Section 17 of the DRCA (Compensation for injuries resulting in death) sets out the circumstances in which the Commonwealth is liable to pay compensation for ‘an injury to an employee [that] results in death’.
When considering whether the Commonwealth is liable to pay compensation under s 17(1) in relation to a veteran’s suicide, it will be necessary to determine whether the injury that resulted in the veteran’s death is excluded under s 14(2) of the DRCA.
Subsection 14(2) of the DRCA says:
Compensation is not payable in respect of an injury that is intentionally self‑inflicted
Note that, unlike the MRCA, the DRCA contains no waiver of this exclusion if the intentionally self-inflicted injury results in death or serious and permanent impairment.
However, this does not mean that an injury that resulted in a veteran’s death by suicide or attempted suicide should always be excluded under s 14(2). In some circumstances an injury resulting in death may not have been ‘self-inflicted’ for the purposes of s 14(2), and in others, the individual may have lost volition such that the injury cannot be taken to have been ‘intentionally’ self-inflicted for the purposes of s 14(2).
Overview
In order for subsection 14(2) to apply, three requirements must be met:
- The condition in question must meet the definition of an ‘injury’.
- The injury must be self-inflicted.
- The infliction of the injury must be intentional.
If any of these requirements are not met, the exclusion set out in s 14(2) does not apply to the claim.
1. Injury
In order for the Commonwealth to be liable to pay compensation under s 17(1) in respect of a veteran’s suicide, the death must have resulted from an ‘injury’ as defined in s 5A of the DRCA. This includes “a physical or mental injury arising out of, or in the course of,” a veteran’s service, except where it arose “as a result of reasonable administrative action taken in a reasonable manner”.
When considering whether an injury was present, it is important to take into account all injuries of this kind which were present at the time of death by suicide and which may have contributed to the death by suicide.
If the injury has not been accepted under the DRCA prior to the death, a service related injury contributing to the death may potentially be established via the posthumous mental health diagnosis policy, see CM6267 Guideline for Operation of Posthumous Psychiatric Diagnosis Panel | Compensation and Support Reference Library, Commission Guidelines (dva.gov.au).
If a veteran’s death did not result from an ‘injury’ as defined in s 5A of the DRCA then s 14(2) will not apply to the claim. However, the veteran will also not be entitled to compensation under s 17 of the DRCA due to the absence of an ‘injury’.
However, if the death did result from an ‘injury’ as defined in 5A, the next step is to consider whether all contributing injuries were self-inflicted.
2. Self-inflicted
When considering whether a contributing injury was self-inflicted, it is important to remember that the injury in question is the service-related injury or injuries identified in step 1. Even though other injuries may be present which contributed to the death by suicide, only those which meet the definition under 5A are considered in relation to s 14(2).
It is important to remember that while a death by suicide clearly involves a self-inflicted injury, it is possible that a veteran:
- suffered a previous injury that was accepted (or can be posthumously accepted) as service-related under the DRCA, and
- this injury was not self-inflicted, and
- this injury resulted in the veteran taking their own life.
Ultimately, it is possible that an injury can have resulted in a veteran’s death even in the presence of another fatal self-inflicted injury, so long as there is a sufficient connection between this previous injury and the veteran’s death.
For example, a veteran could have incurred a significant depressive disorder injury that arose from, or in the course of their service. This depressive disorder injury was not self-inflicted and is not excluded under s 14(2) of the DRCA. If this injury materially or significantly contributed to the death of the veteran then both the self-inflicted injury that directly ended the veteran’s life and the depressive disorder injury could be taken to have resulted in the veteran’s death. While the self-inflicted injury may be excluded under s 14(2), the depressive disorder injury is not excluded and, should the depressive disorder have contributed to the death then the Commonwealth may then be liable to pay compensation under s 17 of the DRCA in respect of a death arising from this depressive injury.
This was, essentially, the factual circumstance in the Administrative Appeals Tribunal (Tribunal) matter of Sadlo and Comcare [2005] AATA 1006 (Sadlo). In Sadlo, the Tribunal found that a work related depressive disorder injury caused the employee’s death, for the purposes of s 17 of the DRCA, notwithstanding that the employee had committed suicide.
A common-sense approach should be taken to considering the causal chain and the question of whether a particular injury resulted in a veteran’s death. Delegates should be aware that the presence of intervening links in the chain or other contributory causes of death does not necessarily preclude a finding that a previous service-related injury contributed to and resulted in the veteran’s death.
Taking into account all of the above, if the injury (or one of the injuries) contributing to the death was not self-inflicted then it is not excluded under s 14(2). If it was self-inflicted, it needs to then be considered whether this was intentional.
3. Intentional
Whether the injury was intentionally self-inflicted only becomes a consideration in relation to s 14(2) if it has already been established that:
- an ‘injury’ is present which meets the definition in s 5A
- the injury is self-inflicted.
If either of those facts have not been established, s 14(2) already does not apply and the question of intentionality is irrelevant.
An injury may not be intentionally self-inflicted where there is a demonstrated loss of volition such that the veteran was unable to understand or appreciate the consequences of their actions.
In some circumstances an injury inflicted by the veteran's own hands may be deemed not to be intentional, by virtue of them having – due to a compensable mental disease – lost the power of volition (intention) i.e. the power to make a decision or exercise their will in relation to living or dying. In such a case, the injury would not be excluded under s 14(2) and the Commonwealth may be liable to pay compensation for the death or injuries arising from suicide or attempted suicide
It is not the case that the fact of a suicide attempt or suicide demonstrates, of itself, a loss of power of volition. This circular argument cannot be admitted, even when presented by a medical practitioner.
In Re Pamela McLaren and Comcare [1992] AATA 202, the AAT found that the question was 'has the workman's mind become so unhinged as to dethrone his power of volition' (citing Church v Dugdale & Adams Ltd (1929) 22 BWCC 444). On the facts of this case, the Tribunal found that ‘the work related stress and major depressive illness [was such that] 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' (at [17]).
The state of the veteran's mind is a question of fact. Such factual findings can be made with reference to expert opinion, such as by a psychiatrist. An expert opinion about the veteran’s state of mind including, specifically, an ability to form an intention, should (where possible) be based on a psychiatric examination conducted shortly before the death by suicide or suicide attempt to give the delegate an indication of the veteran's prior mental health. Where this is not available, there should be other evidence that can be assessed by an expert.
Provided all other steps have indicated the injuries or disease(s) resulting in death was an injury and self-inflicted and intentional, in the absence of an informed expert opinion about the veteran's state of mind and loss of volition, the delegate should find that the suicide or attempted suicide was the result of an intentional, self-inflicted injury that is excluded under s 14(2).