Hook and Repatriation Commission - [2003] AATA 70

DECISION AND REASONS FOR DECISION [2003] AATA 70

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/875

VETERANS' APPEALS DIVISION          )
           Re      JEAN HOOK
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date24 January 2003
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ...................(Sgd)....................
  IR Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – benefits and entitlements – war widow's pension – whether death of the veteran was war-caused – death of veteran occurred following a motor vehicle accident – whether reasonable hypothesis can be established linking veteran's death with his war service
Veterans' Entitlements Act 1986 ss 5B, 6A, 8, 13, 14, 120, 196
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 149 ALR 721
Cooke v Repatriation Commission (1997) 45 ALD 205

REASONS FOR DECISION

24 January 2003 Mr I R Way, Member

This is an application by Jean Hook (the applicant) for review of a decision of the Repatriation Commission dated 8 February 2001, affirmed by the Veterans' Review Board (VRB) on 6 August 2001, that determined the death of the applicant's late husband, Frederick Hook (the veteran), was not war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 (the Act).
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and the following documentary evidence:
Report of Dr J Love dated 5 April 2002   Exhibit A1
Report of Professor Ansford dated 3 February 2002     Exhibit R1
Report of Dr J McCarthy dated 3 December 2001       Exhibit R2
Notes from original post-mortem file   Exhibit R3
Ms M Brennan represented the applicant and Mr D McAninly appeared for the respondent. Dr Love, Dr Wilkinson and Professor Ansford gave oral evidence.
Under section 13 of the Act the Commonwealth is liable to pay a pension by way of compensation to the dependents of the veteran, where the death of the veteran was war-caused. A dependent of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14 of the Act.
The veteran served in the Australian Army during Word War II from 22 July 1940 to 4 December 1945, including service overseas.
The applicant is the widow of the veteran, who rendered operational service as defined in sections 5B and 6A of the Act, namely continuous full time service outside Australia during World War II.
Background Facts
The relevant background facts in this matter are not in dispute and the Tribunal finds:
·     The veteran was born on 2 August 1917.
·     The veteran underwent heart surgery for replacement of a mitral valve in May 1991.
·     On 28 March 2000 at 0630 hours, the veteran was struck by a rigid truck, travelling at 60 kilometres per hour, while he, as a pedestrian, was crossing a road near his home.
·     At the time of the accident the applicant's war-caused accepted disabilities were:
·Solar dermatosis with malignant change;
·Mitral valve prolapse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hook and Repatriation Commission

Details

AGLC: Hook and Repatriation Commission [2003] AATA 70
Case: [2003] AATA 70
Decision Date: 24 January 2003

CaseChat Overview and Summary

The applicant, the widow of a deceased veteran, sought a war widow's pension under the Veterans' Entitlements Act 1986. The primary issue before the Court was whether the veteran's death, which occurred following a motor vehicle accident, was war-caused within the meaning of section 8 of the Act. The Court needed to determine if there was a reasonable hypothesis linking the veteran's death with his war service.

The Court examined the evidence and concluded that the veteran was taking Warfarin, an anticoagulant, which would have significantly increased his risk of excessive bleeding in the event of an injury. The applicant argued that the Warfarin contributed to the veteran's excessive bleeding and death following the accident. The Court considered the relevant statutory provisions and past case law to assess whether the hypothesis was reasonable. The Court found that the hypothesis was not merely a possibility but one supported by the facts, as the material pointed to the veteran's severe injuries and the effects of Warfarin.

The Court found that the hypothesis put forward by the applicant was reasonable because it was supported by the facts. The Court noted that the severity of the impact from the accident would inevitably have caused the veteran's death, regardless of the Warfarin. However, the Court held that the hypothesis was not fanciful, untenable, or contrary to known scientific fact. The Court was satisfied that there was a reasonable hypothesis linking the veteran's death with his war service.

The Court affirmed the decision under review, holding that the death was war-caused. The applicant was entitled to the war widow's pension.

Orders

Orders of the court

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Background

Background to the litigation

The applicant is the widow of the veteran, who rendered operational service as defined in sections 5B and 6A of the Act, namely continuous full time service outside Australia during World War II.Background Facts The relevant background facts in this matter are not in dispute and the Tribunal finds:· The veteran was born on 2 August 1917.· The veteran underwent heart surgery for replacement of a mitral valve in May 1991.· On 28 March 2000 at 0630 hours, the veteran was struck by a rigid truck, travelling at 60 kilometres per hour, while he, as a pedestrian, was crossing a road near his home.· At the time of the accident the applicant's war-caused accepted disabilities were:·Solar dermatosis with malignant change;·Mitral valve prolapse with regurgitation and sub acute bacterial endocarditis;·Loss of teeth associated with periodontitis;·Bilateral sensori-neural hearing loss;·Bilateral tinnitus;·Malignant melanoma of the skin and back.And his non-accepted conditions were:·Cataracts;·Tonsillar remnants with recurrent tonsillitis;·Death. The hypothesis put forward by the applicant is as follows: The Act relevantly provides as follows:"8 War-caused death (1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if- (a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; (c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty; (d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or (e)the injury or disease from which the veteran died- (i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or (ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease, or(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be:but not otherwise."

Evidence

Evidence Before The Court

Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular services rendered by the veteran.Medical Evidence Dr Love, physician, did not know the veteran personally. However, after reviewing the autopsy report and the veteran's DVA file, including Dr Wilkinson's report (T4/35), Dr Love prepared a written report dated 5 April 2002 (Exhibit A1). In this report Dr Love expressed the opinion that severe blood loss was one of the primary causes of the veteran's death and that the Warfarin the veteran was taking would have significantly increased the veteran's loss of blood and considerably increased the requirements for blood transfusion and for resuscitation. In his oral evidence Dr Love said that there were indications of excessive bleeding in that the post-mortem examination reported that there were four tubes attached to the body for injection of fluids and blood, two tubes in the damaged area of the chest letting blood out and there was evidence of severe tearing of the veteran's lung which would have caused intense bleeding. Dr Love was of the view that it would be reasonable to assume that blood loss was not stopped. He said this conclusion was also supported by the report of Dr McCarthy where it was recorded that the veteran, on arrival by ambulance at the Prince Charles Hospital was bleeding profusely from the right side chest drain. Dr Love said that the veteran's severe injuries had caused considerable blood loss which required great efforts to try to replace this loss and which in this case resulted in the veteran's "pump system" failing because of insufficient blood. On this basis he was satisfied that the veteran's blood loss was a primary cause of death and the Warfarin medication that the veteran was taking for his heart condition contributed to the veteran's excessive bleeding. As such Dr Love said that he did not consider that the hypothesis put forward by the applicant was fanciful, untenable or contrary to known scientific fact. With respect to the use and effects of Warfarin, Dr Love said that he would expect the veteran to be on a high level of medication because of his particular heart condition, such that he would be maintained at an INR level of 3 to 4. He described this level as meaning that clotting would take three to four times as long as it would if the veteran was not on Warfarin. In cross-examination Dr Love accepted that the cardiac massage given by the QAS would have increased the veteran's bleeding. However, he said that in the circumstances there was no alternative to the Ambulance officers taking such action. Dr Wilkinson, cardiologist, was the veteran's treating cardiologist and had been treating the veteran for some ten years prior to death. He said that he regularly checked the veteran's heart condition (every twelve months) following the veteran's mitral valve surgery and that it was essential that the veteran take Warfarin because of his mitral valve replacement and because of his atrial fibrillation (which he said could not be separated).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was therefore submitted that the decision under review should be affirmed.Consideration The Tribunal is satisfied that the veteran, at the time of the accident, was taking the anti-coagulant drug Warfarin, such that his INR would have been maintained at a level between 3 and 4. The Tribunal is also satisfied that at this ratio level blood clotting takes significantly longer than it would if Warfarin was not being taken (of the order of three to four times as long); and therefore can lead to increased bleeding in the event of injury. The hypothesis put forward by the applicant however is not contested by the respondent on the ground that the veteran actually suffered excessive bleeding at the time of the accident. The respondent's contention is that the extreme severity of the impact suffered by the veteran inevitably causing his death regardless of any coagulant medication being taken by the veteran. As such the respondent contends that the hypothesis put forward by the applicant is not a reasonable hypothesis. The Tribunal, being satisfied that there is no SoP in force or pending pursuant to the Act, is to determine this matter within the provisions of sections 120(1) and 120(3) of the Act. The Tribunal is mindful that the Courts have addressed the correct approach to be taken in matters such as this. The joint judgment of the Full Court in East v Repatriation Commission (1987) 16 FCR 517 cited with approval the following passage:"…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 the material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis …a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities (at 532-3)." With regard to the approach to be taken in considering whether an hypothesis is reasonable, the Tribunal notes the comments of the Full Court of the Federal Court of Australia in Repatriation Commission v Bey (1997) 149 ALR 721. In Bey, at 730, the Full Court commented on the decision in Cooke v Repatriation Commission (1997) 45 ALD 205 as follows:"In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a 'reasonable hypothesis' on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not 'hypothesis' but 'reasonable hypothesis'. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker. The reasoning is also inconsistent with what was said by Jason CJ, Deane and McHugh JJ in Bushell (at CLR 414; ALR 34):'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.'It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes (at CLR 569-570; ALR 214):'The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.'Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."