Cameron v Repatriation Commission

[2003] FCA 1323

FEDERAL COURT OF AUSTRALIA

Cameron v Repatriation Commission [2003] FCA 1323

VETERAN’S ENTITLEMENT – whether impermissible fact finding under s 120(3) of the Veteran’s Entitlement Act 1986 (Cth) in assessing whether a reasonable hypothesis existed – difference between fact finding or rejecting evidence and assessing and weighing all evidence – conclusion as to lack of reasonable hypothesis a question of fact.

Administrative Appeals Tribunal Act 1975 (Cth)s 44

Veteran’s Entitlement Act 1986 (Cth)   ss 120, 175

Bull v Repatriation Commission (2001) 188 ALR 756 applied

Bushell v Repatriation Commission (1992) 175 CLR 408 referred to

Byrnes v Repatriation Commission (1993) 177 CLR 564 referred to

East v Repatriation Commission (1987) 16 FCR 517 referred to

Elliott v Repatriation Commission (2002) 73 ALD 377 discussed

Repatriation Commission v Bey (1997) 79 FCR 364 applied

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

CLARICE CAMERON v REPATRIATION COMMISSION
N 79 of 2003

ALLSOP J
21 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 79 of 2003

BETWEEN:	CLARICE CAMERON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	21 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 79 of 2003

BETWEEN:	CLARICE CAMERON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	ALLSOP J
DATE:	21 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background

1. This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 8 January 2003 which affirmed the decision of the Repatriation Commission to refuse the applicant’s claim for a widow’s pension under the Veteran’s Entitlement Act 1986 (Cth) (the Act).

2. The error of law identified in the notice of appeal was expressed as follows:

   Whether the Tribunal erred in law in its application of section 120 of the [Act].

3. The submissions of the applicant provided some more illumination as to the nature of the error of law:

   …the tribunal erred in its interpretation of section 120 of the Act in that it prematurely and at the incorrect standard of proof made findings of fact.

4. The nature of the asserted error and the submissions made require careful attention to the fact finding and reasoning process of the Tribunal, not, it should be emphasised, to ascertain the correctness or otherwise of the facts as found, but, rather, to see whether an approach was adopted contrary to that laid down by s 120 of the Act and the cases illuminating its operation.

5. The applicant’s late husband (Mr Cameron) was a veteran as defined in the Act.  He rendered operational service from 6 May 1942 to 14 December 1945.

6. Mr Cameron died on 18 April 1980, when he was hit by a car crossing a road in Mudgee.

7. The record of the post mortem carried out the following day recorded, amongst other findings:

   (f)A small tear of the thoracic Aorta with a large mass of blood clot.

   …
   (h)      Current left-sided pneumonia.

8. The Tribunal recorded the following agreed facts in [4] and [5] of its reasons:

   [3]The following matters are not in dispute.  The Veteran was enlisted in the Australian Army from 6 May 1942 to 14 December 1945, a period of operational service.  The Veteran died when struck by a motor vehicle as he was crossing Market Street in Mudgee at approximately 7:50 pm on Friday 18 April 1980.  The parties agreed that the cause of death was a tear to the thoracic aorta and severe trauma caused by the motor vehicle impact.  The parties also agreed that, on death, the Veteran had pneumonia although the question of whether that was due to contusions from the impact of the motor vehicle or whether the pneumonia was current before the accident is in dispute.  At the time of his death the Veteran was 68 years old.

   [4]It is also agreed between the parties that the Veteran had chronic bronchitis which had, in conformity with Statement of Principles (“SoP”) number 73 of 1997, been war caused given his three or four fold increase in the amount of his tobacco consumption during his service.

9. The applicant made an informal claim in December 1988 for a pension, followed by a formal claim in 1989.  In April 1989 a delegate of the Commission dealt with the claim, saying in the statement of reasons, amongst other things:

   In determining this claim I am required by section 120 of the Veterans’ Entitlements Act to grant the claim unless I am satisfied beyond reasonable doubt that there is no sufficient ground to grant the claim. I shall be so satisfied if the material before me raises no reasonable hypothesis connecting Mr Cameron’s death with his operational service.

   Mr Cameron’s death certificate shows that he died from multiple injuries when he was struck by a motor vehicle as he crossed Market Street, Mudgee.

   In the circumstances of Mr Cameron’s death I find that it is not possible to find any reasonable hypothesis relating his being struck by a motor vehicle to his service.

   The material before me raises no reasonable hypothesis that Mr Cameron’s death was war-caused.  I am therefore satisfied beyond reasonable doubt that there is no sufficient ground to grant the claim, and the claim is refused.

10. In 2000 the applicant lodged a claim under s 14 of the Act for a pension.  The applicant provided the following information as to the connection between Mr Cameron’s service and his death:

    On 18-4-80 my husband was struck by a car & died.  I believed that his death can be related to his service as he was a gunner in an anti aircraft battery, seeing action in New Guinea and Moratai where he was involved in a large number of engagements with enemy forces.  The acoustic trauma caused the onset of his loss of hearing also effected his personal & professional life, with his employer at Jenolan Caves dismissing him on safety grounds due to his hearing (see attached) loss.  His hearing became so bad that on the 18-4-80 he did not hear the car coming and just walked out in its path.

11. On 2 January 2001, the Commission refused the claim.  A review of that decision was sought under s 31 of the Act.  The grounds of review were expressed by the applicant as follows:

    My husband had a war-related smoking habit.  He suffered from severe airways disease with heart disease & left ventricular failure.  The day he was killed he was suffering from pneumonia.  The breathing difficulties suffered by the veteran slowed him down, distracted him and made him unable to react quickly.

    I believe the elderly, slowly moving veteran could not avoid the accident.

12. On 5 September 2001, the Veteran’s Review Board affirmed the decision of the Commission.  Review was sought under s 175 of the Act to the AAT.

    The Legislative Framework

13. It was common ground that the matter was to be approached by the Tribunal in accordance with s 120 of the Act and, in particular in accordance with s 120(1) and (3), the terms of which were:

    (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

    Note: This subsection is affected by section 120A.

    …

    (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the 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:

    (a)     that the injury was a war-caused injury or a defence-caused injury;

    (b)     that the disease was a war-caused disease or a defence-caused disease; or

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

    as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.

    Note: This subsection is affected by section 120A.

14. The Tribunal must be satisfied of the “reasonable hypothesis” connecting the death with the circumstances of the particular service.  If the Tribunal is of the opinion that there is no such reasonable hypothesis, that concludes the enquiry.

15. The formation of the opinion is a question of fact:  Bull v Repatriation Commission (2001) 188 ALR 756 at 761 [22]. As Emmett and I said in Bull at 760-62 [17] – [25]:

    [17]In East, after an examination of the early legislation and other legislative history, of the background to the amendments to the Repatriation Act in 1985, in particular the decision of the High Court in Repatriation Commission v O’Brien (1985) 155 CLR 422, of the surrounding Parliamentary material to those 1985 amendments, of the drafting of the Act in 1986 and of the relationship between s 120 and that background, the Court said the following:

    … The adoption of Brennan J’s notion of  a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link – even prima facie – as a fact.   The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:

    “A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’:  The Concise Oxford Dictionary.

    …
    The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis.  In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.  For  a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.  At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact.  Were it otherwise, it would no longer be a hypothesis but it would have been elevated to some higher status.  Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a [sic] least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.”

    We agree with this analysis.  A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts.  It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.  [Emphasis added.]

    [18]It is important to understand the following about East.  The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous.  However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.  The material must point to the connecting hypothesis:  see the emphasised paragraph in [17] above.

    [19]Before proceeding any further two comments are appropriate.  First, it should be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury or death with the circumstances of service.  Secondly, the phrases used by the Court such as ‘not obviously fanciful’, ‘not impossible’, ‘not incredible’, ‘tenable’, ‘not too remote’ and ‘not too tenuous’ are useful elucidators of the meaning of ‘reasonable’.  This is especially so given the subtle range of meaning of the words and phrase ‘reasonable’, ‘unreasonable’ and ‘not unreasonable’.  Much depends on context and purpose.  However, the words of elucidation should not be substituted for the words of the statute: see generally the comments of the Full Court in National Mutual v Campbell (2000) 99 FCR 562 at 571, [36]. What is required of the decision-maker by subs 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.

    [20]The views of the Full Court in East, supra at 532-33 have been followed by later Full Courts: Webb v Repatriation Commission (1988) 19 FCR 139, 141-2 and 147; Repatriation Commission v Whetton (1991) 31 FCR 513, 515; Bell v Repatriation Commission (1992) 26 ALD 545; and Repatriation Commission v Bey (1997) 79 FCR 364, 371, 372-73, 375-6 (a five member bench).

    [21]There is no doubt that the Tribunal is obliged to look at all the material, not just some of it.  It is not entitled at this point to find facts or reject matters.  See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

    [22]The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it.  It involves reaching an opinion about a factual matter.  It is, in that sense, a question of fact:  Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented.

    [23]If the Tribunal examined all the material and if the Tribunal followed the correct approach to its task under subs 120(3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed:  R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1994) 69 CLR 407, 430; Bankstown Municipal Council v Fripp (1916) 26 CLR 385, 403; Foley v Padley (1984) 154 CLR 349, 353, 370; Buck v Bavone (1976) 135 CLR 110, 118-9; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135, 150, at [34]. The “reasonableness” of the formation of the opinion embodied within this proposition should be understood as saying no more than did Starke J in Boucaut Bay Co (In Liq) v The Commonwealth (1927) 40 CLR 98 at 101, approved by Windeyer J in FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57 when he said:

    … He must not act dishonestly, capriciously or arbitrarily:…  So long, however, as the Minister acts upon circumstances … giving him a rational ground for the belief entertained, …

    [24]Put another way, the opinion is to be honestly held and not reached capriciously or arbitrarily and it must not be irrational:  Boucaut Bay, supra, R v Connell, supra at 432, FCT v Bayly (1952) 86 CLR 506, 510; Buck v Bavone, supra at 118-9.

    [25]If such circumstances are displayed, a basis for curial intervention is laid out.  In these circumstances there is a failure of jurisdiction:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-6; Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297, 303; Minister for Immigration v Eshetu (1999) 197 CLR 611, 650-57 and there is an error of law entitling the Court to set aside the decision.

16. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8 the Full Court said the following:

    The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

    The Asserted Error

17. In essence, the applicant says that the Tribunal, in coming to its opinion that there was no relevant reasonable hypothesis, engaged in inadmissible fact finding, contrary to the course laid out in the passage cited from Deledio and in [21] of the reasons of Emmett J and me in Bull, set out above.

    The Evidence Before, the Reasoning of, and the Decision of, the Tribunal

18. The issues before, and the hypothesis put to, the Tribunal were set out in [5] to [7] of the Tribunal’s reasons:

    5.The hypothesis put forward by the Applicant is that the Veteran's war caused chronic bronchitis gave rise to a number of bouts of pneumonia, the latest of which developed a few days before his death. It was put that the Veteran's pneumonia debilitated him and made him unable to properly react to an oncoming car and he was subsequently hit by the car and killed.

    6. As noted above, the parties agreed that the Veteran had war caused chronic bronchitis and that the cause of death was a tear to the thoracic aorta and severe trauma caused by the impact of the motor vehicle. The parties also agreed that both death by tear to the thoracic aorta and pneumonia are not the subject of SoPs and so the Tribunal must look to the material before it to decide whether it raises a reasonable hypothesis connecting the Veteran's death with the circumstances of his service.

    7. Given the parties' agreement that the Veteran's chronic bronchitis is war caused and that the Veteran's death was caused by the impact of the motor vehicle, the Tribunal must turn its attention to the "connecting" aspects of the hypothesis and decide whether the material before it points to the hypothesis that the Veteran developed pneumonia before the accident (and had pneumonia at the time of the accident) and, if so, rendered the Veteran unable to properly react to an oncoming car.

19. Later in its reasons, the Tribunal expressed the hypothesis put forward in the following terms:

    27.  The hypothesis put forward by the Applicant is that the Veteran's chronic bronchitis gave rise to pneumonia some three days prior to the Veteran's death and that pneumonia produced a fever and consequent delirium and confusion which rendered the Veteran unable to protect himself or remove himself from the path of an oncoming vehicle.

20. The Tribunal received into evidence a statement from Mrs Cameron dated 28 November 2002, oral evidence from Mrs Cameron and statements from medical experts – namely, a report of Dr Funnell dated 29 May 2002, a report of Dr Burns dated 19 July 2002, a second report of Dr Burns dated 27 November 2002 and a report of Professor Breslin dated 11 November 2002, as well as documents relating to the Inquest produced by Mudgee Local Court.

1. The Tribunal dealt with the applicant’s evidence, at [10] to [12] of its reasons, as follows:

   10.The Veteran, according to the Applicant, was always very sick after his discharge from the army. He had become a heavy smoker during service, increasing his consumption of tobacco by three or four times the amount he had smoked when he joined the army. The Veteran developed pneumonia at one stage in the army and after that his chest was "very bad". He would get sick and be confined to bed for few days every month. The Veteran retired in 1973 because of chest problems and tried to help his son with building work he was doing but was unable to do so because of his chest.

   11.The Applicant said that three days before the Veteran died he developed pneumonia and was coughing up blood. She arranged to have the local doctor visit him at home and he was told not to leave his bed. On the day he died the Veteran was concerned about the council rates being due and attracting interest if they were not paid and so at about lunch time he walked up to the council offices and paid the rates. He returned home on foot about an hour later and spent some time lying down reading the paper. According to the Applicant, the Veteran then, at about 4pm, walked a few blocks to the Court House Hotel and had "a couple of beers" with his son and walked back. The Applicant said the Veteran would generally visit the Hotel about three times per week. Later in the day or in the evening he rode with his daughter and son in law in their car to the Court House Hotel to purchase some wine for some visitors. He was struck down crossing the road at that time.

   12. The Applicant said that after the inquest she left Mudgee because she did not want to see the woman who knocked the Veteran down. She considered that that woman had told a lot of lies in relation to the Veteran's death.

2. The blood analysis report on Mr Cameron after his death revealed a blood alcohol level of 0.2 grams of alcohol per 100 ml of blood.

3. The Coroner’s findings were before the Tribunal and were as follows:

   16.The Coroner's formal finding was that the Veteran "died of the effects of the multiple injuries sustained then and there, whilst crossing that street, he was struck by a motor vehicle driven by Pauline Mavis McCallum". The transcript of the inquest shows that the Coroner reached the following conclusion:

   "I find that the dark clothing worn by the deceased, his level of inxociaation (sic)(intoxication) as established by the government analysists (sic) report, the evidence of his running and the fact that the area is not well lit, all contributed in some way to this accident."

4. The evidence before the coroner which was considered by the Tribunal included the following:

   17.Sergeant Long of Mudgee Police Station said in his statement of 23 April 1980 that his inquires showed that the Veteran was not a heavy drinker and is believed to have consumed about four middies of beer between 4pm and 5:30pm on the day of his death. Mr Peter Holland, an independent witness in his statement dated 18 April 1980 said that the Veteran walked across to the middle of the road and then started to run across the road and that was when the car hit him. He also said that the car was going at about 30 miles per hour. The driver of the car Mrs Pauline McCallum said in her statement dated 18 April 1980 that she was driving at no more than 30 to 35 miles per hour. Mr John Bulinski, the Veteran's son in law said that he had left the Veteran's address at about 7:40pm on Friday 18 April 1980 with his father in law and dropped him at the Court House on Market Street where he had to cross the street to go to the Hotel. He did not see the accident.

5. If this had been the only material before the Tribunal it would be difficult to conceive of an argument that the facts pointed to any conceivable hypothesis of the connection required between service and death.

6. The evidence, however, included the medical evidence referred to above.  The evidence of Dr Funnell can be put to one side.

7. The medical evidence began relevantly with Dr Burns.  The Tribunal recorded Dr Burns saying the following in his report of 19 July 2002:

   Persons with smoking-related chronic bronchitis lose the ciliary protective action against bacteria in their bronchial tree which becomes colonised with those bacteria. They are therefore more subject than non smokers to recurrent bronchitis and pneumonia. It is likely, in my opinion, that his chronic bronchitis condition predisposed him to developing pneumonia which declared itself several days before his death. There is no doubt that he had pneumonia because it was found at autopsy following his sudden death from the car accident.

   Page 53 of the documents you sent me contains a statement that, "according to his widow, on the day of the fatal accident the later veteran was suffering from a bout of pneumonia and he had left his bed to get a lift into town to purchase some wine for forthcoming visitors and to pay the rates". On page 54 she had said that "she went into his bedroom and found bloody tissues and she believes that he may have been coughing up blood". The pneumonia found at autopsy is more likely than not, in my opinion, to have been accompanied by fever. Fever itself is sometimes associated with mental confusion called delirium. It is quite likely that he had some confusion as the result of his pneumonia and that confusion was instrumental in his failing to see the car, the collision of which was to cause his death.

   Accordingly, therefore, it is likely, on the balance of probabilities, that he had chronic bronchitis and eventual pneumonia, which was a complication of his chronic bronchitis. His chronic bronchitis was due to cigarette smoking and I believe that his case satisfies Factor 5B. I believe his pneumonia was likely, on the balance of probabilities, to have had an affect in causing him to be unable to react appropriately to the threat of the oncoming car that hit and killed him.

   I have no evidence that he had a coughing fit. I believe therefore that his death was indirectly war-caused.
   [emphasis added]

8. The precise language of this report is important.  Dr Burns said that the pneumonia found at autopsy is more likely than not to have been accompanied by fever.  Importantly, however, he then said that fever itself is sometimes associated with mental confusion called delirium.  In the next sentence the word “sometimes” (meaning in ordinary parlance “on some occasions” or “now and then” or “at times” – see the Macquarie Dictionary) does not appear, and conclusions that it was “quite likely” that Mr Cameron had confusion as the result of the pneumonia, and that confusion was instrumental in his failing to see the car, appear.

9. As a matter of language and logic, it is far from clear how Dr Burns could say this unless the sentence emboldened and beginning “It is quite likely…” was an expression of view assuming Mr Cameron did have delirium or confusion, unless he was basing his conclusion on some unexpressed further premise, whether lay or medical.

10. Dr Breslin was supplied with Dr Burns’ first report.  In a passage cited by the Tribunal Dr Breslin said the following:

    I do not believe that a reasonable hypothesis can be made linking this man's death with his chronic bronchitis. There seems little doubt that he had chronic bronchitis but no objective evidence that it was causing dyspnoea. The pneumonia found at post mortem may have in fact been part due to contusion and there is absolutely no objective data whatsoever to support the theory that he had a fever at the time of the accident. What is absolutely certain is that at the time of the accident he had a high blood alcohol level. In view of his age and this blood alcohol level together with the conditions on the street at the time and his dark clothing there is a entirely logical explanation for the accident to have occurred. Suggesting that a fever impaired his judgment is fanciful and not consistent with any of the known facts apart from the fact that the post mortem reports pneumonia, which as mentioned above may have in fact been part contusion. No objective evidence is presented to indicate that he definitely had a fever. There is a complete explanation for the accident in that he was intoxicated and the conditions of the accident scene were such as to render him vulnerable. In order for a fever to cause significant mental impairment and confusion it would have to be very substantial and this is hardly the case in this man who was able to visit the hotel and drink to the point of intoxication. Somebody with a fever impairing their mental judgment could not be so inclined to drink heavily, particularly if they were not used to being a heavy alcohol drinker.

    In my opinion Mr Cameron’s bronchitis made no or only negligible contribution to his death. It is only conjecture whether his chronic bronchitis was sufficient to increase his risk of pneumonia but in any event I do not believe that the pneumonia contributed to his death in any way. No evidence for a fever is presented and the evidence would suggest that even if he had a fever it must have been mild and quite insufficient to have caused impairment of his judgment. Dr Burns' conclusions are not consistent with the Coronial records.

11. These views of Dr Breslin were given to Dr Burns for comment.  Dr Burns said the following:

    Thank you for your letter of 20 November 2002 to which was attached Professor Breslin's report and the inquest documents. I had not seen the letter before and I took note of the fact that Mr Cameron had an elevated blood alcohol level when he died. However, the autopsy report included the definite statement of current left-sided pneumonia. I note that Professor Breslin commented that what appeared to be pneumonia to the pathologist could have been actually a contused lung trauma. My comment is that although that is possible, I would have thought that a pathologist would be able to recognise the difference between pneumonia and contused lung.

    Mrs Cameron’s description of his respiratory illness prior to his death and the post-mortem report make me feel still that he did have pneumonia and that it is likely to have further clouded his consciousness which might have already been clouded to some extent by the alcohol.

    I believe that it is likely, therefore, that he did have pneumonia and that it contributed to his death in the way that I have previously stated despite the blood alcohol reading.

12. The Tribunal directed itself carefully to the authorities, referring to Bushell v Repatriation Commission (1992) 175 CLR 408, Byrnes v Repatriation Commission (1993) 177 CLR 564, East v Repatriation Commission (1987) 16 FCR 517 and Bull.

13. The Tribunal correctly identified that the word “reasonable” implied more than mere hypothesis.  The Tribunal must be taken to have understood from its citation of authority that it was not entitled, at this stage of the process, to find facts or reject material.

14. The Tribunal referred to the decision of Stone J in Elliott v Repatriation Commission (2002) 73 ALD 377 for the distinction between (impermissible) fact finding and (permissible) consideration and analysis of the material. The passage from her Honour’s reasons cited by the Tribunal is found at [25] and [26] of her Honour’s reasons:

    [25]I do not accept that this analysis of the material involved the Tribunal in illicit fact finding. In attempting to determine if the material before the Commission raises an hypothesis connecting the veteran’s condition with the particular service, and if any such hypothesis is reasonable, the Tribunal was required to consider and analyse that material. This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded.  A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis.

    [26]In this case the elements of the “cause of action”, that is essential elements of the hypothesis, could not be made out because, in the Tribunal’s opinion, the material did not give rise to an hypothesis connecting the applicant’s lumbar spondylosis with the condition of his knees. The only material before the Tribunal that allegedly raised a link between the two conditions was Professor Sambrook’s report and subsequent letter. The Tribunal did not accept this interpretation of the material but regarded the reference to such a link as purely speculative and, for reasons already described, not consistent with the relevant SoP. To the extent that malalignment of the knee joints was raised in the Professor’s report it was connected not with the applicant’s service but with a congenital condition that was independent of his operational service. The Tribunal was entitled to form this opinion on the material before it.

15. The previous paragraph of her Honour’s reasons puts the medical evidence there (of Professor Sambrook) into context:

    [24]The point is that Professor Sambrook’s initial report postulated that the applicant’s lumbar spondylosis might have led to malalignment of the knees.  For this to be a reasonable hypothesis however, the material would need to point to some asymmetry, whether by way of evidence of an altered gait or radiological evidence of differential deterioration in the knees. In his letter of 1 February 2001, Professor Sambrook refers to finding such evidence in Dr Davison’s report.  But although Dr Davison’s report refers to the condition of the right knee being more severe than that of the left, it attributes this, not to the accepted condition of lumbar spondylosis, but to the degree of genu varum being more marked on the right side. Although the material raises the possibility of asymmetry it relates that asymmetry not to the accepted condition of lumbar spondylosis injury but to the congenital condition of genu varum. Professor Sambrook himself had rejected genus varum as a cause of the applicant’s knee condition saying that “it should be considered secondary to the arthritis not causative.

16. Professor Sambrook had stated the following in his report of 1 February 2001:

    the report of Dr Davison … notes that the degree of genu varum was more marked on the right as was the restriction of movement so that although osteoarthritis was present in both knees, her joint replacement was indicated on the right side because it was more advanced there.

    In other words, this indicates some asymmetry which … makes the hypothesis of malalignment related to altered gait much more likely. 

17. The assessment and analysis of these views in Elliott could, on one view, be undertaken without effective rejection of Dr Sambrook’s views.

18. Here, the Tribunal was faced with a medical opinion of the likelihood of facts which was the hypothesis itself.

19. The Tribunal’s reasons are contained in [39] to [43], as follows:

    39.It could not be said that the "most likely explanation" (McLean, supra) for the Veteran being struck by the vehicle is the symptoms of his pneumonia. There is no material, other than the assertion of Dr Burns, that points to the Veteran being confused or delirious. Indeed there is a body of material that points away from it. The Inquest into his death concluded that there were a number of other reasons for him having been struck by the vehicle including his level of intoxication, his dark clothing and the poorly lit street. This alone, however, does not prevent the hypothesis from being found to be reasonable.

    40.However, it should be noted that two witnesses to the inquest have the Veteran running across the road, presumably after he saw the vehicle. Most notably, the Veteran had, notwithstanding his illness, left his home on three occasions that day: first, on foot for about one hour, to attend to an errand; second, again on foot, to consume an amount of alcohol over approximately one and a half hours sufficient to give him, after a lapse of more than two hours, a blood alcohol reading of 0.2 percent and: third, to attend the hotel again, and presumably to return on foot, in order to purchase more alcohol. Commonsense informs that a man with a fever sufficient to cause confusion or delirium would not undertake these activities and nor would he be inclined, as a normally moderate drinker, to consume an amount of alcohol sufficient to give him a reading of 0.2 per cent. The Tribunal also notes the opinion of Dr Breslin that "(i) n order for a fever to cause significant mental impairment and confusion it would have to be very substantial and this is hardly the case in this man who was able to visit the hotel and drink to the point of intoxication. Somebody with a fever impairing their mental judgment could not be so inclined to drink heavily, particularly if they were not used to being a heavy alcohol drinker".

    41.While the Applicant's evidence was that she found bloodstained tissues in the Veteran's room after his death, this does not point to the Veteran suffering from confusion or delirium at the time of his death and could indicate, given the material in Black's Medical Dictionary, that he was in the later stage of pneumonia.

    42.Having considered the whole of the material before it, the Tribunal is of the view that there is no material pointing to the Veteran having had, on the day of his death, fever, confusion or delirium of a degree sufficient to impact on his ability to avoid an oncoming vehicle. Rather, there is material before the Tribunal which points to the Veteran being sufficiently well to leave his home on three occasions, twice on foot, and to consume enough alcohol to produce a blood alcohol reading of 0.2 per cent.

    43.In these circumstances, the Tribunal considers that the material before it is neither consistent with the suggestion that the Veteran was suffering from a fever sufficient to produce delirium or confusion, nor allows that to be assumed. It follows that the hypothesis is not, pursuant to section 120(3) of the Act, reasonable. In the absence of a reasonable hypothesis, the Applicant's death cannot be found to be war caused.

20. The conclusion in [42] that there was no “material” pointing to Mr Cameron having had a fever, confusion or delirium on the day of his death was said by the applicant to ignore, set aside or reject (impermissibly)  Dr Burns’ views about that very matter.  The contents of [39] are said to reflect that rejection of Dr Burns.  The argument of the applicant is that simple.

21. The respondent accepts that the assessment of the existence or not of the reasonable hypothesis must be conducted on all the evidence and emphasises that that assessment cannot be usurped by an opinion of a doctor in the context of primary material silent on the relevant connection.  The respondent submitted that the Tribunal, mentally armed with the correct authorities and expressed principles (about which there was no debate):

    …formed the opinion, by reference to all of the material, that none of the evidence pointed to the veteran suffering from confusion or delirium at the time of his death and that, rather, the material pointed to the veteran having been sufficiently well to leave his home on three occasions on that day.  Thus, as a matter of fact, the AAT did not find the hypothesis a “reasonable hypothesis” pursuant to s 120(3).  In the words used in Bull:

    “Here the Tribunal, on the matter before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material.”

    …

    In the context of the reasons for the decision as a whole, particularly paragraphs 39 and 40, paragraph 42 may be read for what it is – the opinion reached by the [Tribunal] under s 120(3) that, having had regard to the whole of the evidence including that of Dr Burns, and also the wealth of other material available to the [Tribunal] about the late veteran’s condition on the day of his death, a reasonable hypothesis connecting the death with service was not raised.

1. The dividing line between impermissible fact finding and permissible (indeed mandated) assessment of all the material, weighing it and concluding whether or not, as a whole, it points to the posited reasonable hypothesis, is not necessarily easy.  The characterisation of Dr Burns’ views as assertions may be seen to be part of this weighing process of all the material.  On the other hand, there is force in the applicant’s submissions that if the medical opinion is, in terms, in accordance with the hypothesis, to conclude that the hypothesis is unreasonable involves a finding that the medical opinion is without basis. I have not found this distinction easy to resolve.

2. Assistance, however, is to be obtained from an appreciation of the approach of the Full Court in Repatriation Commission v Bey (1997) 79 FCR 364. That case concerned a veteran who had contracted rheumatoid arthritis which he contended was linked with his service in Vietnam. One doctor, an orthopaedic surgeon, Mr Hadley, gave evidence. The following appears at 368 about Mr Hadley’s evidence:

   Mr Hugh Hadley, an orthopaedic surgeon, gave evidence for the respondent.  He submitted a report in which he notes other practitioner’s views about the cause of the respondent’s disease, but expresses no opinion of his own.  In the course of cross-examination he was asked whether it was his hypothesis that the physical strains placed on the respondent’s body in Vietnam contributed to the development of the arthritis.  His reply was that he was an orthopaedic surgeon and not a rheumatologist.  Asked about the final paragraph of Dr Mackay’s first report, he said:

   “I think that basically what he is trying to say is that he can’t be sure but it is a reasonable hypothesis that his symptoms could have begun due to his service in Vietnam.”

   A member of the Tribunal suggested to him that Dr Mackay’s report did not contain any opinion about a causal relationship between the symptoms and the service.  Mr Hadley then re-read the paragraph and said:

   “I gather from that that he feels that it is a reasonable hypothesis that his Army service has played a part in the onset of the symptoms due to rheumatoid arthritis.”

   Mr Hadley was asked whether, if Dr Mackay was not suggesting a causal link, he was “prepared to go further” than Dr Mackay.  He said he was, and that the service could have initiated or aggravated the arthritis.  He gave no reasons for this opinion.

3. The discussion of the treatment of the evidence by the Tribunal in Bey reveals a greater degree of discussion of Mr Hadley’s evidence that of Dr Burns’ evidence here.  (That is not said critically of the Tribunal here.)  The Court (RD Nicholson J later agreeing with the reasons of Northrop, Sundberg, Marshall and Merkel JJ) said the following:

   The Tribunal was of the opinion that the evidence raised a hypothesis that the respondent’s physical work and sporting activities in Vietnam caused or contributed to the contracting of his rheumatoid arthritis.  It said that the question was whether that hypothesis was reasonable.  The Tribunal noted that Mr Hadley, who had advanced the hypothesis, had misinterpreted what Dr Mackay had written, and that he had given no reason for his opinion that there was a causative link between the respondent’s physical work and sporting activities in Vietnam and the contracting of the disease.  This opinion had not been advanced in his written report, but only in cross-examination.  The Tribunal noted that there was no evidence of any body of medical opinion to support Mr Hadley’s hypothesis which, it said, “lacked the hallmarks of a properly considered opinion”.  The Tribunal said that Mr Hadley’s “demeanour was more that of an advocate than that of a professional witness”. It observed that there was no evidence that the onset of the disease is, “as a matter of common or uncommon experience”, accompanied by or associated with the type of intense physical activities in which the respondent was engaged in Vietnam. The Tribunal did not consider Mr Hadley “eminent in the relevant field of knowledge”, and regarded his hypothesis as “too tenuous to be regarded as reasonable”.

   Putting aside Mr Hadley’s evidence, the other evidence did not, in the Tribunal’s view, raise any hypothesis connecting the respondent’s rheumatoid arthritis with any of the matters in s 9(1)(a), (b) or (d), or the “contributed to” part of par (e).  The Tribunal dealt separately with the “aggravated by” part of par (e).  It observed that it was not necessary that the condition be aggravated by war service to a material degree so long as it was “made worse”.  It noted that a temporary worsening of symptoms may occur without any aggravation of the underlying disease.  It found that none of the medical witnesses suggested that the respondent’s arthritis, if he had contracted it by the time he left Vietnam, became worse because of his service there.  The Tribunal was unable to form any view as to when the respondent may have contracted the arthritis, and in particular whether he contracted it before or during his service in Vietnam.

   The Tribunal’s conclusion, “after consideration of the whole of the evidence”, was that it did not raise a reasonable hypothesis connecting the respondent’s disease with the circumstances of his service, and that it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that the disease was war-caused.

4. The Court concluded at 373:

   Whether material raises a “reasonable hypothesis” for the purposes of s 120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable:  Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the Tribunal was entitled to discard Mr Hadley’s evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put forward material which pointed to the hypothesis advanced by the respondent.  Neither went further than to say that the suggested cause of the disease was a possibility.  Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that.  In our view the Tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent’s rheumatoid arthritis with his war service.

5. What I take the Full Court to be referring to is the legitimate, indeed mandatory, task of the Tribunal weighing all the evidence and coming to a factual conclusion as to the reasonableness or otherwise of the hypothesis.  That process is one for the Tribunal.

6. The applicant must say that whatever the factual background, however tenuous and otherwise unsupported a medical opinion might be, to conclude in the face of an opinion such as that of Dr Burns that there is no reasonable hypothesis, is to fact find.

7. I do not agree.  The characterisation of Dr Burns’ evidence as “assertion” was, I think, a polite way of stating a conclusion about the report according to its own terms.  The reading, appreciation, understanding and characterisation of Dr Burns’ views were part of taking into account all the evidence, including his report.  That, I think, is what the Tribunal did. It reached a view on all the material that there was no relevant reasonable hypothesis.

8. The respondent’s written submissions put the matter correctly, in my view, as follows:

   32.The whole of the material before the AAT manifestly supports the contention that the opinion reached was proper in law and one reasonably open.

   a.    An essential part of the hypothesis was that the veteran suffered from pneumonia caused by war-caused chronic bronchitis, which induced in the veteran a state of fever and consequent delirium and confusion which rendered the veteran unable to protect himself from the oncoming vehicle.

   b.    On the day of his death, the veteran walked up to the Council offices and paid the rates taking about an hour.  Thereafter, he returned home and spent some time lying down reading the paper.  (Decision, paragraph 11.)

   c.    At about 4.00 pm, the veteran again left his house and walked a few blocks to the Courthouse Hotel and had a couple of beers with his son and walked back.  (Decision, paragraph 11.)

   d.    Later on the same day or evening, he was picked up by his daughter and son in law and again went to the Courthouse Hotel to purchase some wine for some visitors.  (Decision, paragraph 11.)

   e.    The autopsy revealed that the veteran had a blood alcohol level of 0.2 g of alcohol per 100 ml of blood.  (Decision, paragraph 15.)

   f.   The Inquest documents disclosed that the veteran was wearing dark clothing, and apparently, was running across the road (from the middle of the road on) at the time he was hit by the car. (Decision, paragraphs 16 & 17.)

   g.    Dr Burns’ evidence was that pneumonia is “sometimes” associated with mental confusion called delirium and that, in his opinion, “it is quite likely that [the late veteran] had some confusion as the result of his pneumonia and that confusion was instrumental in his failing to see the car”.  Dr Burns did not refer to any evidence that the veteran, in fact, was suffering from a fever, or a fever sufficient to induce any form of confusion or delirium; there was no such evidence.  The Tribunal also had before it a report of Professor Breslin dated 11 November 2002 to the effect that for a fever to cause significant mental impairment and confusion, it would have to be very substantial, which was “hardly the case in this man who was able to visit the hotel and drink to the point of intoxication”.  (Decision, paragraph 18.)

9. Taking into account Dr Burns’ assertion, logically unconnected as it was to its premises (as he expressed it), the Tribunal was entitled, in assessing all the material, to conclude as it did.

10. I am indebted to counsel and solicitors for their careful and thoughtful submissions in a case which, I think, illuminates with some starkness, the logical and linguistic difficulties of the operation of s120(3) of the Act

11. The application should be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            21 November 2003

Counsel for the Applicant:	Mr M Vincent
Solicitor for the Applicant:	Dibbs Barker Gosling
Counsel for the Respondent:	Mr N Williams SC Ms J Jagot
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 May 2003
Date of Judgment:	21 November 2003