New South Wales Court of Appeal CITATION : American Home Assurance Company v King (as Executrix of the Estate of the Late Frederick King) [2001] NSWCA 201 FILE NUMBER(S) : CA 40052/00 HEARING DATE(S) : 7 June 2001 JUDGMENT DATE : 29 June 2001 PARTIES : American Home Assurance Company v Beryl Rose Grace King (as Executrix of the Estate of the Late Frederick King) JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Stein JA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT DC 524/97 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : COUNSEL : Appellant - J V Gooley Respondent - D H Murr SC/P R Cummings SOLICITORS : Appellant - Sparke Helmore Respondent - Harris Wheeler, Newcastle CATCHWORDS : CIVIL LAW - suicide - standard of proof - whether balance of probabilities or some greater degree of satisfaction - Briginshaw test - PROCEDURE - whether presumption against suicide still operates - proper inference on the evidence - ND LEGISLATION CITED : Crimes Act 1900 Mental Health Act 1990 Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Clark v NZI Life Ltd (1991) 2 Qd R 11 Rejfek v McElroy (1965) 112 CLR 517 Spiratos v Australasian United Steam Navigation Co Ltd (1955) 93 CLR 317 DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40052/00 DC 524/97 HANDLEY JA BEAZLEY JA STEIN JA Friday, 29 June 2001 AMERICAN HOME ASSURANCE COMPANY v Beryl Rose Grace KING (as Executrix of the Estate of the Late Frederick KING) In 1986 Mr Frederick King took out an accident protection insurance policy with the appellant, with a principal sum of $60, 000. The policy contained an exclusion whereby it would not apply to any event which resulted from a 'deliberately self inflicted injury'. Mr King died on 27 December, 1994 as a result of a fall from a balcony whilst a voluntary patient at a psychiatric hospital in Newcastle. The deceased had suffered a nervous breakdown in March 1993, which had been exacerbated in November 1994 as a result of a minor car accident. He was diagnosed upon admission at the clinic on 23 December, 1994 as significantly depressed. His discussion with the admitting doctor indicated that although he had had thoughts of suicide, he had strong moral objections to such an action. He strongly assured the doctor that he would not contemplate suicide during the Christmas period. The doctor did not schedule Mr King as he did not consider him a suicide risk at that time. Mr King settled in well and attended his son's home for Christmas lunch. Mr King, in addition to taking anti-depressants, was on medication for blood pressure and hypertension, both of which could cause dizzy spells or black outs. A number of hypotheses were presented at trial with respect to the reason for Mr King's fall from the balcony and resulting death, supported by expert medical and engineering evidence. The appellant sought and was granted leave to appeal from the decision of Goldring DCJ. Held: Per Handley, Beazley and Stein JJA: 1) There are a number of hypotheses, inconsistent with suicide, which could have caused Mr King to fall from the balcony. 2) The medical evidence that Mr King was at risk of suicide is not compelling when the evidence about his behaviour on 25 and 26 December is taken into account. 3) The appellant has not satisfied the onus of proof upon it in order to be able to rely upon the policy exclusion. Goldring DCJ was in error in holding that the burden of proof borne by the insurer was to exclude any reasonable hypothesis consistent with the deceased not intending to inflict injury upon himself. The language of presumption against suicide has been largely supplanted by the language of the proper inference to draw on the whole of the evidence. The appropriate standard of proof is that applied in Clark v NZI Life Ltd (1991) 2 Qd R 11. Orders: Appeal dismissed with costs. OoO IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40052/00 DC 524/97 HANDLEY JA BEAZLEY JA STEIN JA Friday, 29 June 2001 AMERICAN HOME ASSURANCE COMPANY v Beryl Rose Grace KING (as Executrix of the Estate of the Late Frederick KING) JUDGMENT 1 HANDLEY JA: I agree with Stein JA. 2 BEAZLEY JA: I agree with Stein JA. 3 STEIN JA: Introduction 4 On 9 December 1999 Goldring DCJ gave judgment in favour of the plaintiff Beryl King, as Executrix of the estate of her late husband, Frederick King, against the appellant, the American Home Assurance Company, in the sum of $83,266.95. The appellant was granted leave to appeal on condition that it pay the costs of the respondent in any event. 5 Mr King died on 27 December 1994 as a result of a fall from the first floor balcony of the Shortland Clinic where he was a voluntary patient. 6 In 1986 Mr King had taken out a policy of insurance with the appellant, described as an accident protection plan, with a principal sum of $60,000. The policy contained certain exclusions. Relevantly the policy should 'not apply to any event which: … results from a deliberately self inflicted injury'. 7 The widow of Mr King made a claim under the policy which the appellant refused, relying upon the exclusion. This led to the respondent's claim in the District Court. The judgment below 8 In deciding in favour of the respondent, his Honour said that suicide was still a crime in New South Wales and that this provided a reason to distinguish the authority of Clark v NZI Life Ltd (1991) 2 Qd R 11. However, s 31A of the Crimes Act 1900 abrogated the rule of law that it is a crime for a person to commit, or attempt, suicide. So much is conceded by the respondent in her Notice of Contention. 9 The respondent also concedes that his Honour was in error in holding that the burden of proof borne by the insurer, to bring itself within the policy exception, was to exclude any reasonable hypothesis which was consistent with the deceased not intending to inflict injury on himself. 10 In Clark, an analogous situation, Thomas J said that the standard of satisfaction required for proof of the issue (of suicide) was upon the balance of probabilities, citing Rejfek v McElroy (1965) 112 CLR 517 and two Canadian authorities. However, the essential question was whether it was upon a mere balance of probabilities or whether some greater degree of satisfaction should be required along the lines recognised in Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362. 11 Thomas J said: Applying Dixon J's words above in the context of the present civil litigation I can say that the particular finding is not one to be made lightly, but neither is it one of such inherent unlikelihood or gravity as to bring it toward the top of the range of what is sometimes called the Briginshaw test. I do not think it profitable to try to be more precise about the necessary level of satisfaction. [at 16] 12 Reference was made by Thomas J to earlier decisions concerning the 'presumption' against suicide. He held that there was no longer any such presumption, suicide no longer being a crime. Thomas J did not refer to the discussion of the High Court about the presumption in Spiratos v Australasian United Steam Navigation Co Ltd (1955) 93 CLR 317 at 320. Whether Thomas J was correct that there is no longer any general presumption matters not in this case, because, as his Honour observed, the language of presumption (and counter presumption) has largely been supplanted by the language of the proper inference to draw on the whole of the evidence. 13 It is the submission made on behalf of the respondent that, notwithstanding the identified errors in the District Court, she was entitled on the facts to succeed in the proceedings. On the other hand, the appellant submits that it discharged the onus of proving that death resulted from a deliberately self inflicted injury on the appropriate standard of proof described in Clark. 14 It is necessary, therefore, to pay attention to the evidence before the District Court, which it is accepted, involved no issue of the credit of any witness. The facts 15 The deceased was born on 27 May 1936. According to his wife he suffered a nervous breakdown in March 1993. As a result, he was treated by Dr Frank Spruce until October of that year. Mrs King says that in late 1993 her husband suffered a minor stroke which resulted in short term memory loss and slurred speech. On 4 November 1994 the deceased was involved in a minor car accident when his nine year old grandson was in the vehicle. This trauma led him to become very stressed which, in turn, affected his blood pressure. On 10 December 1994 Mr King visited Dr Baola for an ECG and blood tests. He was put on medication for his blood pressure. 16 On 12 December 1994 the deceased presented himself at the Shortland Clinic in Newcastle. This is a 22 bed psychiatric hospital but not gazetted under the Mental Health Act 1990. All of its patients are voluntary. Upon admission Dr Whiteley reviewed Mr King. In this interview Mr King told the doctor that he had thoughts of suicide but discounted them because he said that his life was not his own to take. He also indicated that he had resumed smoking cigarettes one month earlier. 17 No beds were then available in the clinic. Dr Whiteley recommended an anti-depressant and for Mr King to see him the following day. This occurred and, it seems, he was a little better, not as agitated and with a more positive outlook. Dr Spruce was contacted and an appointment was made for Mr King to see him on 5 January 1995. 18 However, on 23 December 1994 Mr King decided to admit himself to the Shortland Clinic over the Christmas break. According to his wife, he said that he felt safe at the clinic. He presented feeling very depressed. Mr King was seen by Dr Johnson and admitted. Dr Johnson noted that Mr King was depressed and had described thoughts of drowning himself. 19 Apparently Mr King settled in well at the hospital and was seen by Dr Johnson on the morning of 24 December. Dr Johnson diagnosed Mr King as significantly depressed with psychotic elements. Dr Johnson's notes of the interview state: He talked about options and it emerged that one option he has recently had on his mind is suicide. He has moral dilemmas about this and said "if I could do that as an anonymous person I would - but I am not". We discussed risk of suicide and he strongly assured me that he would not contemplate suicide at Christmas. He has agreed to stay in contact with staff. Suicide is an issue that should be kept in mind … there should be careful evaluation of any wish on his part to leave the Unit. 20 Dr Johnson prescribed a tranquilliser pericyazine in addition to continuing the anti-depressant (desipramine). According to the nursing staff notes, Mr King was feeling better that afternoon (24 December) and was visited by his son. 21 On Christmas Day he was noted as 'beginning to settle' and was visited by Mrs King. At 12.15 pm he decided to return home for Christmas lunch. In fact he had lunch at his son's home and Mrs King reported that her husband 'really enjoyed the day and was cheerful and ate well'. He returned to the clinic at 7.30 pm. 22 On 26 December 1994 (Boxing Day) friends visited the deceased in the morning and Mrs King visited after lunch. Her statement tendered in evidence says that she noticed that he was 'very slow and off balance and disorientated'. She stayed until tea time when their son, Michael, visited with his family. Mrs King said 'there were no alarm bells in my head' and nothing in his behaviour to indicate that there was anything wrong. That was the last time she saw her husband alive. A hospital note made that evening mentions Mr King complaining about difficulty in passing urine. He was encouraged to increase his fluid intake. Dr Johnson saw Mr King briefly during the day when Mr King told him he was feeling more settled and that the medication seemed to have reduced his anxiety. 23 Nurse Jarvis saw Mr King in the hospital corridor at 11.45 pm. Sister Nelson introduced Nurse Jarvis to Mr King. Mr King smiled at both of them and appeared to be relaxed. Sister Nelson had a brief conversation with Mr King and said that 'he seemed relaxed, bright and didn't seem to be depressed. His response seemed to be appropriate'. At 12.30 am (on 27 December 1994) she was with Nurse Jarvis when he opened the door of Mr King's room. Mr King was seen to be asleep in his bed. 24 At 4.15 am Nurse Jarvis observed that Mr King was not in his bed and a search was made of the upstairs toilets and bathrooms. The downstairs was then checked and the body of Mr King was found lying at the bottom of the steps beneath the first floor verandah. Both nurses (Jarvis and Nelson) saw a pair of spectacles on the steps near the body. The photographic evidence supports this observation. 25 There are five steps at the entrance to the two storeyed clinic building and it appears that Mr King fell a distance of about 4.3m from the balcony above, striking his head on the second step from the bottom. It was this injury that was the cause of death. In addition to the spectacles found close to his body on the steps, a cigarette lighter was located close to his right hand. 26 Besides the massive head injury, Mr King had abrasions to his right shoulder, left shin and heel, left foot and ankle, right ankle and foot. There were traces of oxidised paint on Mr King's hands and shirt that matched the paint on the external wall of the building. What caused the fall? 27 What caused Mr King to fall to his death? Was it suicide? There is, of course, no direct evidence. Besides the medical evidence, there were three expert reports from engineers before the Court. One of the authors, Mr Michael Griffiths, gave evidence. 28 From the reports it is possible to have an understanding of the area where the accident occurred. Mr King must have left his bedroom sometime after 12.30 am on 27 December 1994 and entered the verandah on the first floor. None of the doors in the clinic were locked since it is a voluntary and not secure hospital. The verandah has a masonry balustrade 230mm wide and 955mm above the verandah floor. There is a distance of 1.215m from the top of the balustrade to the masonry above. 29 Mr Griffiths knew that the deceased's height was 1.8m, that he was of average build and weighed 80kg. In his view, the height of the balustrade would be approximately 50mm above Mr King's centre of gravity. Mr Griffiths' opinion was that Mr King would not have been able to overbalance while facing outwards at the balustrade if he accidentally walked into the balustrade at moderate speed, or leant on it in a normal resting position. The deceased would have had to undertake a manoeuvre which was enough to cause sufficient of his body mass to move outside the balustrade to pull the rest of him over. 30 The conclusion reached by Mr Griffiths was that Mr King most likely fell from the balcony by 'rotating outward from a standing position adjacent to and facing the balustrade'. He said that Mr King could not have overbalanced by accidentally walking into the balustrade, nor by normal leaning behaviour. Some deliberate action to raise his body and manoeuvre it outward from the balustrade was necessary. 31 In a later report, Mr Griffiths stated that the paint marks and abrasions to Mr King's body were likely to have occurred as he slid past the outer wall of the building. This meant that he was not launched outwards by a fast approach to the balustrade but rather that 'he must have edged over the balustrade gradually to beyond the balance point'. 32 The report of another engineer, Mr Barker of Barker Herle, was tendered although he was not required to attend for cross-examination. His report says that there were six different ways in which a person could fall from the balustrade to the ground below. Four of these were not consistent with the paint on the hands and shirt and the position of abrasions to Mr King's feet and shins. This left the possibility that Mr King was standing facing the balustrade and leant outwards from waist level until he overbalanced. He opined that this was the most likely mechanism. 33 A further expert report of a Mr Tom Gibson was admitted into evidence over objection. The contents of it had been used to cross-examine Mr Griffiths. Mr Gibson chose seven scenarios whereby a person of the deceased's height, weight and presumed height of hip joint, could have overbalanced. Some of these are bizarre but it seems that the intention of the author of the report was to attempt to demonstrate that a person could fall accidentally over the balustrade. 34 In his oral evidence Mr Griffiths stressed that Mr King would have to raise his centre of gravity to be able to go over the top of the balustrade. He accepted that the centre of gravity which he had chosen was not necessarily Mr King's actual centre of gravity, rather the average for a man of his height and build. He consulted anthropometry tables. Mr Griffiths accepted that it would only be necessary for Mr King to elevate himself a couple of inches, such as standing on his toes, to be able to overbalance. 35 Mr Griffiths accepted that his assessment could be 'a bit out' and that he could not make an accurate assessment. This was because a number of variables were involved, including the height of Mr King's hips, which had been assumed. His model was, he said, a very simple one. The essence of his position was that Mr King would have had to generate some energy to raise himself sufficiently to clear the top of the balustrade. At a later point in his evidence, Mr Griffiths referred to the need to expend 'a little bit of energy' to raise oneself to get over the balustrade. Since as little as two inches might be sufficient, he agreed that standing on tip toes might suffice. 36 A number of possible situations were put to the witness. One was whether, that if a person's glasses fell off and he lurched to grab them, would that movement be sufficient to elevate him. He answered in the affirmative saying that 'if someone made the deliberate action to lift up over and look and see where the glasses had gone, then … they would have expended that energy to lift themselves'. 37 Dr Johnson was questioned about the side effects of the medications which Mr King was taking. It appeared that these had been administered around 9 pm on 26 December 1994. Besides the anti-depressant and tranquilliser, Mr King was taking two drugs for blood pressure and hypertension. The drugs could lower Mr King's blood pressure and cause posteral hypertension whereby he could become dizzy or possibly black out. 38 Posteral hypertension could also occur if a person got up suddenly from a lying or sitting position after a lengthy period of time. Blood would pool in the lower limbs causing dizziness. 39 Of the other drugs Mr King was taking, Norvasc, would certainly have the effect of lowering blood pressure. Aprinox acted in a different way and was a diuretic, which could have the effect of causing the need to urinate urgently. 40 Dr Johnson indicated that he was also aware of Mr King's cardiovascular problems including transient ischemic attacks, which is an episode of fleeting dizziness representing a minor stroke. Dr Johnson considered that Mr King was vulnerable to transient ischemic attacks. 41 The doctor was also questioned about Mr King's suicidal tendencies. He thought that Mr King was progressing well in hospital and acknowledged that he was pleased with his progress. Mr King had been forthright in their discussion about suicide and answered that he did not contemplate suicide at Christmas, which Dr Johnson accepted. (Black AB 42) If Dr Johnson had been concerned at the risk of suicide, he could have 'scheduled' Mr King. 42 While Dr Johnson considered Mr King to be a suicide risk, it seems that his concern did not extend to scheduling him or taking any particular steps, other than to have him regularly reviewed by staff. It was, he agreed, a reasonably controlled risk. No particular warnings were given to staff. Indeed, Dr Johnson was cautiously optimistic that Mr King was improving. Conclusion 43 There are, in my opinion, a number of reasonable hypotheses, inconsistent with suicide, which could have caused Mr King to fall from the first floor verandah of the clinic. 44 Mr King suffered from hypertension and was prone to dizziness. Some of his medications could have exacerbated the situation. Mr King had apparently resumed smoking and, although no cigarettes were found on his body, a lighter was found close to his hand at the bottom of the steps. If he dropped the lighter accidentally over the balustrade, he could have stood on his toes to look over to see if he could see it and overtoppled. Also, his spectacles were close to his body, on one of the steps. He could have lost his glasses over the balcony and, either lurched to catch them, or bent forward over the balustrade to see if he could locate them. Either action could result in overtoppling. 45 I am conscious that the expert engineering evidence indicates that only a very small amount of elevation (around 50mm) was required to increase Mr King's centre of gravity to be able to go over the balustrade. On the evidence, standing on tip toes would be sufficient. 46 Moreover, the medical evidence of Mr King being at risk of suicide is not compelling when one examines Dr Johnson's evidence together with the statements of Mrs King and the two nurses about Mr King's behaviour on 25 and 26 December. If Mr King was contemplating suicide by throwing himself off the verandah, it seems somewhat strange since there was no certainty that he would succeed, bearing in mind the distance of the fall being only 4.3m. Also, if Mr King was contemplating suicide by these means, why would he take his spectacles or cigarette lighter? 47 I am driven to conclude that the appellant has not satisfied the onus of proof upon it in order to be able to rely on the policy exclusion. 48 The District Court decision was correct notwithstanding the acknowledged errors. Accordingly, the appeal should be dismissed with costs. oOo 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. 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