Gardiner and Repatriation Commission

[2007] AATA 1330

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1006

VETERANS’ APPEALS DIVISION		)
Re		PAULINE GARDINER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M. D. Allen, Senior Member
Dr M. E. C. Thorpe, Member

Date17 May 2007  

PlaceSydney

Decision Decision under review is affirmed.

.................[sgd].............................

M. D. Allen
  Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for war widows’ pension – question of what “kind of death” was suffered – whether “kind of death” was war-caused – whether reasonable hypothesis connecting veteran’s injury with war service – veteran involved in tractor accident – whether death from tractor accident attributable to war-cause lumbar spondylosis – lack of reasonable hypothesis – decision under review affirmed

Veterans’ Entitlements Act 1986 sections 5C, 6A, 8, 120

Hayes v the Repatriation Commission [2005] FMCA 125- distinguished

Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152

REASONS FOR DECISION

17 May 2007 M. D. Allen, Senior Member
Dr M. E. C. Thorpe, Member        

1.      On 10 August 1975 Malvin Ernest Gardiner died when the tractor he was driving overturned, pinning him face down in the ground causing asphyxiation.  In these proceedings the deceased’s widow seeks to have the death of her late husband attributed to his war service.

2. There is no dispute that the deceased was a veteran who had operational service as those terms are defined in sections 5C and 6A respectively of the Veterans’ Entitlements Act 1986 (“VEA”). The issue before this Tribunal was whether a reasonable hypothesis had been raised connecting the death of the deceased with the circumstances of his war service, and if so, whether any of the facts supporting that hypothesis had been negatived beyond a reasonable doubt.

3. As the deceased had operational service the standard of proof in this matter is that mandated by subsections 120(1) and (3) of the VEA, whereas subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.

4.      The Applicant’s case was that the deceased, because of his war service, suffered from lumbar spondylosis and that he was so restricted in movement by his lumbar spondylosis that when the tractor he was driving “rolled” he was unable to jump clear and so became pinned underneath the overturned tractor and suffocated.

5.      A post mortem was conducted on the deceased and the cause of death stated as “asphyxia due to cerebral concussion”.

6.      As to the circumstances leading to the death of the deceased, no witnesses were present but the report of death to the Coroner stated:

At about 9.45am on the 10th August, 1975 the deceased left his residence on a Massey Ferguson tractor, carrying a disc plough on a three point linkage.  He travelled down Sandy, a distance of about 1km to a property which is owned by the deceased.  It would appear that at about 10am the deceased went to cross a makeshift bridge, across a deep narrow gully on the property, when the disc plough apparently caught on some steel bolts which were protruding from the floor of the bridge, tipping the tractor to the nearside, turning upside down and sliding down an embankment.  Two pieces of steel which were protruding up from the disc plough (approximately 12” long and 10” apart) caught on either wide of the deceased [sic] head, pinning him face down in the ground, apparently causing suffication [sic].

The accident was not witnessed and was not noticed until about 11.04am when a Selym Yates walked past the gully and saw the deceased.  The alarm was raised and Tamworth District Ambulance attended and conveyed the deceased to Tamworth Base Hospital where life was pronounced extinct by Dr Bakon at 12.45pm.

…  

7.      At the outset of these proceedings the Respondent conceded that the deceased suffered from a war-caused lumbar spondylosis.  We find that that concession was properly made.  The deceased had served in the South West Pacific area in an artillery regiment as a gunner.  The historian’s report makes clear he would have lifted sufficient weights during his service to conform to the Statement of Principle (“SoP”) regarding lumbar spondylosis in force at the time of this review; albeit that conformity with an SoP is not necessary for the Tribunal to be satisfied for the purpose of the hypothesis in this matter that a fact supportive of the hypothesis has been raised on the material before us.

8.      To our mind there is no issue as to the “kind of death” suffered by the deceased.  Whereas the respondent in submissions directed us to the remarks in Hayes v Repatriation Commission [2005] FMCA 125 we do not consider that case as relevant to the matter before us. The claim in this matter is brought pursuant to subsection 8(1)(b) of the VEA, namely that the death arose out of or was attributable to the deceased’s war- service. As stated above the Applicant submits the death was attributable to war service as a war caused disease - lumbar spondylosis, was an operative cause of the death.

9.      Exhibit A6 is a report by a consulting engineer regarding the circumstances of the accident and the ability of a person to jump clear of a tractor as it is in the process of rolling over.  Although the consultant postulates that a normal healthy male would have had sufficient time to jump clear if the tractor was travelling in second gear and had a possibility of jumping clear if the tractor was travelling in third gear, he does point out “the time safety margin is very narrow”.  Earlier the engineer had estimated the time to clear the vehicle as varying from 2.2 seconds in second gear and 1.6 seconds in third gear.  He added, although the basis of this information was not disclosed, “a healthy alert male in his 50’s would require approximately 0.7 seconds to respond to impending danger.”  (The deceased was aged 51 years at the time of his death).

10.     By subtracting response time from the hypothesised available exit times it can be seen that the opportunity for a tractor driver of the deceased’s age to exit a tractor in the process of overturning is an extremely short period of time even for an able bodied male.

11.     Very little is known of the deceased’s state of health on the day of his death.  The Applicant stated that at the time of his death the deceased was having a lot of problems mainly with his back, but, understandably given the effluction of time, was unable to give any detailed evidence of how her husband presented prior to setting out on his fatal journey.

12.     In his statement the deceased’s son Mr Kevin Gardiner said that before his death the deceased was limited in what he could do because of his back.  We note in passing that his back condition was one of the conditions which had led to the deceased being granted a Disability Support Pension.

13.     When cross-examined, Mr Kevin Gardiner said that on the morning of his death the deceased had filled the tractor with fuel and had ploughed a vegetable patch.  He had observed his father walking to the tractor shed and had not noticed if he had had any undue difficulty walking.  To fill the tractor with fuel the deceased would have had to lift a two gallon fuel drum to chest height.

14.     As the relevance of the deceased’s ability to jump clear of the rolling tractor was not apparent at the time of the coroner’s inquest, no mention was made in those proceedings of any lack of mobility on the deceased’s part.  Likewise a lack of mobility was not raised with the Respondent when the Applicant first made a claim respecting the death of the deceased.

15.     Dr Chase is an occupational physician.  Both in his report and in his evidence he was invited to speculate regarding tractor safety and the mechanics of the deceased’s fatal accident.  Neither Dr Chase, nor Dr Matalani (who was called by the Respondent) have qualifications in mechanics or engineering, and we regard their evidence upon the mechanics of the fatal accident as being outside their area of expertise.  That does not mean, however, that they cannot state what they, as occupational physicians, understand generally as to the safety of tractors and their like.  For example, that the frequency of fatalities from tractors rolling over led to an agitation to install “roll over bars” as a safety feature.

16.     Keeping within his field of expertise Dr Chase was able to state that he could not comment on the state of the deceased’s back on the day of the accident.  The deceased did have relapsing, remitting back pain, but no comment could be made on the severity of his condition on any given day.

17.     Dr Chase, however, did state that what was known was that the deceased was in sufficiently good health to get up on the day in question and make a decision to go out and plough.  That is to say he was well enough to undertake that activity.

18.     Apart from his lumbar spondylosis the deceased suffered from other non-war caused illnesses including osteoarthritis of the sacroiliac joints and osteoarthritis of the knee joints.  It seems to us that those conditions would also have played their part in the deceased’s inability to exit the tractor.

19.     Ten weeks prior to the accident the deceased had obtained a prescription for an anti-depressant and an analgesic.  Again nothing is known as to the frequency with which the deceased availed himself of this medication and if he had taken any on the day of his death.  If he had taken an anti-depressant this may have affected his reaction time.

20.     We agree with the Applicant that the material before us has raised an hypothesis, however the real question is whether given all the material before us, the hypothesis can be said to be a reasonable one.

21.     Although facts may be assumed for the purpose of constructing an hypothesis, a distinction must be made between assumed facts on the one hand and speculation and conjecture on the other.

22.     The fact situation and statement of law by Wright L J in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 at 169 is particularly apposite in this matter, namely:

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed.  The Court therefore is left to inference or circumstantial evidence.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

23.     As we have previously pointed out, facts may be assumed for the purpose of constructing an hypothesis.  However in this case, all that is known is that the deceased suffered from war-caused lumbar spondylosis amongst other diseases which would have limited mobility, and had obtained a prescription for anti-depressant medication.  He was killed when a tractor he was driving rolled over.  To then say that it was his lumbar spondylosis that prevented him jumping clear of the tractor so as to avoid fatal injury when all he had was one to two seconds in which to take that action is, on what is known in this matter, mere speculation and incapable of raising an hypothesis properly categorised as reasonable.

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of M. D. Allen, Senior Member and Dr M. E. C. Thorpe, Member

Signed: ............[sgd]............................
  Associate

Date/s of Hearing  20 July 2006 and 3 May 2007
Date of Decision  17 May 2007
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant          Ms S Hahn of Dibbs Abbott Stillman    
Solicitor for the Respondent     Ms K Harry of the Department of
  Veterans’ Affairs