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Suicides form a sub-set of those injuries which are intentionally self-inflicted.
Subsection 14(2) says:
14(2) Compensation is not payable in respect of an injury that is intentionally self inflicted
Note that there is no waiver of this exclusion if the intentionally self inflicted injury results in death or serious permanent impairment. However in some circumstances a death inflicted by the deceased's own hand may be deemed not to be intentional, by virtue of that person having – due to a compensable mental disease – lost the power of volition (intention) i.e. the power to make a decision or exercise his/her will in relation to living or dying. Only in those cases would there still be a liability to pay compensation for the death.
It is not the case, that the fact of suicide demonstrates, of itself, a loss of power of volition. This circular argument can not be admitted, even when presented by a medical practitioner (especially one who did not conduct an actual psychiatric examination of the living person).
Two relevant cases indicate the extent of a person's mental state so that they have lost the power of volition:
- 'the workman's mind [became] so unhinged as to dethrone his power of volition' (Church v Dugdale & Adams Ltd 1929), and
- 'he was no longer able to choose whether he would or would not continue to live or whether he could or could not restrain the temptation to suicide' (re: McLaren and Comcare 1992),
The likely state of the client's mind is in fact a matter for medical opinion by a qualified specialist psychiatrist. Furthermore a valid medical opinion about such a contingent matter as a person's state of mind including, specifically, an ability to form an intention, would require that opinion to be based on a psychiatric examination conducted shortly before the death or suitable medical evidence prior to death that can be assessed by a psychiatrist to give the delegate an indication of the person's mental health prior to suicide.
Thus for a death by suicide, compensation would only be payable if:
- medical evidence from a person with psychiatric expertise demonstrated that the person suffered from a mental disease to which ADF employment had contributed 'to a material degree'
- medical evidence from a specialist psychiatrist's examination of that person shortly before the suicide (or of sound medical evidence), demonstrated that the person had lost the ability to form an intention, or the ability to choose not to commit suicide. Also that this state of mind was due to the compensable condition.
In the absence of such an informed professional psychiatric opinion about the client's state of mind, the delegate should carry out the obvious intent of the Act and deny liability for suicide as an intentionally inflicted (and fatal) injury.