Davis and Repatriation Commission (Veterans' entitlements)
[2017] AATA 816
•5 June 2017
Davis and Repatriation Commission (Veterans' entitlements) [2017] AATA 816 (5 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/1871
Re:Ruth Davis
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:05 June 2017
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution determines that the death of the late veteran, Joseph Davis, was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.
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Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – war widow pension – Second World War veteran – Deledio test – Statement of Principles – where Veteran died in a pedestrian-vehicle traffic accident – kind of death – whether kind of death related to the Veteran’s osteoarthritis – whether osteoarthritis was war-related – hypothesis – whether Veteran’s death was causally related to his osteoarthritis - the decision under review is set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986, ss 8, 13, 120, 120A
CASES
Blain v Repatriation Commission [2017] FCA 114
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280
Deledio v Repatriation Commision
(1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 29 AAR 235East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission [2002] FCA 26; 73 ALD 377
Forrester v Repatriation Commission [2003] FCA 898
Hill v Repatriation Commission (1985) 85 ALD 1
Kattenberg v Repatriation Commission
[2002] FCA 412; 73 ALD 365
Knight v Repatriation Commission [2010] FCA 1134McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Bey
(1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877; 95 ALD 619Repatriation Commission v Deledio
(1998) 83 FCR 82
Repatriation Commission v Webb [1998] FCA 1411; 51 ALD 575
Vietnam Veteran’s Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 4SECONDARY MATERIALS
Statement of Principles No 13 of 2010
REASONS FOR DECISION
Senior Member J Sosso
05 June 2017
INTRODUCTION
Mrs Ruth Davis (the Applicant) seeks a review of a decision of the Veterans’ Review Board which determined that the death of her husband, Mr Joseph Davis (the veteran), was not related to his war service and that, accordingly, a war widow’s pension was not payable – Exhibit 1 T2 B2. The Board upheld a decision of the Repatriation Commission (the Respondent) dated 26 February 2015 – Exhibit 1 T7 p. 34.
The veteran was born in August 1923 and grew up in rural New South Wales. Prior to enlisting he worked on rural properties around Leeton as a farm labourer. The Applicant states that he worked on farms that grew fruit for the local cannery. She states that the veteran picked fruit and engaged in general labouring, which entailed heavy manual work. For twelve months he also worked on a rice farm, which requiring lifting heavy bags of rice – Exhibit 3 para 2.
The Applicant met the veteran when she was a teenager and prior to the veteran enlisting. They exchanged letters while he was posted outside of Australia and were married in November 1943 – Transcript p.16.
The veteran served in the Australian Imperial Force (AIF) during the Second World War from 16 December 1941 until 26 February 1946.
The veteran served in the infantry (36th Infantry Battalion) in Papua New Guinea (PNG) between 1942 and 1944. The veteran’s Service and Causality Form discloses that he disembarked at Port Moresby on 7 June 1942 and remained in PNG until 8 December 1942. He again served in PNG between 7 July 1943 and 23 October 1943. His final tour of duty in PNG was between 27 December 1943 and 25 May 1944 – Exhibit 1 T3 pp. 1-3.
The 36th Battalion saw active duty against the Japanese Army during the Kokoda Campaign, the Beachhead Battles around Sanananda and later in the campaign on New Britain – Exhibit 6 p. 3. The veteran did not participate in either the Sanananda or New Britain campaigns.
When the 36th Battalion first arrived in Port Moresby in mid-1942 it was given two primary tasks. The first was to defend the coast at Bootless Inlet to the east of Port Moresby against a potential Japanese landing. The second was to provide work parties to unload ships and perform labouring tasks – Exhibit 6 p. 3.
Stan and Les Brigg in their history of the Battalion provide this description of the labouring tasks required of the men of the Battalion – Exhibit 6 Annexure E:
“Continuous demands were made for working parties to unload ships at Port Moresby and on 16th June some 160 men, in charge of Captain Stan Powers, were on these duties…
Japanese bombers came over almost every day. They usually arrived about midday and upset the meal schedule…
The troops had been instructed that as soon as the air-raid alarm sounded they were to scatter away from the target area of the town and wharf, and remain out of the area until the “all clear” was signalled on the “hooter”. Because of the disruption these raids caused to port activities and the urgent need to unload ships quickly. The men employed on these duties carried out their work in a conscientious manner, working at high speed through the days and nights to unload essential war supplies. The continuity of their activity was broken only during the air-raid periods.”
On 10 September 1942 the 36th Battalion was ordered to provide a composite company to form a temporary organisation called “Honner Force”. It is contended by the Applicant that the veteran was amongst those forming part of this company – Exhibit 6 p. 5. Having regard to the evidence before the Tribunal, I find that the veteran did form part of this company. Stan and Les Brigg provide information about the tasks required of this company (Exhibit 6 Annexures K-L):
“Orders were received on 10th September for the 36th Battalion to supply a composite company to form part of a group known as “Honner Force”. Commanded by Lieut-Colonel R. Honner, the force (500 strong) was formed of a company from each of the 36th, 49th and 55th Battalions and elements of the 2/16th Independent Company. Its task was to advance eastward up the Goldie River Valley, blocking any Japanese move towards Port Moresby along that route; and to cut the enemy line on the Kokoda Track between Nauro and Menari.
The 36th Battalion company was hastily formed – some troops being withdrawn from their wharf duties for the purpose… Plans to supply Honner Force by means of packhorses and air drops could not be realised on account of the rough country in which it was to operate and the force’s task was made difficult by its having to carry all supplies from the outset…”
In July 1943 the 36th Battalion was deployed to Dobodura on the north coast of PNG which was a major Allied base. The task of the 36th Battalion was to provide for the defence of the area in case of enemy raids. In addition, the men of the Battalion again were required to undertake stevedoring tasks by unloading ships and participating in work parties – Exhibit 6 p. 6.
Dr Palazzo provided historical information about the weight carried by AIF soldiers serving in PNG during the Second World War. In 1942 during the Kokoda Campaign the load varied from 20.45 to 25 kg, but in 1943 increased to between 27 and 45 kg. Dr Palazzo made the following observations – Exhibit 7 pp. 3-4:
“terrain and environmental conditions are as important in determining the potential for injury to a soldier’s knee as is the weight of what is being carried. In New Guinea, the effect on the body of carrying even modest loads is magnified by the terrain and environment. Davis spent 541 days in New Guinea. The weight of what he carried on a daily basis and for how long is impossible to ascertain. As an infantryman he would have gone on many multi-day patrols bringing what he needed with him on his back, strapped to his chest and carried in his arms. It is also evident that he would have done so over some of the most terrible terrain experience by soldiers in the war, in conditions of heat, cold, wet and humidity, factors that would have greatly increased the effective load of what he carried. Even a modest load would have had a magnified effect on Davis’s body and limbs.”
Dr Palazzo also described the nature of the stevedoring tasks required of the men of the 36th Battalion at Port Moresby – Exhibit 7 p. 5:
“The nature of this labour does require some explanation. This was not an easy task. The harbour facility at Port Moresby is best described as primitive. There was a wharf, but no mechanical handling equipment. The wharf was also too weak to support a truck. The men, therefore, had to manually unload the ship, manhandle the stores down the wharf to the shore, lift them up onto a truck, and then once at the depot unload the truck and stack the stores. Virtually everything the soldiers needed in New Guinea came by boat. Ordnance, airplane bombs, food, industrial size sacks of flour, ammunition and everything else needed by an industrial age army had to be unloaded at Port Moresby. This must have been an exhausting and repetitive task. I cannot state with any degree of accuracy how many times Davis would have lifted a crate or bale, but it must have been a significant number.”
It was during the veteran’s last tour of duty that he was diagnosed with a chronic case of eczema of the ankles. After six months of unsuccessful treatment he was downgraded to a Category “B” which meant he was unfit for service outside of Australia. He returned to Australia, where he remained until his demobilisation – Exhibit 6 p. 7.
The material presented to the Tribunal does not present a conclusive picture about what duties the veteran was engaged in at particular periods of time whilst serving in PNG. This is not surprising. It has long been recognised that during the First and Second World Wars, service records were not always kept up to date, or indeed retained at all. This is why the Courts have given a beneficial interpretation to claims. The task of satisfying the Commission, the Tribunal or the Federal Court of events clouded in the mists of time and with written records either hard to locate, lost or never prepared in the first place, is a considerable one. In these circumstances, a common sense and fair approach is required.
Of the veteran’s 1228 days of service in the Army, 541 were spent in PNG.
The veteran’s Medical History Sheet which was completed in December 1941 discloses that he was at that time in good health with no ailments or injuries and being recorded – Exhibit 1 T4 pp. 9-10.
His Medical Record Prior to Discharge, which is dated 4 February 1946 records the only disability he suffered whilst enlisted was dermatitis which was contracted when he served in Buna in 1943 – Exhibit 1 T4 p. 11.
It is not contested that the whole of the veteran’s service was eligible war service including operational service.
The veteran’s daughter, Marilyn Horneman, provided a Statement in which she recounted conversations she had with her father about his wartime experiences – Exhibit 4 para 6:
“One of those experiences was how he came to injure his right knee. He talked about having to walk through the jungle where the terrain was very difficult, having to climb in and out of trenches and also how he used to fly in low-flying aircraft delivering supplies to ground troops, using his legs to kick the boxes of food out of the aircraft. During this conversation, he said in words to this effect that during his time in New Guinea: “his leg would play up on him.” He was referring to his right leg.”
The veteran’s son, Raymond Davis, also provided a statement, in which he stated – Exhibit 5 para 3:
“I recall that my father attributed his leg injury to the rugged terrain over which he had to walk during his military service in New Guinea. He talked about how it was always wet which made the terrain even more difficult to walk over.”
Both Ms Horneman and Mr Davis gave oral evidence and during evidence in chief and during cross-examination re-iterated the evidence outlined above.
The Applicant states that after his discharge the veteran worked as a barman in hotels before eventually being employed by the Leeton RSL, first as barman and later as a greens keeper – Exhibit 2 para 3.
According to the Applicant the veteran suffered from both hearing problems as well as a bad knee (Exhibit 2 para 4):
“Joe sustained a right knee injury while he was in the Army. I don’t know how it occurred but I suspect it was from climbing hills in the Army and carrying heavy packs. He was in the Infantry as part of the 36 Battalion and served in operations against the Japanese in New Guinea. Joe’s knee began to affect him more about 5 or 6 years after he returned from overseas. His knee used to swell up. In 1958, he underwent surgery on his knee and it improved for a while. Eventually his knee became worse again and I recall that he began limping several years before he retired. He used to wear knee guards all the time. His knee would give him problems when he was working which resulted in a few falls. After 32 years of working in the RSL, he retired aged 60 due to his knee.”
It is the Applicant’s understanding that the veteran’s 1958 operation was performed at Leeton and was to remove cartilage from his knee. Subsequently she believes he developed osteoarthritis in his knee – Exhibit 3 para 5.
The Applicant also stated that the veteran’s right knee would “lock up” almost every week and he would fall down. Shortly before his death, the veteran suffered another fall and he injured his left knee. The Applicant provided the following information in her first Statement – Exhibit 2 paras 6-8:
“6. In retirement Joe’s right knee would lock up almost every week. When his knee locked, he would fall down as it gave way. There was a bone that seemed to stick out which may have been because they removed the cartilage in his knee when he had surgery in 1958. Sometimes, he would fall over in the yard. He would often fall as he tried to turn around by putting weight on his right leg. I had steps put in a few months before his death so Joe could walk up the driveway safely. The driveway was quite steep and, without the steps, he struggled to walk up to the front door, which is at the top of the driveway.
7. Joe would always favour his right leg, so he put more pressure on his left knee. He used to wear thongs on his feet and I have kept one of his left foot thongs which has been worn down to almost nothing because of the additional pressure placed on his left lower limbs.
8. Only a short time before his death, Joe suffered another fall which was caused by trying to turn and putting weight on his right knee. It happened in the backyard and he badly injured his left knee. He wouldn’t seek medical attention for about four days but it got so bad that I convinced him to go down to see Dr Fordyce, his GP. Dr Fordyce recommended that he attend the Outpatient Section of the QE2 Hospital. I obtained a letter from Dr Fordyce and I took my husband down there myself as he did not want to travel by ambulance. He was treated at QE2 Hospital and for some time afterwards, a nurse would visit him at home to change the dressings. It was a significant injury. This meant that when Joe walked, he was required to put more weight on his right knee and this caused him serious problems with his mobility and his stability. Joe was still suffering from his left knee injury at the time of his death.”
During the course of the Applicant’s evidence a pair of thongs worn by the veteran were tendered as Exhibit 10. The thong for the left foot was, as suggested in the Applicant’s statement, in parts almost worn away. The thong for the right foot, meanwhile, was substantially less worn. It suggested that the veteran, as stated by the Applicant, had a difficulty with his right leg and most of his body weight was focused on his left leg.
On 13 December 2013 while attempting to cross Mains Road Runcorn, the veteran was struck and killed by a motor vehicle. The veteran’s Death Certificate states that the cause of death was “multiple injuries” – Exhibit 1 T6 p.24.
The Tribunal was provided a copy of the coronial inquest into the accident – Exhibit 1 T6 pp 29-33. The inquest was conducted by Ms Christine Clements who was the Brisbane Coroner.
In the coronial report, her Honour noted that the fatal accident occurred at approximately 5 o’clock on the morning of 13 December 2013. Mains Road, where the accident occurred, is a six lane thoroughfare with a median strip in the middle. The speed limit at the location of the incident was 60km/h. CCTV imaging through traffic cameras at a nearby service station was assessed at less than 70 metres. The veteran walked most mornings from his home to this service station to purchase the daily newspaper.
The coronial report suggests that the veteran, at a time in the early morning with restricted visibility, either underestimated the distance to the median strip or the time it would take him to move out of harm’s way, or both. It would appear from the evidence given to the Coroner that the veteran hesitated not deciding what to. As it transpired he decided to seek safety in the median strip and was struck by a four-wheel drive vehicle with a bull bar in the right-hand lane. His injuries were severe, and despite expert medical care died approximately eight hours after the accident.
Witnesses who provided evidence to the Coroner suggest that the veteran was in the left‑hand lane initially and moved into the middle lane either to move to the safety of the median strip or to avoid a motor vehicle which was moving most quickly in that lane of traffic.
The Tribunal had the benefit of receiving evidence from a witness to the fatal accident, Ms Rhiannon McCathie.
Ms McCathie testified that she was driving north along Mains Road at approximately 60 km/h in the left hand lane through Sunnybank and she described the weather conditions as being mostly fine but “a little bit cloudy”. She first saw the veteran 30 to 40 metres distant in the middle lane when he was stationary. She described the veteran attempting to move to the far-right lane but he “seemed quite slow and a little bit unsteady”. She then testified: “As he stepped across into the far right lane he disappeared under the large four-wheel drive” – Transcript pp. 35 – 36.
The hypothesis relied upon by the Applicant (Applicant’s Outline of Submissions (AOS) para 5) is that:
(a)The veteran suffered war-caused osteoarthritis of the right knee and hearing loss; and
(b)These conditions, especially the right knee condition, contributed to him being hit by a motor vehicle which caused the injuries that resulted in his death.
The Respondent contends (Respondent’s Outline of Submissions (ROS) para 6) a reasonable hypothesis has not been raised connecting the circumstances of the veteran’s war service and his death.
A hearing was convened on 8 May 2017. The Applicant was represented by Mr A Harding of Counsel, instructed by T O’Connor Solicitors. The Respondent was represented by Mr B Williams.
The Applicant appeared and gave evidence as did her children, Ms Marilyn Horneman and Mr Raymond Davis. Further evidence was also given by Ms Rhiannon McCathie, Mr Albert Palazzo and Mr Robin Orr.
THE RELEVANT LAW
Section 13 of the Veterans’ Entitlements Act 1986 (the Act) provides, inter alia, that when the death of a veteran was war-caused the Commonwealth is liable to pay a pension to the dependants of the veteran.
The death of a veteran is “war-caused” if it arose out of, or was attributable to, any eligible war service rendered by the veteran – s 8(1).
There are specific provisions in the Act facilitating proof of the relationship between (in this instance) death and war service.
Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Repatriation Commission shall determine that the death was war-caused, unless it is satisfied, beyond reasonable doubt, that there is not sufficient ground for making that determination.
Subsection 120(3) then goes on to provide that in applying s 120(1) in respect of the death of a veteran, in relation to service rendered by the veteran, the Commission shall be satisfied, beyond reasonable doubt, that there is no reasonable ground for determining that the death was war-caused, if the material before the Commission does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
In addition, s 120A(3) provides that, for the purpose of s 120(3), an hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) that upholds the hypothesis.
The steps required in making the decision mandated by ss 8, 13 and 120 as to whether a death is “war-caused” are explained by in Repatriation Commission v Deledio (1998) 83 FCR 82 (‘Deledio’) at 97-98 as further refined and explained in Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280 (‘Collins’).
In Deledio Beaumont, Hill and O’Connor JJ outlined the methodology to be adopted by the Tribunal in a matter such as this (97-98):
“1. 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.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)…
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
As helpful as the above methodology is, the Tribunal is not required to proceed step by step through the steps outlined in a mechanistic manner, nor does this methodology have a life of its own and operate as a substitute for compliance with the relevant provisions of the Act – Hill v Repatriation Commission (1985) 85 ALD 1 at 16-17.
In Collins, Mansfield, Stone and Edmonds JJ outlined the antecedent inquiries required of the Tribunal before adopting the Deledio methodology ([18], [20]/284-285):
“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:
1whether the claimant was a veteran, or a dependant of a deceased veteran;
2whether the veteran has suffered an injury or disease or has died…; and
3the… cause of death or the ‘kind of death’ of the veteran…
those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker...”
CONSIDERATION
Preliminary Issues
Before applying the Deledio methodology it is first necessary to deal with any anterior or threshold issues.
It is not contested that the Applicant is the widow of the deceased veteran and that the veteran rendered eligible war service, including operational service, for the time he was enlisted.
It is also not contested that the veteran was struck and fatally injured by a motor vehicle whilst attempting to cross Mains Road Runcorn on 13 December 2013.
The next issue is the cause of death.
In Collins, the Full Court made the following observations – [47]:
“ 47. the ‘kind of death’ in terms of s 120A(2) and (4) is also one which refers to the medical cause or causes of death…The decision about the ‘kind of death’ is also not made by applying s 120 or s 120A or any Statement of Principles under s 196B(2) of the VE Act. It is made independently of them. Once it is made, then for the purpose of deciding whether the ‘kind of death’ is war-caused, in accordance with the Deledio principles, those provisions and any relevant Statement of Principles are to be applied.”
A decision of particular relevance and assistance in this context is Repatriation Commission v Codd [2007] FCA 877; 95 ALD 619 (‘Codd’).
In that matter the Applicant was the widow of a veteran who served in the Australian Army from 1942 – 1946. In 1968 the veteran was killed when the truck he was driving was struck by a train at a level crossing. The Tribunal found that the ‘kind of death’ was death by road accident. This was despite the Tribunal finding that the veteran had a drinking problem, and the effects of alcohol consumption were likely to impacted on the veteran’s concentration and contributed to the accident.
As there was no SoP which applied, the Tribunal applied the law prevailing before the introduction of SoPs.
Gordon J made the following observations [31]-[40]:
“31 The phrase ‘kind of death met by the person’ in s120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context…
35 What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
36 The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that death was war-caused and that the cause or at least one the causes of death, was the veteran’s ‘service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal collision’…
39 On the proper construction of the VE Act, consistent with its evident statutory purpose and existing authority, the ‘kind of death met by the [veteran]’ that is to be considered is the question of medical causation or the kind of death, being a medical cause of death, including the contributing or underlying medical cause of death.
40 In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.”
Applying Codd in this matter, it would be an error to find that the kind of death met by the veteran was death by road accident. Rather, the evidence presented leads to a finding, on the balance of probabilities, that the cause of death was the veteran’s right knee condition which deleteriously impacted his mobility and contributed to him being fatally injured.
Both the Veteran’s Review Board (Exhibit 1 T2 B5) and Mr Williams (ROS paras 20 and 21) have approached this matter on the basis that the kind of death was injuries resulting from a motor vehicle accident. In both instances they then proceeded on the assumption that there was not an applicable SoP. The Tribunal is required, however, to follow very clear Federal Court authority, namely Codd, which as outlined above focuses on the operative cause of death, not the final stage in the process of dying.
Deledio Methodology
Introduction
The hypothesis advanced by Mr Harding on behalf of the Applicant has two limbs. The first limb is that the veteran suffered war-caused conditions of osteoarthritis of the right knee and hearing loss. The second limb is these conditions, in particular the right knee condition, contributed to the fatal motor vehicle accident. Each limb with be considered separately.
Before dealing with the first limb, it is important to note that there is almost no evidence before the Tribunal on the veteran’s hearing deficiency other than the fact he had one. Any reading of the material would disclose that there is no material linking his hearing problems to his war-service. Nor, for that matter, is there any clear evidence as to how his hearing problems played any part in the veteran being struck by a motor vehicle. In short, the contention that the veteran’s hearing loss was war-caused has no evidentiary base. Accordingly, the analysis of the first limb of the hypothesis focuses on the Applicant’s right knee condition.
In applying the Deledio methodology in the context of a hypothesis with two limbs each of which raises discrete questions, but which cumulatively result in an inextricably intertwined overall hypothesis, it is necessary to separately analyse each limb. In Repatriation Commission v Webb [1998] FCA 1411; 51 ALD 575, Tamberlin, Finn and Marshall JJ said (10 – 11/582 - 583):
“…the overall hypothesis was considered by the AAT to have three parts; namely, smoking caused by war service; smoking causing NHL, and NHL being the cause of death. Because it is common ground that the smoking was caused by war service, it is only the two remaining parts of the hypothesis that require consideration. The AAT accepted that the expert pathologists’ view that a malignancy diagnosis as to the cause of death was unlikely, was not sufficient to render the overall hypothesis unreasonable. Its conclusion, however, indicates that the conflicting evidence was considered to cast doubt on the overall hypothesis to such an extent that it had the effect of rendering the overall hypothesis unreasonable.
In our view, this is not the approach required by the authorities. The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or the hypothesis as a whole. In the present case, each sequence of the overall hypothesis raises a discrete question. What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable. If this is so then the overall hypothesis may be considered reasonable. The AAT did not do this.”
First Limb
The first step in the Deledio methodology is aimed at ensuring the proper application of s 120(3) of the Act.
A helpful explanation of the task required of the Tribunal was provided by Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 (‘Bushell’). Their Honours said (413 – 414):
“…s120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3)… is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis…
The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true…”
Accordingly, the Tribunal first considers all of the material before it and determines whether that material points to a hypothesis connecting the veteran’s death to the circumstances of his war service. No fact finding arises at this point of the inquiry.
It is helpful to refer to McLean v Repatriation Commission [2001] FCA 243 (‘McLean’) which provides guidance on the correct approach to be adopted by the Tribunal at this stage of the inquiry.
The veteran in that case served in the RAAF in the Second World War. He was killed in an accident in 1953 aged 39 years. He was felling trees on a hillside with two other men. One of his companions cut down a large tree which when it fell dislodged a rock which struck the veteran and killed him. It was contended that the veteran suffered from a bad back condition which arose from his war service which restricted his mobility and therefore contributed to his death.
In dealing with the first step Tamberlin J said [23] – [24]:
“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 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 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 there was no hypothesis raised I consider that it erred in applying too high a standard in respect of what is a low threshold of proof.”
The hypothesis advanced by the Applicant is clearly a possible explanation for the cause of death of the veteran. It is available from the following facts that arise from the uncontested material presented:
(a)The veteran was a farm labourer before his enlistment;
(b)He served in the Australian Army between 1941 and 1946;
(c)He served in PNG on three tours of duty between 1942-1944;
(d)His Battalion provided stevedoring, labouring and construction services for the Army;
(e)His Battalion was engaged in action against the Japanese Army requiring walking long distances in mountainous, wet, jungle conditions carrying heavy packs;
(f)The veteran did not return to labouring duties after leaving the Army;
(g)After the war the veteran’s knee would swell up and he underwent knee surgery in 1958;
(h)He suffered right knee problems until his death.
These facts, to use the phraseology of Tamberlin J, point to the hypothesis raised rather than leaving the matter at large or open. I therefore find that a valid hypothesis has been raised.
Second, the Tribunal then has to determine if the hypothesis is reasonable. This was explained by Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564 (‘Byrnes’) as follows (569-570):
“When that fact or facts have been identified, the question for determination is whether the hypothesis is reasonable… 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 materials before the Commission did not reveal the extent of his injury which he then suffered.”
Again no fact finding is required in determining this issue. The task required of the Tribunal was helpfully explained by Stone J in Elliott v Repatriation Commission [2002] FCA 26 as follows:
“25 …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… A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis.”
Further, as Jenkinson, Neaves and Wilcox JJ explained in East v Repatriation Commission (1987) 16 FCR 517 at 533:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts.”
Since Bushell and Byrnes were decided the Act was amended by the insertion of s 120A. Relevantly, s 120A(3) provides that a hypothesis for present purposes is reasonable only if there is a SoP in force that upholds the hypothesis. Accordingly, steps 2 and 3 of Deledio require the Tribunal to determine the reasonableness of the hypothesis by reference to any applicable SoP. In this instance the applicable SoP is Instrument 13 of 2010 – Osteoarthritis. The SoP regime is designed to provide the medical scientific frame of reference for the Tribunal when undertaking its task – Vietnam Veteran’s Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419.
A very useful summing up of the task required of the Tribunal was provided by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261at 275:
“The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.”
Consequently, as Mortimer J explained in Forrester v Repatriation Commission [2003] FCA 898 at [32], there are two aspects of determining whether a hypothesis is reasonable: a medical or scientific aspect and a factual aspect. A hypothesis will be reasonable if there are facts that support it and a SoP that upholds it.
A useful and particularly relevant example of the application of the reasonableness test focusing on the factual aspect is again found in McLean.
The Tribunal in that matter found that the material did not raise a reasonable hypothesis connecting the death with the circumstances of service on two grounds. Tamberlin J rejected the Tribunal’s first ground as follows (at [25]):
“…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 the AAT erred because it failed to look at the whole of the material in relation to the veteran’s back condition.”
However in McLean there was a second ground for a finding that the hypothesis was not reasonable, namely that the nexus between the death and any war injury was too tenuous. That was said to be because the material fell short of pointing to the sequence of events that occurred.
Tamberlin J found that it was open for the Tribunal to find that the hypothesis was too tenuous, and thus not reasonable (at [29]):
“…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 this hypothesis.”
Turning now to the applicable SoP, No 13 of 2010, the term “osteoarthritis” is defined in Cl 3(b) as follows:
“’osteoarthritis’ means a degenerative joint disorder with:
(i) Clinical manifestations of pain, impaired function and stiffness; and
(ii) Radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes.”
Clause 6 outlines factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthritis with the circumstances of a person’s service. Of relevance to the current matter is factor (m):
“for osteoarthritis of a joint of the lower limb only,
(i) lifting loads of at least 25 kilograms while bearing weight through the affected joint to a cumulative total of at least 120 000 kilograms within any 10 year period before the clinical onset of osteoarthritis in that joint; or
(ii) carrying loads of at least 25 kilograms while bearing weight through the affected joint to a cumulative total of at least 3800 hours within any ten year period before the clinical onset of osteoarthritis in that joint; or
(iii) having increased bone mineral density before the clinical onset of osteoarthritis in that joint”
This factor focuses on specific weight loads over, inter alia, certain periods of time. Mr Harding submits (AOS para 14) that the Tribunal is not required to be satisfied that the raised facts point to the veteran having lifted or carried the requisite loads during his service. Rather, it is submitted, meeting the standard mandated by the factor is achieved by aggregating the loads carried or lifted both within and outside the veteran’s service provided that this occurred within the mandated 10 year period.
Mr Harding cites in support of his submission Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 365.
Emmett J, when dealing with, in relation to that matter the question of the disc prolapse condition, said ([41],[43]/374):
“41 The second ground was formulated as follows:
‘A ‘factor’ in a Statement of Principles will be related to service if, for example, it was contributed to or aggravated by that service s 196B(14)(d). In order to satisfy the Statement of Principles concerning intervertebral disc prolapse the applicant had to meet the factor ‘smoking at least 20 pack years of cigarettes before the clinical onset of intervertebral disc prolapse’. The applicant’s case was that he had smoked before his operational service but increased his smoking as a result of that service. The tribunal erred by only having regard to the cigarettes smoked as a result of that service and not asking whether his total cigarette consumption had contributed to by his service.”…
43...the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.”
This approach was subsequently endorsed and followed by, for example, Katzmann J in Knight v Repatriation Commission [2010] FCA 1134 at [81] – [89] and Logan J in Blain v Repatriation Commission [2017] FCA 114.
The Tribunal, therefore, agrees that Mr Harding’s submission is correct.
As previously stated, whether a hypothesis is reasonable is a question of fact. The Tribunal is required to consider all the material before it, but neither proof of facts or onus of proof are at issue at this stage of the methodology – Repatriation Commission v Bey (1997) 79 FCR 364 at 367.
The facts outlined earlier highlight that the Tribunal has before it a hypothesis that is not fanciful or unreal. It is a hypothesis that can reasonably be made from the facts. In other words, the evidence presented raises facts that give rise to the hypothesis. A hypothesis is not unreasonable merely because there are either gaps in the evidence or a conflict within the evidence. Clearly as McLean graphically highlights, where there is an obvious and fatal gap in the causative chain that renders the hypothesis on its face, and without findings of proof, untenable, then it is prima facie unreasonable.
It would a fatal mistake for the Tribunal at this stage of the process to find that a hypothesis was unreasonable based on implicit findings on the truth of the evidence or the strength of competing propositions. To do so could have the effect of applying too harsh a burden on a claimant, considering that the burden of proof provisions are only activated at the final step of the methodology – Dixon v Repatriation Commission (1999) 29 AAR 235.
Mr Harding very helpfully set out in paragraph 10 of the AOS the relevant facts he submitted were pointed to by the evidence. The Tribunal adopts that outline of facts as being an accurate statement of the material presented. Based on that material, it could not be said that the hypothesis is fanciful, devoid of a factual basis or untenable.
The hypothesis raised, then, is not, prima facie, unreasonable.
Having formed this conclusion, the then step is to determine if it “fits” the relevant SoP.
As Mr Harding correctly submits (AOS para 13), the Tribunal is not required to make factual findings at this stage, rather it needs to determine if the material points to the facts which support the hypothesis and the hypothesis is consistent with the “template” in the SoP.
Mr Harding then made the following submission (paras 18 - 19):
“18. In order to give some perspective to the requirements of the SoP it is worth considering the following scenarios:
Lifting
·Lifting 25 kilograms while bearing weight through the affected joint to a cumulative total of at least 120 000 kilograms within any 10 year period before the clinical onset of osteoarthritis equates to 4,800 such loads. Assuming a modest period of 260 working days in a year:
olifting a (conservative) 5 loads per day = 1,300 loads per year = 3.7 working years;
olifting 12 loads per day = 3,120 loads per year = 1.54 working years
·Lifting 32.5 kilogram loads equates to 3,692 such loads. Assuming 260 working days in a year:
olifting 5 lifts per day = 1,300 loads per year= 2.84 working years;
olifting 12 loads per day= 3,120 loads per year = 1.18 working years;
·Lifting 40 kilograms equates to 3,000 such loads. Assuming 260 working days in a year:
olifting a conservative 5 loads per day = 1,300 loads per year = 2.3 working years;
olifting a 12 lifts per day = 3,120 loads per year= 0.96 working years.
19. The Veteran’s operational service alone comprises over 4 years in which the evidence points to him having lifted loads of at least 25 kg a number of times per day on a daily basis. Additionally, a relevant ten year period before the onset of osteoarthritis covers both the period when the Veteran worked as a labourer doing heavy manual work for some 3 – 4 years before his enlistment and the period of his operational service, an aggregate period of some 7 – 8 years, in which the Veteran undertook heavy lifting work on a regular basis.”
The material before the Tribunal does not permit any precise calculation of how much weight the veteran lifted/carried whilst he was enlisted. At best an exercise of informed speculation can be engaged in.
Helpfully, Mr Williams, while outlining some of the obvious deficiencies in the material, was prepared to concede that the veteran could meet the required lifting in the periods of service from 30 June 1942 to 23 October 1943 – ROS para 40.
The Tribunal is not required, and cannot, make findings of fact at this stage of the methodology. All that the Tribunal is currently required to do is to ascertain if the raised facts are consistent with, or fit into, the relevant factor or factors in the SoP.
Clearly there is evidence that the veteran was a farm labourer from the time he left school at around 14 years of age until he enlisted. It is a matter of common knowledge that farm labourers, especially those in rural Australia prior to the Second World War, worked in extremely hard conditions. Mechanisation was still in its infancy, and in the Depression era and thereafter, with high unemployment and low wages, labourers worked long hours and had to lift heavy loads. This would have particularly the case when the veteran was working on a rice farm. There is no suggestion that the veteran as a teenager from what the Applicant described as a poor family, would not have been engaged in other than very hard and relatively poor paying manual work.
The material also points clearly to the veteran engaging in heavy labouring work while he was in PNG, particularly when he was performing stevedoring work with other members of his Battalion in Port Moresby.
The material also points to the veteran being engaged in operations in mountainous, wet jungle conditions both in Papua in 1942 and in New Guinea in 1943. The historical material adduced by Dr Palazzo as well as his testimony, points to the veteran carrying heavy packs in arduous and dangerous conditions.
The statistics prepared by Mr Harding quoted above flow readily from a plain reading of the material before the Tribunal. It does not require a strained or even generous interpretation of the material to reach the conclusion that the material presented satisfies factor (m) of Instrument No 13 of 2010.
In Byrnes, Mason CJ, Gaudron and McHugh JJ said (571):
“(2) If a reasonable hypothesis is established, sub-s. (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 a reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
On the material before the Tribunal, I make no finding:
(a)that any of the facts necessary to support the first limb of the hypothesis, is disproved beyond reasonable doubt; and
(b)that any particular fact which is inconsistent with the first limb of the hypothesis, is proved beyond reasonable doubt.
Second Limb
As previously discussed the first step in the consideration of the second limb is to consider all of the material and determine if it points to some fact or facts which support the hypothesis.
The undisputed material before the Tribunal concerning the death of the veteran is as follows:
(a)the veteran for many years would walk early in the morning from his home to a nearby Caltex service station to purchase the daily newspaper;
(b)the veteran was struck and killed by a Nissan Patrol wagon driven by Mr T Payne at approximately 5 am on 13 December 2013;
(c)the accident occurred on Mains Road Runcorn, where the road has six lanes separated by a median strip;
(d)the veteran was attempting to cross Mains Road in an easterly direction to go to the Caltex service station;
(e)the accident occurred in the far-right lane of those on the western side where traffic was proceeding in a northerly direction;
(f)the accident occurred only 420 metres from his home;
(g)CCTV imaging from traffic cameras in the location suggested less than optimal visibility, and was assessed at less than 70 metres.
The fatal accident was the subject of a coronial investigation. The Coroner made the following comments in her report (Exhibit1 T6 pp. 31-32):
“Mr Payne was interviewed after the accident. He was travelling in the right lane going towards the city. There was another car that was in the left hand lane that was ahead of him. As he approached the intersection of Mulgowie Street he saw a man standing in the left hand lane on Mains Road.
As the car in front of him approached the man, he ran from the left hand lane into the middle lane, presumably to avoid the car. As that car passed the man, he turned around and appeared to start walking back towards the left hand lane and to go off the road.
As Mr Payne continued to approach, the man was still in the middle lane and facing towards the left lane. Mr Payne said he slowed down to about 50 kilometres per hour. When he was about 10 metres away the man suddenly turned around and dived from the middle lane into the right lane directly in front of Mr Payne. Mr Payne immediately applied the brakes as hard as he could and tried to stop, but could not do so before impact occurred. There was a bull bar on his vehicle. As soon as his vehicle stopped, he went to the assistance of the man.
Mr Payne said he could not take evasive action because he was in the right lane bounded by the median strip on his right hand side. The man was in the centre lane and Mr Payne thought he was walking back into the left lane, so he did not go in that direction. Mr Payne confirmed it was a bit foggy at the time. He estimated conditions were sufficient for him to see 50 – 100 metres ahead.
Police also spoke with Rhiannon McCathie. She was driving Honda Civic… along Mains Road in the far left lane towards the city. She confirmed it was just on daylight and quite foggy. It was about 50 metres from the intersection with Mulgowie Street when she first saw a pedestrian standing in the middle lane. It looked like he was trying to cross the road to the centre median strip. When she first saw him he was stationary.
She could see an orange car in the middle lane that was about 10 metres in front of her. There was also a silver four-wheel drive vehicle in the far right lane which was approximately level with the orange car. She was going about 55 – 60 kilometres per hour and the other two cars were not pulling away from her. She was behind these other two vehicles.
She said the pedestrian then stepped into the far right lane and disappeared under the silver four-wheel drive. She estimate there was about 50 metres visibility at the time. She had her headlights on. She saw the brake lights on the silver four-wheel drive were applied before impact occurred and she observed the front of the vehicle dip down.
George Hicks was travelling behind Tyson Payne. He confirmed visibility was reduced by the fog. He said the group of vehicles had stopped at the red light at the intersection of Mains Road and Beenleigh Road. At that intersection an orange car in the middle lane took off faster than the others. Mr Hicks saw the orange car’s brake lights come on and observed that it had slowed down suddenly. He stated he could not see why this had occurred due to the fog, but he changed from the middle lane to the right hand lane behind Mr Payne’s vehicle. Then he saw Mr Payne’s brake lights come on and saw Mr Davis appear from beneath the vehicle. The orange car proceeded on, but returned several minutes later.”
It will be noted that while the accounts of the accident, overall, are similar and consistent, there is a difference in the accounts of Mr Payne and Ms McCathie with respect to the mobility of the veteran when they observed him on Mains Road. Mr Payne describes the veteran running from the left to the middle lane and suddenly diving into the right-hand lane. Ms McCathie, on the other hand, describes the veteran as standing in the middle lane and stepping into the right-hand lane. When she gave evidence at the hearing she described the veteran as attempting to move into the far-right lane, moving slowly “and a little bit unsteady”. During cross-examination Ms McCathie said the veteran was “just slow and unsteady on his feet”.
The Tribunal is not required to resolve inconsistencies in the evidence or determine preferable scenarios at this stage.
The correct approach was set out by Tamberlin J in McLean which was quoted above. There must be facts which point to the hypothesis rather than leaving the matter at large or open. The existence of another hypothesis or inconsistent material does not necessarily mean that there is no available hypothesis. The key question the Tribunal must answer is whether, after considering all of the material presented, the hypothesis is available, in the sense that it is possible as distinct from being the only hypothesis. The bar is therefore set a relatively low level.
The evidence presented clearly points to the second limb of the hypothesis rather than leaving the matter at large or open.
The veteran had a right knee condition that negatively impacted on his mobility. That reduced mobility was further diminished by an accident at his home in the weeks leading up to the fatal accident.
The Tribunal was presented with a statement of a gentleman who had worked at the Caltex service station for at least eight years before the fatal accident. The statement had been admitted into evidence by the Veterans’ Review Board. The following information was provided (Exhibit 1 T2 B8-B9):
“The elderly gent was one of my regular client (sic) and my first recall of him was the man with the gumy (sic) leg and a limp and was told it was from the War. We had a chat each morning but hadn’t seen him for about 4 days. I would like to reinforce that this man had a bad leg and consequently he didn’t make it across”.
The evidence given by Ms McCathie at the hearing was compelling and the uncontested evidence of the Applicant about her husband’s mobility is consistent with the observations, over at least eight years, by the Caltex service station worker quoted immediately above.
The Tribunal therefore agrees with Mr Harding’s submission (AOS para 33) that there is evidence pointing to the crucial link in the hypothesis (second limb) and determines accordingly.
The next relevant step is to form an opinion whether the second limb of the hypothesis is a reasonable one. Having already determined that there is an appropriate SoP and determined that the hypothesis is consistent with the template, the only work necessary at this stage is to determine if the second limb of the hypothesis is “reasonable”. At this stage of the inquiry the only issue is a factual one, namely whether the hypothesis (second limb) is fanciful, incredible, not tenable etc. In short, if the hypothesis from the material presented, without any settled findings of fact, is patently implausible. At this stage, despite the hyperbole and use of evocative adjectives, a common-sense approach is required. If the hypothesis (or a particular stage or limb thereof) is patently unsustainable or presents with a telling gap in the causal chain such that it is untenable, then it is unreasonable.
In this instance, it is obvious where the material leads the Tribunal: the evidence is clear and very compelling. The second limb of the hypothesis is reasonable.
The final step of the Deledio methodology has also been previously explained. Even though it is not necessary, certain factual issues can now be addressed.
The accounts of the fatal accident set out previously present, in the circumstances, a clear and understandable snapshot of what occurred.
It was very early in a summer morning in Brisbane. The three key witnesses who gave police statements shortly after the fatal accident described the morning as “foggy”. Ms McCathie told the police that she had her headlights on at the time (Exhibit 1 T6 p.32). All of the witnesses whether in giving statements to the Police or in testimony to the Tribunal said that visibility was poor. Whether that was fog or simply circumstances surrounding the weather on the day and the fact that it was not quite daybreak is not important. It is clear that for motorists driving at that time, their visibility was constrained.
Then there are the statements of the persons who were driving along Mains Road at the critical time. What is clear from what they say is that the veteran was attempting the cross the road. Ms McCathie gives the perspective from a driver on the left-hand side of the road. Mr Payne and Mr Hicks from drivers on the right-hand side (Mr Hicks having moved from the middle to the right-hand lane).
Mr Payne described the veteran as running from the left to middle lane and then diving into the right hand lane. Ms McCathie, on the other hand, paints a different picture. She describes an old man who was unsteady on his feet moving slowly. No doubt an old man confused and afraid, presented with a frightening scenario of traffic moving at speed towards him on a broad thoroughfare in bad weather conditions. The scenario outlined by Ms McCathie when she gave oral evidence rings true. She first observed the veteran stationary in the middle lane. He continued to move towards the median strip. Unfortunately, he moved into the oncoming four-wheel drive. The driver of that vehicle, who had an unblemished driving record, from all accounts was doing all he could to avoid the collision but struck the veteran. The veteran died as a result of that collision. Ms McCathie when asked by Mr Williams whether it would have made any difference if he could have moved more quickly or slowly said that if “he was a little more steady on his feet, he may have been able to avoid the vehicle” - Transcript p. 38. Having observed Ms McCathie give evidence, and having considered all of the material presented, I prefer her version of what occurred.
Having regard to the above, I make no finding:
(a)that any particular fact, necessary to support the second limb of the hypothesis relied upon, is disproved beyond reasonable doubt; and
(b)that any particular fact which is inconsistent with the second limb of the hypothesis, is proved beyond reasonable doubt.
CONCLUSION
The overall hypothesis advanced by the Applicant for her claim for a war widow’s pension is accepted as raising a reasonable hypothesis connecting the veteran’s death with his service. The Tribunal is therefore satisfied, according to the standard of proof mandated by s 120(3), that the veteran’s death was war-caused.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that the death of the late veteran, Joseph Davis, was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.
I certify that the preceding 124 (one hundred and twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
...............................[Sgd].........................................
Associate
Dated: 05 June 2017
Date of hearing: 8 May 2017 Date final submissions received: 16 May 2017 Counsel for the Applicant: Mr Anthony Harding Solicitors for the Applicant: Terence O'Connor Solicitors Advocate for the Respondent: Mr Bruce Williams
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