FEDERAL COURT OF AUSTRALIA

McLean v Repatriation Commission [2001] FCA 243

ADMINISTRATIVE LAW – War widow’s pension – reasonable hypothesis that death war-caused – whether the Administrative Appeals Tribunal (“AAT”) erred in holding that no hypothesis was raised – whether the AAT erred in holding that the hypothesis was not recoverable – where the hypothesis required that  no one factor be assumed

Veteran’ Entitlements Act 1986

Bushell v Repatriation Commission (1992) 175 CLR 408 applied

Byrnes v Repatriation Commission (1993) 177 CLR 564 distinguished

Repatriation Commission v Bey (1997) 79 FCR 364 applied

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

Repatriation Commission v Stares (1996) 41 ALD 212 distinguished

JOYCE LEONIE McLEAN v

REPATRIATION COMMISSION

Q 70 OF 2000

TAMBERLIN J

SYDNEY

13 MARCH 2001

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Administrative Appeals Tribunal (“the AAT”) in its Veterans’ Appeals Division given at Brisbane on 22 June 2000.  The AAT decision affirmed a decision of the respondent refusing to grant a pension to the applicant in respect to the death of her husband (“the veteran”).

2                     The applicant lodged a claim for a pension under s14 of the Veteran’ Entitlements Act 1986 (“the Act”) on 13 June 1995.  The basis of her claim to entitlement was said to be that the death of the veteran in the course of tree felling work on a northern New South Wales hillside on 24 August 1953 was war-caused.

3                     Because the veteran had rendered operational service, the standard of proof to be applied when determining whether his death was war-caused is that prescribed by ss 120(1) and (3) of the Act.  Since the applicant’s claim for a pension was lodged after 1 June 1994 the provisions of s 120A apply.

4                     The relevant statutory provisions are as follows:

“14      Claim for Pension

(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).

….

(3)       A claim for a pension:

            (a)        shall be in writing and in accordance with a form approved by

                         the Commission;

…

120      Standard of Proof

(1)       Where a claim … for a pension in respect of  … the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that … the death of the veteran was war-caused, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

…

(3)       In applying subsection (1) … in respect of a death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

            …

                        (c) that the death was war-caused or defence-caused;

            … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person.

…

(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)       a claimant or applicant for a pension or increased pension, …

            or other benefit, under this Act; or

            (b)        the Commonwealth, the Department or any other person in

                        relation to such a claim or application;

            any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

…

120A   Reasonableness of hypothesis to be assessed by reference to

            Statement of Principles

            …

(3)       For the purposes of subsection 120(3), a hypothesis connecting … the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

            (a)        a Statement of Principles …; or

            (b)        a determination of the Commission …

            that upholds the hypothesis.” (Emphasis added)

5                     The position with respect to Statements of Principle is set out in the AAT decision in these terms:

“22.     In the case of Mrs McLean’s claim, the factor upon which she relies is the same in each SoP but there are differences in the definitions of the expressions used in the factor.  In SoP 105, which was the SoP in force at the time the Commission made its decision, the factor is 1(b) and reads:

‘… the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person’s relevant service, are:

…

(b)       contracting a significant inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; …’

The factor must be related to any service rendered by Mr McLean (paragraph 2)

23.       The expression ‘inflammatory joint disease’ is defined in SoP 105 to mean:

‘… a disease affecting a joint or joints where there is a swelling, inflammation and pain that persisted for at least five days;’ (paragraph 4)

The expression ‘lumbar spondylisis’ is defined to mean:

‘… a degenerative joint disease … affecting the lumbar spine, (L1-L5, L5-S1), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;’ (paragraph 4)

24.       The factor set out in paragraph 1(b) of SoP 105 is mirrored in paragraph 5(b) of each of SoP 165, SoP 52 and SoP 27.  The definition of ‘inflammatory joint disease’ in SoP 105 is identical with that in SoP 165 (paragraph 7) but the definition of that expression in SoP 52 and SoP 27 reads:

“inflammatory joint disease’ means rheumatoid arthritis, Reiter’s syndrome, psoriatic arthritis, ankylosing spondylitis, or arthritis associated with Crohn’s disease or ulcerative colitis;’ (paragraph 8).

The expression ‘lumbar spondylosis’ is defined in SoL 165, SoP 52 and SoP 27 to mean:

‘… degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or lumbar symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD … code 721.3, 721.42 or 722.52.’ (paragraph 2(b)) (Emphasis added)

BACKGROUND

6                     The veteran was born on 5 January 1914 and the applicant on 3 November 1917.  They were married in January 1934.  The veteran served in the RAAF during World War II and the whole period of his service from 13 May 1940 to 18 July 1946 constituted operational service under the Act.  During his war service the veteran was an aircraft mechanic and fitter.

7                     The veteran died on 24 August 1953 aged thirty-nine.  The circumstances in which the death occurred are that on the day in question the veteran was felling trees on a hillside.  He was accompanied by a Mr Jones and a Mr McDougall.  At the time of the accident Mr McDougall was cutting down a large tree.  He was some seventy to eighty yards up the hillside from where the veteran and Mr Jones were working side by side trimming timber and lantana.  Mr McDougall shouted warnings that the tree he was cutting was about to fall.  The veteran shouted to Mr McDougall to let the tree fall.  The tree then began to fall down the hillside, following the line of a gully.  It appears that the veteran and Mr Jones moved in opposite directions out of the line of the tree’s descent.  During the tree’s passage it dislodged a large boulder.  The veteran was hit in the chest by the boulder as it bounced down the hill.  The veteran’s body was later examined and it was found that he had suffered compression injuries to his chest which had killed him.  The cause of death was certified to be “[a]ccidentally killed by a large rock rolling down the hill side.”

8                     It was not in dispute that Mr Jones and Mr McDougall, who were the two witnesses in the vicinity of the accident, did not see the actions taken by Mr McLean as the rock was dislodged other than that he moved in the opposite direction to Mr Jones.  Mr Jones was looking to his own safety, as Mr McLean had told him to do, while Mr McDougall was out of sight and up the hill.  Mr McDougall delivered the final axe cut to the tree when told to do so by Mr McLean.  It was not expected or anticipated that the rock would be dislodged as a consequence of the tree felling operation.  Mr McDougall first became aware that a rock had been dislodged after the tree had commenced its descent.  There is no evidence of any warning in relation to the rock.  Mr Jones did not see the rock until after Mr McLean had died and did not take it into account in considering his own safety.  There is no direct evidence that Mr McLean saw the rock or as to the extent of his mobility at the time immediately prior to the impact of the rock.

The hypothesis

9                     The hypothesis proposed on behalf of the applicant to connect the death with the war service was set out in the AAT decision.  It was:

“that Mr McLean suffered from a congenital condition of sacralisation of the fifth lumbar segment on the right side; he had reported incidents involving a bad back whilst on service; before his service, he had not suffered any restriction of movement because of back pain, but after service, he did; his restriction of movement meant that he could not avoid a rock that fell down a hillside when a tree was felled; and he died as a result of being struck by the rock.”

Principles

10                  The principles to be applied in determining whether the requirements of ss 120(1) and (3) of the Act have been considered in a number of cases: see Bushell v Repatriation Commission (1992) 175 CLR 408; Byrnes v Repatriation Commission (1993) 177 CLR 564; Repatriation Commission v Bey (1997) 79 FCR 364 and recently the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

11                  In Byrnes the High Court said of ss  120(1) and (3) (at 571):

“The position may be summarised as follows:  (1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.  (2) If a reasonable hypothesis is established, subs (1) of s 120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”

12                  The method of applying the subsection was said by the Full Court in Deledio to be well settled and it was outlined by the Court as follows (at 91):

“(1)     One commences with subs (3).  The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.

(2)        The second step under subs (3) is to determine whether the hypothesis is reasonable.  The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the ‘raised facts’) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true.  In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.

(3)        Whether a hypothesis is reasonable is a question of fact.  The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material.  Proof of facts and onus of proof are not in issue at this point.

(4)        If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached.  Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” (Emphasis added)

APPLICANT’S submissions

13                  The applicant submits that the AAT did not follow the four step process referred to in Deledio.  It is said that the AAT wrongly questioned whether there was evidence in support of every single part of the sequence of events that had been hypothesised. This, it is said, is an error of law because not every element in the hypothesis needs to be supported by evidence tending to establish to it.  In support of this contention reference is made to the statement by the High Court in Byrnes (at 570):

“In some cases, the hypothesis may assume the occurrence or existence of a ‘fact’.  That itself does not make the hypothesis unreasonable.  So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materialsbefore the Commission did not reveal the extent of the injury which he then suffered.”

14                  The appellant says that by saying that ‘the material must point to some fact or facts’ their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it.  Such a requirement would convert the hypothesis to a prima facie conclusion.  It is trite to observe that a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.

15                  It is also said that the AAT improperly placed a burden on the applicant to “prove, by way of adducing evidence, every single element in the chain of events leading up to death,” and that this was contrary to s 120(6) of the Act which provides that there is no burden of proof on a party.

16                  The applicant submits that a further error is that the AAT, when considering whether a hypothesis had been raised, wrongly embarked on a fact finding exercise where such an exercise ought not to have been undertaken at the stage of deciding whether there was an available hypothesis.

17                  The appellant next submits that the AAT erred in finding that the hypothesis was unreasonable in the sense that it was too tenuous.  The first reason for this contention is that the question of whether the veteran suffered from back problems was raised as a part of the hypothesis and was to be determined on the prescribed standard of proof which is whether the facts point to the hypothesis.  It is said that the AAT has decided on the balance of probabilities whether in fact the veteran had suffered from one or more back conditions when its task was limited to determining whether there is material pointing to the development of a back condition arising out of service. The applicant submits that there were entries in the service record which pointed to the occurrence of a back condition in service.

18                  Finally, it is said that in determining the question whether the hypothesis was too tenuous the AAT required every element of the hypothesis to be evidenced and proven.  In support of this submission relies on the AAT referring to the fact that there “was no evidence” of certain minor matters.

Respondent’s submissions

19                  The respondent accepts the principles set out by the Full Court in Deledio as applicable in the present circumstances and submits that the approach of the AAT was consistent with that decision.  The respondent says that contrary to the applicant’s contention the judgment in Byrnes is not authority for the proposition that s 120(3) permits the ATT to hypothesise a series or “sequence of events” such as, in this case, seeing or hearing the displacement and movement of the rock and attempting to avoid it in an attempt to establish the existence of an hypothesis.

20                  In the extract quoted earlier the Court in Byrnes pointed out that the assumption of the occurrence or existence of a fact did not of itself make the hypothesis unreasonable.  However, in that case the appellant’s hypothesis assumed that the appellant sustained a severe injury when he dived into a swimming pool notwithstanding that the materials before the Commission did not reveal the extent or severity of the injury which was suffered.  The assumption made was as to the degree of the injury and not to a possible factual sequence of events.  Much more is sought to be assumed in the present case.

21                  The respondent further submits that the AAT’s decision does not disclose an intention to impose an onus of proof requirement on either party.

22                  Next, the respondent says that if there is a hypothesis raised then it is too remote.  In support of this submission, in relation to the occurrence of the injury during the war which could have contributed to the death, the respondent says that there was no evidence of any back condition having been caused by the war or arising from the war. Furthermore, it is said that the it was not open to the AAT to form the view that the proposed hypothesis was reasonable given the specific evidence as to the circumstances in which the death occurred.  In particular reference is made to the absence of evidence of lack of mobility, any perception of the moving rock, any attempt to move in relation to the rock, or the effect of any inability to avoid the rock.

REASONING

23                  In relation to the existence of a hypothesis it should be borne in mind that the hypothesis sought to be raised need not be the sole possible scenario for the death, but it must be a possible explanation.  It does not have to be the correct one on any balancing of the evidence.  The hypothesis raised must be examined to see whether it is in fact an available hypothesis on the whole of the material in the sense that it is pointed to or raised by the facts even if an assumption needs to be made.  There must be facts which point to the hypothesis rather than leaving the matter at large or open.  The existence of another inconsistent hypothesis or of inconsistent material does not necessarily mean that there is no available hypothesis.

24                  As a matter of possibility, in my view, the material before the AAT considered as a whole is consistent with the circumstances advanced as a possible explanation or hypothesis as to what occurred.  It is possible, for example, on the material that the veteran may have become aware of the falling rock and sought to escape but was unable to move sufficiently swiftly as a consequence of a back injury received during the war.  The evidence of the applicant that the veteran did not suffer any problems with his back prior to the war, coupled with the medical records as to complaints of his back injury during the war and the applicant's evidence of back problems after the war, when considered together with the other material as to the circumstances of the accident, in my view at least raises the hypothesis.  To the extent that the AAT decided that there was no hypothesis raised I consider that the it erred in applying too high a standard in respect of what is a low threshold of proof.

25                  The next question is whether that hypothesis can be described as a “reasonable hypothesis” within the meaning of s 120(3) of the Act.  In my view it is not correct to say that, apart from the 1946 X-Rays and the evidence of Dr Seaton, there is no other evidence of any other back condition having arisen out of or being attributable to the veteran’s eligible war service.  The evidence of the widow referred to earlier together with the reference in the records to an injury to the back and to tenderness being experienced in the lumbar sacro region support the conclusion that there was a back condition arising from war service.  There are also references to nausea and to pain in the lumbar sacral area in 1943 together with a reference to the veteran lifting “ammo” boxes which lend further support for this conclusion.  Although this latter statement relates to a torn chest muscle it also indicates the nature of the activities engaged in by the veteran.  True it is that there was other material, including a medical examination record prior to the veteran’s discharge of 14 June 1946, in which there is no reference is made to any ailments, pain or distress in relation to the plaintiff’s back, nor any lack of mobility.  In reaching its conclusion on this aspect of the hypothesis I consider that the AAT erred because it failed to look at the whole of the material in relation to the veteran’s back condition. 

26                  The second and, as I read it, independent ground on which it was considered that the hypothesis was unreasonable was that the AAT considered that the nexus between the death and any war injury was too tenuous.  This was said to be because the material fell far short of pointing to the sequence of events which occurred.  Mr Jones, one of the workmates of the veteran at the time of the accident, said:

“… At the direction of the deceased I had commenced cutting a track in through some heavy lantana growth so as to get the tractor in through some felled trees.  With the deceased I was brushing this undergrowth down hill from the heads of the two felled trees and the deceased was cutting the limbs and heads from these two felled trees when I heard Neil McDougall call out ‘ Look out this tree is cracking’.

After deceased and I went on another few minutes with our work I heard McDougall again call out ‘This tree is cracking again, look out.’ He would then be seventy or eighty yards away.  Both deceased and I looked towards where McDougall was cutting the tree and which was directly above us up a particularly steep hill and up, from where the two fallen trees came from and which had shot down the mountain side to where we were and this made me rather wary.

After having a good look I went on brushing the lantana and the deceased continued trimming the heads of the trees just near where I was working and then I heard McDougall call out a warning the third time and in a loud voice he said ‘Look out there this tree is ready to go.'

I looked up and in a very shot (sic) space of time I saw the tree commence to fall and it appeared to be falling out slightly to our left towards the face of the ridge the deceased and I being in the gully.  The deceased called out to me ‘Get clear Jack and watch she does not shoot.’  Just before the tree commenced to fall the deceased called out to McDougall ‘Let her go Neil’.

As the tree was falling it appeared that it may come towards us and shoot into the gully as the other two did.  I have had many years experience in the bush and apart from the deceased calling out to me to get clear I could see that we were in danger if we did not act quickly and I jumped over a big log nearby in the undergrowth and lyed (sic) flat alongside a log and the head of the falling tree fell all around me and when it came to rest I could not see the deceased.

Just as I run (sic) to jump over the log which was only ten or twelve feet way the deceased was near me with an axe in one hand, I am not sure which hand, and I noticed that he turned to go in the opposite direction to me and that was the last time I saw him alive and on his feet …

… I noticed that just below where deceased was lying and directly beneath him about thirty feet away was a very large rock weighing about half a ton stationary amongst the lantana and which had only just recently come to rest there and showed signs of having rolled down with force from up the hill at the same time as the last tree had fallen.  This stone would have come down the hill past where I last saw the deceased alive.  Deceased would be down the hill some twenty feet from where I last saw him.   Just before the tree was falled (sic) deceased was in his normal good health and in good spirits …

… Because of my bush experience I believed deceased would be keenly watching the falling tree and would not notice any rolling rocks that may be coming down the hill just off the course of the falling tree.” (Emphasis added)

27                  The statement of Mr McDougall, an employee of the veteran, stated in respect of the accident:

“… I could then see the deceased and Jack Jones near thenheads (sic) of the two trees first felled.  They appeared to be about eighty yards away.  They did not appear to be in a safe place and it (sic) was why I was anxious to give them so much warning.  I kept on cutting and there was a space of about another four or five minutes or perhaps more and the tree appeared to be just about ready to fall so I called out again ‘This trees is ready to let go’.

I then heard the deceased say ‘Watch out it might shoot’.  I knew he was warning his men.  I then saw Jack Jones get over a log and disappear in the undergrowth away from the line the tree would fall on.  I also saw the deceased go in the opposite direction and I heard him sing out to me ‘Right, let her go’.  I then made another few cuts and the tree fell down the hill towards where deceased and Jones were.  I heard the tree hit the ground which was then out of sight because as soon as the tree started to fall I quickly went away a few feet from the stump for safety.

At the same time as I heard the tree hit the ground I heard a noise like a large rock rolling down the mountain in the diection (sic) the falling tree went.  This rolling rock sound made me suspicious as regards a danger to deceased and his men so I hurried down the hill after the fallen tree and saw the large rock disappear at the bottom of the gully into some lantana directly on the course where I saw Jones and deceased just before the tree fell …”

28                  In relation to the circumstances of the death the AAT summarised the evidence in this way:

“ 64… There is material in the statements of Mr Jones and Mr McDougall that points to Mr McLean’s being aware of the tree’s being felled and the likely paths it would take in its fall.  Those same statements contain material pointing to Mr McLean’s being aware of the need to move himself out of the path of the tree and to warn Mr Jones to do the same.  The statements of Mr Jones and Mr McDougall point to the third tree taking the same path as the earlier two trees.

65        There is no material pointing to Mr McLean’s having seen the rock let alone having been unable to get out of its way because of his limited mobility.  Mr Jones did not see the rock come down and was not aware of it until after he had found Mr McLean.  After the tree had commenced its descent, Mr McDougall heard a noise that was like a large rock and, after hurrying down the cliff, saw a rock disappear at the bottom of the gulley into some lantana.  It had taken a course directly over where he had earlier seen Mr McLean and Mr Jones.  Mr McDougall’s evidence does not point to what Mr McLean did after the time that Mr Jones last saw him and before he was hit by the rock.”

29                  In my view, the conclusion reached by the AAT that the hypothesis was too tenuous, and so was unreasonable, was open to it.  There are critical gaps in the material before the AAT, in the form of the observations of the parties present as to the circumstances of the veteran in relation to the dislodgment of the rock and path taken by it and in respect of the position of the veteran at the time of the impact which caused his death.  There were no observations as to the restrictions in his movement, or as to his lack of movement at the time immediately before he was struck by the rock.  In particular there is no indication that he was aware of the dislodgment of the rock or as to what course of action he adopted.  No one observed him at the critical time.  There is nothing to point to the fact that the mobility or lack of mobility of the veteran played any role in the death.  The position might be otherwise if there had been some material as to impaired mobility of the deceased at the time, but there is no such material.  The situation was one of great urgency and immediately impending danger which was perceived to be the felling of the tree.  The dislodgment of the rock was a very random act and there is no indication that it was or could have been anticipated or as to what pattern of movement might have flowed if a warning was given as to the path of the rock.  There is simply a lack of material on this central element on the hypothesis.

30                  Whether a hypothesis is reasonable is a question for the AAT and, in my view, no error of law has been demonstrated.  I note the applicant’s reference to Byrnes and  Repatriation Commission v Stares (1996) 41 ALD 212to the effect that a hypothesis may be reasonable even though each element is not supported by material before the AAT.  However, in this case the “gap” in the material related to a large, critical part of the hypothesis.  In my view the AAT member correctly described it as a “vital part of the hypothesis” and her finding that the hypothesis was unreasonable contains no error of law.

31                  Nor, in my view, did the AAT engage in a fact finding exercise or place any onus on the applicant. Its conclusion was reached on the whole of the material and did not depend on an evaluation of conflicting evidence or discounting the force of evidence.  It is true that the AAT identified particular pieces of evidence and their relationship to the hypothesis.  However, this discloses no error and is in accordance with the approach taken by the Full Court in Delidio (at 91) that “[i]n determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.”

32                  The AAT’s decision is simply a determination as to whether on any reasonable view of the material read as a whole a sufficient nexus had been shown between the veteran’s war injuries and his death.  This is simply a question of fact and degree.

33                  In these circumstances, in my view, the AAT did not err in reaching its conclusion that the hypothesis was not reasonable.  Although I consider that the AAT has erred in the respects referred to earlier, I consider that on the critical question as to the reasonableness of the hypothesis, the conclusion which it reached was open to it.  The appeal should be dismissed with costs.

Associate:

Dated:              13 March 2001