In the recent decision of Sarkis v Summit Broadway Pty Ltd(1) , the New South Wales Court of Appeal was asked to consider whether the negligent driver of a motor vehicle and the CTP insurer could be held liable in damages for the subsequent suicide of a passenger who had suffered an injury in the subject accident.
The subject motor vehicle accident occurred on 5 June 2001. The deceased, Sidney Beer, was a passenger in a motor vehicle which was struck from behind by a motor vehicle driven by the appellant. As a result of that motor vehicle accident, Mr Beer suffered a whiplash injury to his neck. As he was working at the time of the subject accident, he claimed worker's compensation benefits and was paid medical and rehabilitation expenses in connection with the whiplash injury. Some six months later, Mr Beer committed suicide.
After Mr Beer's death, his de facto partner and infant daughter bought proceedings against Mr Beer's employer claiming dependency. This claim settled in 2003 on the basis that both the de facto partner and daughter would be paid compensation of $75,000 each. The employer then sued the negligent driver of the other vehicle pursuant to Section 151Z of the Worker's Compensation Act 1987 in order to recover compensation paid to the deceased's dependants. At first instance the Court found in favour of the employer, however the appeal was allowed with the Court finding in favour of the appellant driver.
In summary, the Court of Appeal found that events after the motor vehicle accident had broken the chain of causation. Accordingly, the motor vehicle accident could not be considered the cause of the Mr Beer's suicide. In particular, the Court heard that there had been several extraneous events which 'overwhelmed' Mr Beers in the few days before his committing suicide, including:
On 3 September 2001 the Claimant had suffered a fall in which he suffered a comminuted and angulated fracture to two bones within his right hand and reflex sympathetic dystrophy;
Mr Beers was engaged to organise an event at the Opera House on New Years Eve however this event was cancelled and he took the cancellation badly;
Mr Beers was having difficulties obtaining access to his daughter;
Mr Beers had saved a sum of money in order to purchase Christmas presents for his daughter, however the money was stolen; and
Mr Beer's relationship with his de facto partner was becoming increasingly strained in the days prior to him committing suicide.
Further, the Court could find no evidence to suggest that the worker was suffering depression as a result of the subject motor vehicle accident. By contrast, after the motor vehicle accident the worker seemed to be in a positive frame of mind and he had an optimistic outlook with respect to returning to work.
In his judgement, Hendley JA stated that the "Court cannot find as a matter of commonsense that the motor vehicle accident was a cause of his suicide. If he was suffering from clinical depression when he committed suicide it was because the events of the last few days had overwhelmed him. As a matter of commonsense they were the cause and there are no considerations of logic or policy which require the Court to reach a difference conclusion".
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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