Ashton and Repatriation Commission

[2005] AATA 1287

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1287

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1591

VETERANS APPEALS  DIVISION		)
Re		PATRICIA ASHTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr J D Campbell, Member

Date22 December 2005

PlaceSydney

Decision The decision under review is affirmed.

............................................

Ms N Bell
Presiding member

VETERANS’ DIVISION – Operational Service – Accepted Disabilities – Generalised Anxiety Disorder – Alcohol Dependence or Abuse – Veteran Killed in Car Accident – Claim that Veteran’s Death War Caused – Veteran’s Death Not Contributed to In a Material Degree by War Service – Decision Under Review Affirmed

Veterans’ Entitlements Act 1986

Byrnes v Repatriation Commission (1999) 177 CLR 564

Bushell v Repatriation Commission 175 CLR 408

Repatriation Commission v Webb [2000] FCA 1635  

REASONS FOR DECISION

22 December 2005 Ms N Bell, Senior Member
Dr J D Campbell, Member

1.Mr Eric Ashton served in the Royal Australian Navy from 1963 to 1969 and rendered operational service in Malaysia and Vietnam.  Mr Ashton had, as accepted disabilities, generalised anxiety disorder and alcohol dependence or alcohol abuse.

2.Mr Ashton was killed in a motor vehicle accident on 22 September 2000, and there is no dispute that the cause of his death was “multiple injuries”.  Mrs Ashton was a passenger in the car driven by her husband together with her parents who were both killed in the accident. Mrs Ashton claimed a pension in respect of her husband’s death.  The Repatriation Commission and then the Veterans’ Review Board refused her claim on the basis that Mr Ashton’s death was not war caused.  She now seeks a review of that refusal.

3.Eligibility for a Disability Pension arises if war service has been the “cause” of the disability claimed. Section 8 of the Veterans’ Entitlements Act 1986 (“the Act”) provides for the basis on which war service may be regarded as being the “cause” of the claimed death. In particular, and most relevant to this application, section 8(1)(e) of the Act provides for eligibility where the death was “contributed to in a material degree by” war service.

4.The standard of proof to be adopted in considering whether a death is “war-caused” is set out in s120 of the Act. Where the relevant service was operational service the relevant standard of proof is “reasonable hypothesis”.   The standard of proof to be adopted in determining the “kind of death” suffered by Mr Ashton is that of reasonable satisfaction.

5.The first step to be taken in applying that standard of proof is summarised by the High Court in Byrnes v Repatriation Commission (1999) 177 CLR 564 as to, first, ascertain whether all or some of the facts raised by the material before the Tribunal give rise to a reasonable hypothesis connecting the veteran’s condition or death with war service. In Bushell v Repatriation Commission 175 CLR 408 the High Court held “… once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service” the test in section 120(3) is satisfied. It will remain, then, to consider whether the non existence of a crucial raised fact can be established beyond reasonable doubt (section 120(1)).

6.In those cases where there exists a relevant Statement of Principles, s 120A of the Act operates to define “reasonable hypothesis” by reference to the applicable SoP.   There is no dispute that there is no Statement of Principles in existence that is relevant to Mr Ashton’s death by multiple injuries.  Mrs Ashton relies instead on a hypothesis based on a “non Statement of Principles” death.

7.Mrs Ashton contends that the material before the Tribunal points to a hypothesis that Mr Ashton’s driving ability was impeded by his accepted conditions of alcohol dependence and generalised anxiety disorder and so he was unable to take evasive action so as to avoid collision and consequently died of multiple injuries.  In particular, she hypothesises, Mr Ashton was particularly anxious and agitated at the time of his death because he had abstained from alcohol on that day so that he could drive; he was in some kind of withdrawal from alcohol and his thinking was confused.

8.The hypothesis sought to be raised by Mrs Ashton can be divided into three components as follows:

(a)The cause of Mr Ashton’s death was multiple injuries in a motor vehicle accident;

(b)Mr Ashton’s accepted psychiatric conditions impeded his driving ability; and

(c)There was an opportunity to take evasive action that was not availed of by Mr Ashton.

9.The Full Federal Court in Repatriation Commission v Webb [2000] FCA 1635 held that the correct approach is to ask, in relation to each sequential part of a hypothesis, whether the facts point to that part of the hypothesis being reasonable and if that is so, then the overall hypothesis may be considered reasonable: “What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable.”

10.We will deal with each sequential part of the hypothesis below.

death by multiple injuries in a motor vehicle accident

11.There is no dispute that Mr Ashton died of multiple injuries in a motor vehicle accident on 22 September 2000 in which he was the driver of the vehicle.  This part of the hypothesis is therefore pointed to by the raised facts and is reasonable.  We are, for completeness, reasonably satisfied that the “kind of death” suffered by Mr Ashton was death by multiple injuries (see death certificate).

effect of mr ashton’s accepted psychiatric conditions on his driving ability

12.Mrs Ashton’s evidence was that on the day of the accident she had arranged with Mr Ashton to go to a club with her parents and her son.  She had been living with Mr Ashton, from whom she had previously separated, “on and off”, about 3 days per week.  She described Mr Ashton as a “terrible drinker” and said he was hardly ever sober.

13.Mrs Ashton’s arrangement with Mr Ashton on the day of the accident was that he would refrain from drinking during the day and would drive her, her son and her parents to the club in the afternoon.  In return, Mr Ashton would be free to drink at the club and Mrs Ashton would drive home.  She said that, when she arrived home from work at about 2.00 pm Mr Ashton was in an agitated state and very eager to leave.  He was so impatient to leave, she said, that he would not even wait for her son to join them.

14.Mrs Ashton said they left for the club at about 4.30 pm and Mr Ashton was very impatient on the way there.  She said he drove in a furious manner, upset by small things like traffic lights and slow traffic.  She said he was changing lanes and driving a little fast.  She considered he was more anxious on that day than was usual.  However, later in her evidence, Mrs Ashton described her husband as generally an erratic driver whose driving would prompt her to “drive” with him when she was a passenger.

15.Mrs Ashton said he took medication but did so irregularly because it interfered with his drinking.

16.Mrs Ashton described Mr Ashton’s drinking as “constant” and said that about 2 or 3 times per week, when she got home from work at about 2.00 pm, he would be “under the weather”.  She said he had been drinking the night before and followed his usual pattern of falling asleep at about 7.00 pm.

17.Mrs Ashton said she had no recollection of the accident and did not give evidence at the District Court hearing concerning charges made against a person involved in the accident.

18.Dr Law was Mr Ashton’s treating psychiatrist.  In his report of 19 June 2000, Dr Law said Mr Ashton was anxious and dejected, was drinking at least 12 to 14 schooners of beer per day and had tremulous hands.  He reported he prescribed Efexor XR 75 mg per night.

19.Dr Haik, Consultant Psychiatrist, gave evidence that generalised anxiety disorder makes for excessive anxiety and worry and would give rise to defensive and cautious driving rather than to an aggressive attitude on the road.  He noted that Mr Ashton’s blood alcohol level at the time of his death was nil (see Forensic Medicine Final Report) and that it takes some 18 to 24 hours abstinence to achieve a nil blood alcohol level.   Dr Haik considered this level of abstinence on the part of Mr Ashton to be puzzling in a person with alcohol dependence.  However, he did not consider that he had been in alcohol withdrawal because, being dependent, he would have simply had a drink before he left for the club rather than enter into alcohol withdrawal.  He also noted that delirium tremens may take about 2 days to develop and that a person in toxic withdrawal is seriously ill.  There is no indication that Mr Ashton was ill.

20.Dr Haik said he could not make a clear connection between Mr Ashton’s psychiatric conditions and his involvement in the motor vehicle accident.  He said that drawing any such connection would be speculation.

21.Documents relating to Mr Ashton’s application to the Tribunal concerning his psychiatric conditions were also before the Tribunal in this application (N2001/768).  Amongst those documents was a report from Dr Morse, Consultant Psychiatrist dated 19 December 1996.  Dr Morse said, among other things:

“He gets agitated and tense in all sorts of situations, particularly at work when there is any pressure and this has resulted in him leaving or loosing jobs and he tends to get irritable and short with people and withdrawn.  He hates all social situations and can’t stand being with people and so doesn’t go out.  He doesn’t mix with anyone.  He plays golf once per week but doesn’t do anything else.  He drives all right though gets tense at times.” (emphasis added)

22.Dr Haik said, in reference to Dr Law’s report concerning the medication prescribed for Mr Ashton, that the combination of alcohol and antidepressant medication would be to sedate and that a less sedative effect would result if the medication was taken irregularly.

23.A person was charged with the offence of dangerous driving causing death in relation to the death of Mr Ashton.  A transcript of the Judge’s instructions to the jury in that hearing was included in the T documents.  Those instructions, while not a full transcript of all of the evidence before the Court, are a useful summary of the evidence presented by the prosecution and defence.  It is important to this application that no mention is made by His Honour of any evidence to the effect that Mr Ashton was driving in a way that was dangerous or erratic.

24.While there is material before the Tribunal pointing to Mr Ashton’s abstinence from alcohol on the day of the accident, there is no material that points to him being in a state of alcohol withdrawal with its attendant symptoms and Dr Haik’s evidence that alcohol withdrawal produces serious illness underscores this.  There is no material that points to Mr Ashton being ill on the day.  There is material before the Tribunal to the effect that Mr Ashton was changing lanes and driving a little fast on the day of the accident but there is also material to the effect that he generally drove erratically or that he was an “all right”, but tense, driver.  There is material pointing to Mr Ashton being very anxious and impatient to get to the club but there is also material pointing to him generally being anxious at other times as well.

25.At best, there is material pointing to Mr Ashton being agitated and impatient, possibly because of abstinence from alcohol or possibly because of his generalised anxiety disorder, to him being eager to get to the club and to him driving a little fast and changing lanes.  In our view, the material points only to the manner in which Mr Ashton normally drove and leaves open the question of any impediment to his driving ability on that or any other day.  This falls somewhat short of the hypothesis put by Mrs Ashton.  However, for completeness, we will examine the third and final component of the hypothesis.

opportunity to take evasive action

26.The only material before the Tribunal that relates to the circumstances of the accident is the transcript of the Judge’s instructions to the jury in the District Court proceedings.  It is apparent from the transcript that the car that collided with Mr Ashton’s vehicle was travelling in the opposite direction, crossed the median strip airborne and collided with Mr Ashton’s car.  It is also apparent that the defendant’s car hit at least two other vehicles travelling in the same direction as Mr Ashton (see p. 22 - 24 transcript).

27.The evidence of a Consultant Traffic Engineer, specialising in crash analysis, was that the accused’s car was travelling between 73 and 80 kilometres per hour.  Mr Bunn, for the Repatriation Commission, submitted that amounts to a speed of approximately 40 metres per second and would have given Mr Ashton less than 1 second in which to take evasive action.   We agree with this extrapolation from the material before us.

28.This material does not point to an opportunity for any evasive action to have been taken by Mr Ashton.

29.It follows that, as at least one component of the hypothesis is not pointed to by the material, the hypothesis as a whole is not pointed to and is not reasonable.   Consequently Mr Ashton’s death was not war caused.

decision

30.The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr J D Campbell, Member.

Signed:         .........[Linda Blue]......................................
  Associate

Date of Hearing  1 November 2005
Date of Decision  22 December 2005        
Solicitor for the Applicant          Fairbairns Lawyers   
Solicitor for the Respondent     Department of Veterans' Affairs