrest, with a possible interaction between the very high blood alcohol concentration and with significantly increased impairment and likelihood of stupor, unconsciousness, unsteadiness and inability to co-ordinate the actions of the deceased, such as with swimming: Exhibit "1", p 131, par 10 and par 11.
Dr Perl postulated "a real possibility" that the deceased had deliberately taken an overdose of Imovane, and she discounted the possibility of a "mistaken dose". The reason for discounting a mistaken dose was not apparent in her report. She also postulated the possibility of depression and impaired reasoning and possible suicidal thoughts: Exhibit "1", pp 131 - 132, par 11.
Not all of Dr Perl's expressed opinions were the subject of reasons of the kind and detail required by UCPR Sch 7, cl 5(1)(c), which requires that cogent reasons be stated for each opinion proffered. There was also wide scope for objection to some of Dr Perl's opinions concerning whether they were strictly within her expertise. Some of those opinions concerned medical matters, including within the discipline of the behavioural sciences, if not psychiatry.
An extensive voir dire examination on that question was plainly on the cards. Whatever the result of any such voir dire examination, the plaintiff would have needed to retain expert assistance to be at counsel's elbow to assist in dealing with the voir dire examination, or if not, then its consequences. Either of those courses would have involved significant expense and delay to the plaintiff.
All of those problems could have easily been avoided if the defendant had given timely consideration to the dynamics of the litigation and its timetabling obligations for the service of expert evidence as required by the Rules.
On 3 August 2015 the solicitor for the plaintiff wrote to the solicitor for the defendant clearly identifying 5 categories of documents the plaintiff intended to rely upon at the trial. None of those documents included the opinion of Dr Perl dated 27 June 2012: Annexure "J" to the affidavit of Catherine McAdam affirmed on 9 November 2015.
At that time, and in the ensuing weeks up until the expiry date for service of reports, it must have been plain to the defendant that the plaintiff was not intending to tender Dr Perl's report at the trial, whatever other impressions the defendant might have had until that time. It was therefore incumbent on the defendant to act promptly if it intended to rely upon Dr Perl's report.
Whatever was the reason for the delay in service of Dr Perl's report on the plaintiff's solicitor on 21 October 2015, for the purposes of a consideration of whether the defendant should be granted leave to rely upon that report pursuant to UCPR r 31.28(3), I consider that it constituted an ambush that contraindicated a grant of the leave sought by the defendant. In my view, the resultant prejudice to the plaintiff could not be cured by a costs order.
The tender of the report of Dr Perl dated 27 June 2012 was therefore rejected. The rejected report of Dr Perl has been retained in the defendant's tender bundle for the purpose of identifying its content and preserving the record of events should there be an appeal.
I now turn to a consideration of Issues 1 - 7 identified at paragraph [14] above calling for decision.

Issue 1 - Claimed attempted suicide / self-injury on 22 August 2003

An essential plank in the defendant's case is the claim that the deceased had previously either attempted suicide or self-inflicted injury. The defendant argued, based on the evidence of Dr Huntsman, that a history of previous suicidality was a risk factor for suicide: T70.22.
The defendant claims that the deceased's presentation to hospital on 22 August 2003 following an overdose of Zopiclone combined with the ingestion of a significant quantity of alcohol was, at least, an act of intentional self-inflicted injury by the deceased at that time.
To support that contention, the defendant relied upon the following evidence: first, the content of a note found at the deceased's home on 22 August 2003, and which was described a stating "You have left me" (Exhibit "1", p 65); secondly, the fact of the then significant life stress being that the deceased had recently experienced the death of her father; and thirdly, inferences from the described quantity of 10 to 15 Imovane tablets the deceased had admittedly taken, in combination with the ingestion of a significant quantity of alcohol.
In my view, the defendant's contended conclusion that the deceased's had attempted suicide or had intentionally self-injured herself in August 2003 is not a compelling one. For the reasons that follow, I decline to make the findings the defendant seeks in that regard.
First, the described content of the note to the effect "You have left me" was ambiguous, as has already been analysed at paragraphs [113] to [119] above. There was no compelling evidence to suggest the note was recent, or that it related to the recent death of the deceased's father, or that it was a suicide note, especially given the evidence of the plaintiff, which I accept, to the effect that the deceased had a habit of leaving little notes around for him to read. The note could equally have referred to the deceased's late father having died, or equally, it could have been addressed to the plaintiff. The significance and meaning of that described note cannot be resolved by a reasoned and non-speculative analysis arrived at on the balance of probabilities. There is no rational basis for preferring one of those possibilities to the other: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
Secondly, whilst accepting that the death of the deceased's father some four days before the 22 August 2003 hospital admission represented a significant life stress for the deceased, even when taken together with the associated, if not consequential period of the deceased's significant sleep deprivation, does not raise a compelling inference that the deceased intended either suicide or a self-inflicted injury on that occasion. In my view, this is especially so where the hospital clinicians who assessed the deceased recorded they accepted that the event did not involve an attempt at suicide, but rather, it involved the deceased simply trying to get to sleep in her sleep deprived state.
Thirdly, the quantity of Zopiclone taken by the deceased on 21 August 2003, which was said to be 10 to 15 tablets, in combination with the alcohol sufficient to result in a blood alcohol level of 0.178 at an uncertain time of testing, has not been shown to be a combination that the deceased ingested with the intention of self-injury or of ending her life at that time.
Instead, I accept the contemporaneously recorded assessment made by Dr Powditch to the effect that the 22 August 2003 events leading to the deceased's hospital admission involved a desire by the deceased to get a good sleep, in the context of a lack of knowledge on the deceased's part concerning the risks of taking medication she had been prescribed: Exhibit "A", p 41.
I also accept the deceased's account as recorded by the mental health care nurse who had spoken to her in a post-discharge follow up conversation in which the deceased stated that the event was an accident, and was a dreadful mistake in circumstances where she was exhausted, and where all she was seeking was to achieve sleep, without any intention of killing herself: Exhibit "A", p 20.
I am also persuaded to that view because following the deceased's discharge from hospital in August 2003, Dr Chamberlain, who reviewed the circumstances, seemed convinced by the deceased's adamant denial of a suicide attempt at that time, where the deceased had explained she was simply attempting to get more sleep: Exhibit "A", p 81.
I also accept the opinion of Dr Huntsman that the 22 August 2003 episode was suggestive, although not definitive, of an impulsive overdose, evidenced by the fact that following her recovery the next day, the deceased was denying she had attempted suicide: T75.45 - T76.1.
The mechanism by which an overdose could accidentally occur was explained by Dr Huntsman in relation to the later events which led to the deceased's death, namely that due to limited short-term recall for longer than three minutes, following alcohol ingestion, as cited at paragraph [192] above it was possible that the deceased many have accidentally taken more Zopiclone than she had intended, without an awareness that she was doing so: Exhibit "A", p 87.
Given the deceased's August 2003 denials that she had attempted suicide on that occasion, I consider that Dr Huntsman's explanation summarised in the preceding paragraph, is more likely than not applicable to the circumstances of the deceased's August 2003 hospital admission.
I therefore reject the defendant's proposition that the deceased had either attempted suicide or had intended to inflict self-injury on 21 or 22 August 2003 by ingesting a combination of Zopiclone and alcohol.

Issue 2 - Whether the deceased suicided

In its final submissions, the defendant accepted that there was no direct evidence concerning the immediate events that led to the deceased drowning in the swimming pool at her home. The defendant nevertheless submitted it should be inferred from the evidence that the deceased had ingested alcohol and sleeping tablets with a view to suicide.
For the reasons that follow, I do not accept the defendant's submitted proposition as the evidence to support it was scant and speculative. The weight of the evidence against that proposition was far more compelling than was the inference sought by the defendant.
Although the evidence disclosed that a history of previous suicidality is a risk factor for suicide (T70.22), for the reasons outlined in respect of Issue 1 above, I have found that the basis for the plaintiff's hospitalisation on 22 August 2003 has been mis-characterised by the defendant as either an attempted suicide or an attempted intentional self-injury. Accordingly, the claimed factor of previous suicidality is not a relevant consideration to be applied in this case.
Although the defendant argued that depression, whether treated or untreated, represented a substantial and increased or high risk for suicide (T65.25 - T65.50), and although the deceased's history of consultations for depression was a factor that should be weighed in favour of the contention that the deceased had suicided, I am not persuaded that the deceased's history of depression between the time of the death of her father in 2003, and during her grief reaction that followed, up until when the deceased saw the psychologist Ms Sloan in 2005, continued in an intensity that amounted to a major depressive disorder of the kind that Dr Huntsman considered to be a risk factor for suicide.
Evidence was given to the effect that an acute life stress can be a trigger for an impulsive suicide (T73.33), and acute or sudden life stresses can also be a factor in suicide: T90.17 - T90.33. However, there was no evidence to support the proposition that the deceased's situation at around the time of her death involved any acute life stresses.
Although the experience of pain was described as being a potential stressor, chronic pain, which is what the deceased experienced with regard to her shoulder problems, was by definition, not acute, and it was not commonly associated with suicide. Dr Huntsman thought that pain was a strikingly rare cause of suicide: T87.6 - T86.14. Given Dr Huntsman's overall evidence on that topic, I discount pain as a factor that might have led to suicide in this case.
Dr Chamberlain's letter dated 30 August 2010, as cited at paragraph [140] above shows, that as her treating general practitioner, he was not aware the deceased had expressed suicidal ideas. He considered that the varying degrees of depression and anxiety experienced by the deceased was mostly related to poor sleep, and to her various physical problems. From his reading of the records, he considered the deceased was relatively stable in her functioning at the time of her death.
In Dr Huntsman's expert review of the deceased's medical records, which I accept, he said he was not convinced the deceased had suicided (T94.45 - T94.49) or that she had a major depressive illness: T61.8 - T61.13. Whilst he agreed that there was documented evidence the deceased had on occasions reported depressive symptoms, this did not equate with a major depressive disorder (T61.8 - T61.13) of a kind that raised a convincing risk of suicide. A history of depression does not necessarily equate to suicidality. On that point, I consider that significant weight to the contrary of an argued inference of suicide should be placed on Dr Chamberlain's assessment that the deceased was not the sort of person to take her own life as she was too anxious about dying: Exhibit "A", p 82, as cited at paragraph [140] above.
Dr Huntsman postulated that the deceased's medical records did not reveal an emerging theme of depression, but instead gave the impression of recurring (or episodic) depression without a pattern: T56.28 - T56.46. That was a different disorder to a major depressive illness, which was a risk factor for suicide. Furthermore, Dr Huntsman thought drowning was an unusual means by which to try and achieve suicide in the deceased's situation.
Although Dr Huntsman acknowledged that alcohol abuse was a significant stressor and risk factor that can lead to suicide, although not as high a risk factor as depression (T69.35 - T69.43), it appears the deceased had consumed about 4 glasses of wine before she died, as was evident from the quantity the plaintiff estimated to have been left in the wine cask from which the deceased had obtained her wine on the day of her death: T141.6 - T141.20. That evidence did not suggest alcohol abuse. The fact that alcohol abuse was noted in 2003 did not mean that historical abuse 6 years earlier, necessarily continued unabated up until the deceased's death in 2009. The deceased's post-mortem blood alcohol concentration, although high (T99.42), did not of itself necessarily suggest the deceased was currently abusing alcohol as a behavioural pattern at the time of her death.
Although Dr Huntsman agreed that drug overdose is the most common method of suicide by women of the deceased's age (Exhibit "A", p 86; T 73.21), given that the defendant claimed the deceased took about 10 times the therapeutic dose of Imovane, which, it was argued, comprised at least 10 tablets, it was noteworthy that the deceased's previous accidental overdose in 2003, involved some 10 to 15 Imovane tablets, combined with alcohol, and that was not a fatal dose: T72.30.
I consider that it was very likely that the deceased would have known that fact in January 2009, based upon her overdose experience in August 2003. I find the fact that 25 unconsumed tablets of Imovane, which were found at the deceased's home, also rendered the defendant's suicide theory an unlikely explanation to support the defendant's suicide theory. If the deceased was intending to suicide using Imovane, it is more likely than not she would have taken all the Imovane tablets available to her, without leaving the 25 unconsumed tablets behind, as was found in a blister pack.
Whilst Dr Huntsman agreed that the ingestion of Imovane on 31 January 2009 could possibly have been a suicide attempt, he also identified the possibility that it was an accidental dose without suicidal intent: T47.50 - T48.4.
It is noteworthy that the deceased also had available to her 3 unconsumed boxes of Tramal capsules, which would have been a far more effective means by which to end her life, having regard to Dr Huntsman's explanation of how that medication would have caused her breathing to stop, leading to certain death, if she had taken that drug in quantity: T46.46 - T47.21.
I accept the evidence of the plaintiff, as summarised at paragraphs [80] and [92] above, which indicated that the deceased was planning ahead, looking forward to future events, and was thinking positively before her death, including planning surgical treatment for her shoulder, which seems inconsistent with the notion that she was planning to suicide.
In those circumstances, it is entirely speculative to suggest, without evidence, that the deceased had entered the swimming pool with the intention of drowning herself.
In arriving at those views, I have not overlooked the possibility that following the deceased's ingestion of alcohol, which could cause dis-inhibition, that the amount of alcohol she had consumed may have caused her to act suicidally through impulsiveness, and caused her to enter the swimming pool, following which she drowned. However, that proposition necessarily involves speculation, as does the proposition that the deceased's actions involved a cry for help as referred to at sub-paragraph (30) of paragraph [198] above, but gone wrong.
Another credible possibility is that the deceased's experience of vertigo, as was described by the plaintiff at T111.25, and which evidence I accept, may have caused the deceased to lose her balance, either whilst sitting or standing, and to then fall into the water, whereon she could have drowned, without any suicidal intent.
Those scenarios were equally possible. A preference for one possibility over another requires a reasoned resolution.
Where there are a number of speculative possibilities, as outlined in the preceding paragraphs, and they appear to be equally plausible, it is not permissible to choose by way of unreasoned guesswork, and to prefer one speculative possibility over another, and by that process, to then opt for a finding of suicide without a sound supporting reason: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. That is in effect the finding the defendant seeks in this case.
Dr Huntsman's concession that the deceased's post-mortem levels of Imovane relative to the prescription of one tablet at night as needed indicated she had taken an overdose of that medication (T91.7) throws no light on the deceased's intentions or her state of mind at the time she took those tablets in combination with alcohol.
In that regard, Dr Huntsman identified the plausible possibility that the deceased was just seeking to sleep, and took an excessive dose of Imovane in error due to short-term memory limitations in which the ability to recall events for longer than three minutes is lost, whilst affected by medication and alcohol, as cited at paragraph [192] above: Exhibit "A", p 87.
For the above reasons, I do not accept the proposition that the deceased's death on 31 January 2009 was due to suicide, as was submitted by the defendant. In my view, the defendant has not discharged its onus of proof in that regard.

Issue 3 - Claimed inference of intentional self-inflicted injury

As an alternative to the argued theory that the deceased had suicided, the defendant submitted that the deceased had ingested alcohol and sleeping tablets with a view to self-harm or intentional self-inflicted injury.
Dr Huntsman's evidence provides a degree of support for the defendant's alternative theory in the form of the fair concession that the 2003 event involving the deceased "could easily have been an act of self harm", as if that were the case, this could base an inference of previous suicidality.
However, that concession by Dr Huntsman, and that submission, should be read subject to the actual terms of the relevant policy exclusion relied upon by the defendant, namely "intentional self-inflicted injury": Exhibit "1", p 3.
On my assessment of Dr Huntsman's cited concession, I consider that it was only made in general terms as a possibility. This was in the context that Dr Huntsman's review of the evidence did not convince him that the 2003 event was a suicide attempt by the deceased: T94.46 - T94.48. In my view, the cited concession by Dr Huntsman does not provide a reliable basis for inferring, as was sought by the defendant, that the deceased had intended self-inflicted injury, either in 2003, or in the circumstances that ultimately led to her death in 2009.
A factor against the defendant's intentional self-inflicted injury theory is that there was no evidence that either Imovane or alcohol, to the respective levels found in the deceased's body on analysis after post-mortem sampling, would have led to injury of a kind contemplated by the terms of the policy.
The policy document does not define either injury or bodily injury. The definition section of the policy document uses the term bodily injury as a means by which to define an aspect of the meaning of the terms "Accidental Death" or "Loss of Use": Exhibit "1", p 2. The policy exclusions adjectivally refer to injury as "self-inflicted injury" without further definition.
In those circumstances, the individual words "intentional", "self-inflicted" and "injury" must be given their plain ordinary meaning according to their ordinary common usage in the context of a reading of the policy as a whole, with business efficacy in mind, to obtain an understanding of the contractual intentions of the parties according to what a reasonable person in the position of the parties would have understood the contract to mean in the circumstances in question: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, at [22]; Equuscorp Pty Ltd v Wilmoth Field Warne [2007] VSCA 280; (2007) VR 250, at [34]; Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165, at [40].
Although the cited words may have been construed in other decided cases, this has not been in connection with the policy the subject of these proceedings. The relevant question here is to determine the contractual intentions of the parties in this instance. In that regard, other cases, where those words or similar words have been considered, are not necessarily determinative of the contractual intentions of the parties in this instance, albeit that they may provide some guidance. It is therefore necessary to consider the meaning of the words in question.
The word "intentional" is unambiguous, and requires no further interpretation, other than to observe that it involves actions that are conscious or deliberate, and that do not include anything or any activity that was unintentional.
Similarly, the combined use of the words "self-inflicted" is also unambiguous, and requires no further interpretation, other than to observe that this combination of words refers to an action or to actions carried out by the person or persons concerned, so as to affect themselves.
In my view, the word "injury", in the sense of bodily injury as provided in the policy document, must, according to ordinary common usage, refer to a process of detriment or damage to the body in its otherwise undamaged state. In the context of its use in the policy, I do not consider that the term "injury" inherently refers to a non-damaging altered state of physiological functioning of the body. It must mean something more than just the concept of harm, which may arise without incurring damage.
The juxtapositional use of the words "intentional self-inflicted" is also unambiguous according to the above analysis, and should therefore be taken to mean something done deliberately by, or to, the person concerned.
In this case, the plaintiff has the onus of proving that the deceased sustained accidental bodily injury, according to the policy definition. That question is addressed in the consideration of Issue 5.
The plaintiff's onus of proving accidental bodily injury is conceptually different to the onus which is carried by the defendant to prove, also according to the policy exclusions, that the claimed accidental death of the deceased resulted from intentional self-inflicted injury.
In the latter context, I consider that the term "self-inflicted injury" must mean something more than just a temporary altered state of physiological functioning, such as the difference between being alert, or drowsy or even asleep, whether due to the temporary effects of medication taken in order to induce sleep, or due to alcohol ingestion that temporarily affects the functioning of the central nervous system.
In that context, I consider that a state of drowsiness or sleep induced by medication should not be taken as being an injury within the meaning of the policy, whether self-inflicted or otherwise, unless actual damage has occurred as a result of the deceased's act of taking such medication. No such damage has been demonstrated.
The evidence in this case indicates, on the balance of probabilities, all that would have occurred as a result of the deceased's ingestion of a non-fatal dose of Imovane would have been a temporary altered state of consciousness, changing from being alert to being asleep, or some state in between. In my view, without more, this does not involve an injury to the deceased.
In my view, a similar analysis applies to the deceased's ingestion of alcohol.
The basic effects of alcohol on ordinary physiological functioning are well understood according to common human experience, and do not require further expert explanation at that basic level. That much is evident from the enactment of a raft of statutory provisions in this State, including licensing provisions, that govern the sale and the use of alcohol in the community. If an analysis is required beyond that level, expert evidence is required to identify the specific behavioural consequences of alcohol ingestion, including by reference to dose or concentration.
Here, in this case there is evidence of the deceased's post-mortem blood alcohol concentration of 0.217g/100mL. Dr Huntsman explained that the common physiological effects of alcohol as a central nervous system depressant were incoordination, impairment of judgment, impaired cognition, mood lability, unsteady gait, and impairment of attention: Exhibit "A", pp 86 - 87.
In my view, it would be a tortuous use of language, to conclude that those effects, which should all be taken to refer to temporarily altered physiological functioning unless proven otherwise, should also be read as constituting an injury, even though such an altered state of physiological functioning, to whatever degree that pertained in the deceased's circumstances, was without doubt, self-inflicted. That said, in my view, it did not constitute an injury within the meaning of the policy.
Whilst it is well known and understood in the community that a blood alcohol concentration of 0.217g/100mL was well in excess of the legal limit for lawfully driving a motor vehicle, and that a person with that concentration of alcohol in the blood may be taken to be drunk or intoxicated, whether displaying outward signs of this or not, there is no evidence to suggest that such a level of alcohol resulted in the deceased sustaining an injury within the meaning of the policy, namely the occurrence of damage.
There was no admissible evidence to enable a reliably reasoned conclusion to the effect that the deceased had sustained a bodily injury, although it must be assumed, with one qualification, that any alteration to the deceased's state of physiological functioning, must be taken to have been intentionally caused, and therefore self-inflicted.
The qualification to that statement comes from the report of Dr Huntsman comprising Exhibit "A", p 87, as cited at paragraph [192] above. This concerns the effect of the deceased's blood alcohol level, and the related postulated loss of the ability of the deceased to recall events for longer than three minutes, thus raising the distinct possibility that, concomitant with that state of intoxication, an accidental dose, or an accidental series of doses, of Zopiclone may have been taken by the deceased, unintentionally, due to a loss of recall.
In that context, I do not read Dr Huntsman's evidence concerning loss of recall in such circumstances, to amount to the occurrence of an injury, but rather, a temporary impairment in functioning.
I consider Dr Huntsman's evidence to that effect, as summarised in paragraph [304] above, which was not challenged or contradicted, to be a credible analysis as one of the possibilities that reasonably arise for consideration in this case.
A central question then arises as to how one can determine, other than by way of unacceptable speculative guesswork, that it was more probable than not, the deceased intentionally overdosed on Zopiclone, as distinct from having taken an accidental overdose, or a series of accidental overdoses.
There is no evidence which enables a non-speculative resolution of the question of whether, whatever was the total number of Imovane tablets the deceased had ingested, all the tablets were taken at the same time, or whether the same tablets had been taken over a period of time, even if only spaced a number of minutes apart, for example, spaced three or so minutes apart, as could have been the case, as was identified by Dr Huntsman in his evidence as cited above. Also relevant to that possible scenario is the evidence in the form of the deceased's reported statement to her doctor that Zopiclone took some hours to "kick in" to cause her to go to sleep: Exhibit "A", p 334. That evidence must be taken to refer to a single dose.
Referring back to the 2003 event, Dr Huntsman said of the deceased's Imovane overdose, which at that time involved 10 - 15 tablets, that it was not a fatal dose: T72.30. He also said that a blood alcohol concentration of 0.178g/100mL was an indication of heavy intoxication: T71.39. It does not follow that in 2003, that was a fatal level of alcohol consumption.
On that cited evidence, the deceased's heavy intoxication with alcohol in August 2003, with a blood alcohol concentration of 0.178g/100mL, permits the inferred conclusion that at a blood alcohol concentration of 0.217g/100mL on 31 January 2009, that the deceased was even more heavily intoxicated than was the case in 2003. That said, in my view, this does not result in the claimed conclusion the deceased had a self-inflicted injury within the meaning of the policy, although the deceased had consumed alcohol intentionally.
If the parties had intended by their contract that a reference to injury in the policy document included alcohol intoxication, the policy document would have been expressly so stated. As it does not, I do not construe the policy to include the phenomenon of intentional alcohol intoxication to include injury.
In my view, the ingestion of alcohol, or medication, or both in combination, should not be construed as comprising an injury in the context of the policy, even though such ingestion was intentional.
In my view, on a common-sense analysis, an interpretation that construes the ingestion of alcohol as an injury was outside the mutual contemplation of the parties at the time they entered into the subject contract. I consider this to be so because the contended interpretation to that effect appears to lack business efficacy, as alcohol is a legally and widely used substance in the community, and was so even in 1992. If the defendant had intended to exclude the effects of the substance alcohol from the operation of the policy, I consider that it would have expressly stated an exclusionary term to that effect into the agreement that was entered into by the parties.
For the reasons outlined above, I do not accept the defendant's submission to the effect that an inference should be drawn that on 31 January 2009, by reason of the ingestion of Imovane, in combination with alcohol, the deceased had intentionally self-inflicted injury upon herself.

Issue 4 - Whether Zopiclone with alcohol contributed to drowning

The coroner found that drowning caused the deceased's death. The coroner also found that the antecedent cause of death was excessive alcohol and medication consumption. There is no dispute concerning these conclusions.
However, those findings do not govern the causation findings that are required to be made in these proceedings. This observation is relevant to the defendant's argument to the effect that the antecedent cause as found by the coroner, and the facts underlying that finding, represented another contributing cause resulting in the deceased's death.
Here, the relevant question for decision is whether the antecedent cause of excessive alcohol and medication consumption as identified by the coroner should be taken to engage the policy definition of "any other contributing cause, which results in … death".
The defendant argued that the deceased's intoxication was the real and effective, direct or proximate cause of her death, and therefore, this constituted an "other contributing cause" to the deceased's death so that the defendant avoids any liability to make a payment under the policy: Russell v Edwards [2006] NSWCA 19; (2006) NSWLR 376, at [35].
In my view, that argument does not assist the defendant in this case as the decision in Russell v Edwards turns on the interpretation and application of Pt 6 of the Civil Liability Act 2002, which does not apply to this case: Russell v Edwards, at [2].
The concept of a direct or proximate cause enables a single cause of an insured event to be identified: Russell v Edwards, at [35]. In that case, it was confirmed that the law of insurance requires the court to look to the proximate and not the remote cause of a loss in order to determine the liability of the insurer: Russell v Edwards, at [36], following Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited & Ors [2005] NSWCA 66, at [39].
In my assessment of the sequence of events, the proximate cause of the deceased's death was drowning. Put another way, if the deceased had not entered the water, she would not have drowned. In those circumstances, it is difficult to see how the defendant's argument that the deceased's intoxication was the real and effective cause of the deceased's death. In my view, if the factors of intoxication or Zopiclone ingestion had a causative role, that role was a remote one, and not a proximate cause.
The parties are in dispute as to who carries the onus of proof on the question of whether there was "any other contributing cause" of the deceased's death. The defendant asserts that it is for the plaintiff to prove that there was no such "other contributing cause", whereas the plaintiff claims that the "any other contributing cause" provision in the policy, whilst embedded the insuring clause, is not part of that insuring clause as it is in reality, an exclusion provision, albeit that it is not located in that part of the policy which contains other specified exclusions.
In my view, having regard to the phraseology of the definition of "Accidental Death" in the insuring clause, where the concept of accidental bodily injury resulting in death is the event to be insured against, and where the immediately following phrase after the punctuating comma is "without any other contributing cause", the proper construction of the policy is that the "any other contributing cause" provision operates as an exclusion from the liability of the insurer, if it becomes engaged by the facts. That is a matter to be proven by the defendant. Therefore, that is not a matter which the plaintiff must prove as a precondition to an entitlement for payment of the claim under the policy.
In my view, if the position were to be reversed, the contract would lack business efficacy. I construe the provision "without any other contributing cause" to be one which seeks to exclude any underlying or pre-existing conditions of health, unrelated to an accident, and which also contributes to the cause of death.
On that analysis, I consider that the defendant has not discharged its onus of demonstrating there was "any other contributing cause" to the death of the deceased. The antecedent cause finding by the coroner is of no assistance to the defendant in that regard due to the non-binding nature of that finding.
The evidence clearly leads to the conclusion that the ultimate cause of the deceased's death was by drowning, with the two other identified conditions being present, but expressed as a single combined entity of excessive alcohol and medication consumption, where the medication referred to was Zopiclone. That said, I consider that the inescapable conclusion is that the proximate cause of the deceased's death was drowning.
In my view, there is no evidence that would permit a reasoned conclusion that the deceased's consumption of either Zopiclone or alcohol, either each alone, or both in combination, would have caused her to die if she had not entered the water. It is plain on the evidence that if the deceased had not entered the water, she would not have drowned. Drowning was the effective, dominant or operative cause of the deceased's death: Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited & Ors [2005] NSWCA 66, at [5].
The remaining key question then becomes what caused the deceased to enter the water, or put another way, did the deceased's ingestion of Zopiclone and alcohol cause her to enter the water, and if so, was this a relevant contributing cause resulting in her death.
In addressing those questions, it is important to ensure that when arriving at findings on that question, such findings must necessarily proceed by way of inference, and any conclusions which emerge from that process must be appropriately reasoned, and not based on unsupportable speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
The defendant has not shown that it is more probable than not that the proximate cause of the deceased's death was due to "any other contributing cause", that is, other than drowning.
The deceased's actions in ingesting an overdose of Zopiclone in conjunction with alcohol sufficient to result in a post-mortem assay of blood alcohol concentration of 0.217g/100mL has not been shown to have resulted in the deceased drowning. Instead, I consider that the evidence more persuasively points to the drowning as an event that occurred quite independently of any antecedent action on the part of the deceased, such as was considered in Australian Casualty Co Ltd v Federico [1986] HCA 32; (1986) 160 CLR 513, at [14]. It was the effective, dominant or operative cause, as found at paragraph [327] above.
Having already determined that the deceased had not suicided or had not intentionally self-inflicted injury, and that there was no "other contributing cause" relevant to the deceased's death, this then leads to the question of whether or not the death of the deceased was accidental.

Issue 5 - Whether deceased's death was accidental

The plaintiff claims the deceased's death was accidental. Accidental death is defined in the policy as meaning death without any other contributing cause: Exhibit "1", p 2. The other causes argued by the defendant, namely suicide, intentional self-inflicted injury and "any other relevant contributing cause" have already been determined to be inapplicable: Issues 1 - 4 above.
On the key question of what caused the deceased to enter the water where she drowned, on the evidence, a number of possibilities emerge for consideration, as follows: 1. The deceased could have slipped on the raised paving lip when she was near the edge of the pool, and then entered the water accidentally; 2. The deceased could have experienced vertigo or dizziness whilst standing near the pool, and then entered the water and drowned accidentally; 3. The deceased could have been sitting by the edge of the pool cooling her legs in the water when she experienced vertigo or dizziness, and then fell into the water and drowned accidentally; 4. The deceased could have been sitting by the edge of the pool and fallen asleep due to the "kick in" effects of Zopiclone ingestion, and then fell into the pool and drowned accidentally.
Each of the possibilities identified in the preceding paragraph seem consistent with the deceased's slippers having been found near the pool, which was also consistent with the deceased's habit of cooling her legs in the pool to ameliorate the effect of her experience of hot flushes.
On analysis, possibility (1) above remains speculative, as there was no evidence of marks on the paving around the pool, or on the deceased's body, showing signs of the deceased having tripped or slipped. It would seem unusual for a trip or slip which resulted in the deceased entering the water to not leave some kind of abrasion or sign of injury on the part of her foot that slipped or tripped, or that some other mark from contact with the edge of the pool was not found on her body. I therefore consider that possibility (1) above should be discounted as being unsupported speculation.
I consider that possibilities (2) and (3) above arise for consideration because of the described history of the deceased occasionally experiencing vertigo, which it should be noted, was a possible side effect of overuse of Zopiclone: Exhibit "A", p 81. In that regard, the evidence disclosed that the deceased had experienced a fall due to fainting in the past.
Similarly, possibility (4) above is a distinctly open consideration because the deceased had obviously taken a significant quantity of Zopiclone before she drowned. The effect of Zopiclone was to induce a state of sleep. Given the position in which the deceased's slippers were found near a pool side setting, and given the deceased's habit of cooling her legs in the water, it is very likely that the effects of Zopiclone ingestion would have caused her to fall asleep whilst she was sitting at the edge of the pool with her legs in the water.
In my view, the latter explanation seems to be the most credible explanation for the deceased entering the water and then drowning. It would also tend to explain why she did not swim to safety before drowning. It is unlikely that she would have been able to swim if she was asleep.
Having narrowed the possibilities to those described in scenarios (2), (3) and (4) above, as distinct from an unknown cause, in the presence of two credible explanations, I consider that an unknown cause seems unlikely.
The end point of this analysis is that it is not necessary to definitively choose between those three scenarios in order to determine the precise sequence of events that led to the drowning. For present purposes, having excluded from further consideration the postulated factors of suicide and intentional self-inflicted injury, this leaves either the effects of vertigo or dizziness, or the sleep inducing effects of Zopiclone, as available and adequate explanations for the deceased entering the water and then drowning.
I consider that on the balance of probabilities, one of those two factors, or a combination of both of those factors, provides the most likely explanation for the deceased having drowned.
Either way, I consider that this indicates that the deceased's death was accidental within the meaning of the policy. I therefore conclude that the death of the deceased was accidental within the meaning of the insuring clause within the contract of insurance.

Issue 6 - Whether the policy exclusions apply

The policy exclusion of death by suicide has been the subject of consideration and findings at paragraphs [258] to [280] above. The policy exclusion of intentional self-inflicted injury has been the subject of consideration and findings at paragraphs [281] to [314] above. The policy exclusion of accidental death without any other contributing cause has been the subject of consideration and findings at paragraphs [315] to [332] above. The effect of those findings is that the defendant has not established the applicability of any of those exclusions to the circumstances of the deceased's death.
The remaining policy exclusion to be considered, for completeness, is that of being under the influence of drugs except when prescribed by a registered physician: Exhibit "A", p 3.
In the absence of any stated policy definition of the word "drugs", in the context of the policy, taking the plain ordinary meaning of that word, I consider that alcohol should not be understood to be synonymous with the word "drugs". I do not consider the objective contractual intention of the parties to have been that a reference in the policy to drugs should be taken to include alcohol. Accordingly, I consider that the deceased's use of alcohol, and her intoxication due to alcohol in the events leading to her death, does not engage any policy exclusion.
The remaining policy exclusion requiring consideration is the deceased having been under the influence of drugs except when prescribed by a registered physician.
In that consideration, the deceased's ingestion of the drug Ibuprofen has no relevance, as explained at paragraphs [11] and [33] above.
The only drug of relevance to this analysis is the prescription drug Zopiclone or Imovane, which was prescribed by the deceased's general practitioner. There is no dispute that at the time of her death, the deceased was under the influence of that drug.
In this context, I take the policy term "registered physician" to refer to a legally qualified medical practitioner who is registered and licensed to practise, and is able to lawfully prescribe restricted drugs for therapeutic purposes.
The defendant has not proven that the deceased obtained Zopiclone or Imovane without a therapeutic prescription from a legally qualified and registered medical practitioner.
The residual question concerning the policy exclusion under present consideration is whether the amount of Imovane taken by the deceased in the events leading to her death should be considered as not having been prescribed by her general practitioner, who had prescribed one Imovane tablet to be taken at night "prn". The question is whether the deceased's use of Imovane in excess of that prescribed dose defeats this claim. Nothing turns on the fact that the deceased took Imovane in the afternoon rather than at night.
The policy makes no reference to drug dosage in connection with prescribed drugs. In those circumstances, I consider that it would be unreasonable to conclude that the objective contractual intention of the parties was to include an implied term into the contract which gives the exclusion phrase "under the influence of drugs except when prescribed by a registered physician" an additional meaning to the effect that for the policy to apply, the dosage of the drug taken by the person covered by the policy must be restricted to the dosage prescribed.
When reading the policy as a whole, bearing in mind it was intended to provide insurance cover for accidental death, I consider that a conclusion contrary to that stated in the immediately preceding paragraph, would lack commercial or business efficacy. This is because it would have the unintended effect of excluding insurance cover for death due to accidental ingestion of an excessive dose of a prescribed drug. I find that is not a matter the parties had intended by their contract of insurance.
I therefore conclude that none of the policy exclusions claimed by the defendant have been engaged to the effect of defeating the plaintiff's claim.

Issue 7 - Date for calculating interest

As the plaintiff has succeeded in relation to the matters calling for decision regarding Issues 1 - 6, it becomes necessary to calculate the plaintiff's entitlement to interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cwth).
That section provides that where an insurer is liable to pay a person an amount under a contract of insurance, the date for the commencement of the calculation of interest is the day from which it was unreasonable for the insurer to have withheld the payment. The liability for interest continues until the date payment is made: s 57(2) of that Act. The rate of interest is to be calculated in accordance with reg 32 of the Insurance Contracts Regulation 1984 (Cwth).
In my view, the insurer's doubts about the plaintiff's entitlement to be paid pursuant to the policy reasonably remained for so long as the first coronial finding of suicide remained unaltered.
As the plaintiff's claim for payment was made on 18 February 2009, and the coronial finding of suicide continued to remain unchanged until 13 December 2012, on the state of the evidence, I consider that for a time, on that evidence, the insurer was justified in its decision to decline to pay the plaintiff the amount specified in the policy.
When, on 8 January 2013, after the second coronial finding which did not replicate or follow the earlier finding, the plaintiff requested the defendant to reconsider its decision to decline payment, thereafter, the defendant was entitled to a reasonable period of time in which to carry out some investigations and to reconsider the decision it had earlier maintained not to pay the plaintiff's claim.
On 25 March 2013, the insurer communicated its decision to maintain its stance of declining to pay the plaintiff's claim. Although the intervening period of 10 weeks seems long, it was not an inherently unreasonable time frame for the required reconsideration.
The defendant's reasons for maintaining its refusal to pay the plaintiff's claim are cited at paragraph [166] above. As I have already observed, those reasons are in part incomprehensible.
I consider that the defendant's decision to refuse payment of the claim was based on a view of the coronial evidence that was incorrect. Furthermore, it was not supported by the clinical records, or Dr Chamberlain's letter dated 30 August 2010, or Dr Huntsman's report dated 25 June 2012. More importantly, the defendant's position was not supported by any contemporaneous expert evidence that has been admitted into evidence in these proceedings. It appears that at the time the defendant rejected the plaintiff's claim, it did not have Dr Perl's report until it was later provided by the plaintiff's solicitor, on 28 January 2015.
Accordingly, I consider that the commencement date for calculation of interest on the plaintiff's claim pursuant to s 57 of the Insurance Contracts Act 1984 (Cwth) should be 25 March 2013.

Conclusion

For the above reasons, I find that it is more probable than not that the deceased's death was accidental within the meaning of the policy. I also find that the defendant has failed to discharge its onus of proving that the circumstances of the deceased's death came within the policy exclusions. The defendant is therefore liable to the plaintiff for liquidated damages in the agreed amount due under the policy, namely $200,000, plus interest as claimed.

Interest

On 18 May 2016, for the purposes of identifying the applicable amount of interest, the parties were advised to assume for the purposes of s 57 of the Insurance Contracts Act 1984 (Cwth) that the relevant date for the commencement of an interest calculation was 25 March 2013. On 19 May 2016, the parties indicated their agreement that the applicable interest on the policy sum of $200,000, for the period 25 March 2013 to 27 May 2016, amounted to $39,627.25.

Disposition

The plaintiff is entitled to a judgment against the defendant in the claimed sum of $200,000 plus interest assessed at $39,627.25, totalling $239,627.25.

Costs

As the plaintiff has succeeded in his claim, he is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other order for costs.

Orders

I make the following orders: 1. Verdict for the plaintiff in the sum $200,000; 2. Interest is assessed in the sum of $39,627.25; 3. Judgment for the plaintiff in the sum of $239,627.25; 4. The exhibits may be returned; 5. Liberty to apply for further or other orders within 7 days of today's date. Appendix Analysis of selected prescriptions Item Prescribing date Page ref. in Exhibit "A" Selected prescribed drug Calculated end date of prescription assuming dispensed on prescribing date and 30 tablets per packet Days not covered by Imovane script before next recorded prescribing date including dosage

                                                                             14.06.2000        73                        Imovane 7.5mg x 1 nocte prn   14.07.2000                                                                                            201 days to 31.01.01

                                                                             31.01.2001        73                        Imovane 7.5mg x 1 nocte prn   02.03.2001                                                                                            12 days to 14.03.01

                                                                             14.03.2001        72                        Imovane 7.5mg x 1 nocte prn   13.04.2001                                                                                            11 days to 24.04.01

                                                                             24.04.2001        71                        Imovane 7.5mg x 1 nocte prn   24.05.2001                                                                                            63 days to 27.07.01

                                                                             27.07.2001        71                        Imovane 7.5mg x 1 nocte prn   22.08.2001                                                                                            6 days to 28.08.01

                                                                             28.08.2001        71                        Imovane 7.5mg x 1 nocte prn   27.09.2001                                                                                            33 days to 24.10.01

                                                                             24.10.2001        70/71                     Imovane 7.5mg x 1 nocte prn   23.11.2001                                                                                            10 days to 03.12.01

                                                                             03.12.2001        70                        Imovane 7.5mg x 1 nocte prn   02.01.2002                                                                                            13 days to 15.01.02

                                                                             15.01.2002        70                        Imovane 7.5mg x 1 nocte prn   14.02.2002                                                                                            7 days to 21.02.02

                                                                            21.02.2002        69                        Imovane 7.5mg x 1 nocte prn   23.03.2002                                                                                            4 days to 27.03.02

                                                                            27.03.2002        69                        Imovane 7.5mg x 1 nocte prn   26.04.2002                                                                                            21 days to 17.05.02

                                                                            17.05.2002        68                        Imovane 7.5mg x 1 nocte prn   16.06.2002                                                                                            1 day to 17.06.02

                                                                            17.06.2002        67                        Imovane 7.5mg x 1 nocte prn   17.07.2002                                                                                            51 days to 06.09.02

                                                                            06.09.2002        67                        Imovane 7.5mg x 1 nocte prn   06.10.2002                                                                                            53 days to 28.11.02

                                                                            08.10.2002        66                        Imovane was not prescribed    -                                                                                                     -

                                                                            28.11.2002        66                        Imovane 7.5mg x 1 nocte prn   28.12.2002                                                                                            38 days to 04.02.03

                                                                            04.02.2003        65                        Imovane 7.5mg x 1 nocte prn   06.03.2003                                                                                            18 days to 24.03.03

                                                                            24.03.2003        65                        Imovane 7.5mg x 1 nocte prn   23.04.2003                                                                                            13 days to 06.05.03

                                                                            06.05.2003        65                        Imovane 7.5mg x 1 nocte prn   05.06.2003                                                                                            26 days to 01.07.03

                                                                            01.07.2003        64                        Imovane 7.5mg x 1 nocte prn   01.08.2003                                                                                            10 days to 11.08.03

                                                                            11.08.2003        64                        Imovane 7.5mg x 1 nocte prn   10.09.2003                                                                                            1 day to 11.09.03

22 August 2003 - Hospital admission for Imovane overdose with ingestion of alcohol 22. 11.09.2003 23. 27.10.2003 24. 12.12.2003 25. 30.01.2004 26. 15.03.2004 27. 27.04.2004 28. 27.04.2004 29. 27.04.2004 30. 27.07.2004 31. 30.09.2004 32. 05.11.2004 33. 17.12.2004 34. 25.01.2005 35. 29.03.2005 36. 01.08.2005 37. 19.09.2005 38. 24.10.2005 39. 17.01.2006 40. 17.01.2006 41. 29.03.2006 42. 30.06.2006 43. 11.01.2007 44. 05.04.2007 45. 10.07.2007 46. 18.09.2007 47. 09.10.2007 48. 11.03.2008 49. 13.06.2008 50. 15.07.2008 51. 07.10.2008 52. 22.01.2009 53. 31.01.2009 64 Imovane 7.5mg x 1 nocte prn 11.10.2003 16 days to 27.10.03 63 Imovane 7.5mg x 1 nocte prn 26.11.2003 16 days to 12.12.03 63 Imovane 7.5mg x 1 nocte prn 11.01.2004 19 days to 30.01.04 63 Imovane 7.5mg x 1 nocte prn 29.02.2004 15 days to 15.03.04 62 Imovane 7.5mg x 1 nocte prn 14.04.2004 13 days to 27.04.04 62 Imovane 7.5mg x 1 nocte prn 27.05.2004 0 days to 27.05.04 62 Imovane 7.5mg x 1 nocte prn 26.06.2004 0 days to 26.06.04 62 Imovane 7.5mg x 1 nocte prn 26.07.2004 0 days to 27.07.04 61 Imovane 7.5mg x 1 nocte prn 26.08.2004 35 days to 30.09.04 61 Imovane 7.5mg x 1 nocte prn 30.09.2004 36 days to 05.11.04 61 Imovane 7.5mg x 1 nocte prn 05.12.2004 12 days to 17.12.04 61 Imovane 7.5mg x 1 nocte prn 16.01.2005 9 days to 25.01.05 60 Imovane 7.5mg x 1 nocte prn 24.02.2005 33 days to 29.03.05 60 Imovane 7.5mg x 1 nocte prn 28.04.2005 95 days to 01.08.05 59 Imovane 7.5mg x 1 nocte prn 01.09.2005 (Not relevant) 59 Serepax 30mg x 1/2 nocte* 18.11.2005 (Not Imovane) 58 Serepax 30mg x 1/2 nocte* 23.12.2005 (Not Imovane) 58 Serepax 30mg x 1/2 nocte* 19.03.2005 (Not Imovane) 58 Avanza sample to try - query (Not known) (Not Imovane) 57 Serepax (30mg x 1/2 nocte)* 28.05.2006 (Not Imovane) 56 Imovane 7.5mg x 1 nocte prn 30.07.2006 165 days to 11.01.07 55 Imovane 7.5mg x 1 nocte prn 10.02.2007 54 days to 05.04.07 55 Imovane 7.5mg x 1 nocte prn 05.05.2007 127 days to 10.07.07 55 Imovane 7.5mg x 1 nocte prn 09.08.2007 31 days to 09.10.07 54 Endep 25mg daily (Not known) (Not Imovane) 54 Imovane 7.5mg x 1 nocte prn 08.11.2007 123 days to 11.03.08 54 Imovane 7.5mg x 1 nocte prn 10.04.2008 64 days to 13.06.08 53 Imovane 7.5mg x 1 nocte prn 13.07.2008 87 days to 07.10.08 53 Tramal 50mg 1 - 2 tds prn (Not known) (Not Imovane) 52 Imovane 7.5mg x 1 nocte prn 06.11.2008 86 days to 31.01.09 52 Imovane 7.5mg x 1 nocte prn 21.02.2009 No further date - Death of deceased - 25 Imovane tablets found remaining in packet

Assumption : 30 Serepax tablets per prescription

Amendments 27 May 2016 - Amendment: Paragraph [10]: typographical error corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2016

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Judgment (35 paragraphs)

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