Hornibrook and Repatriation Commission - [2001] AATA 160

DECISION AND REASONS FOR DECISION [2001] AATA 160

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/35

VETERANS' APPEALS DIVISION       )
           Re      BETTY MAY HORNIBROOK
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member Mr C Ermert, Member

Date2 March 2001
PlaceMelbourne

Decision      The Tribunal affirms the decision under review
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS - death - whether war-caused - whether reasonable hypothesis raised - hypothesis that exposure to volcanic fumes may have caused asthma which contributed to death - conflicting medical evidence as to whether chronic asthma could develop as a result of exposure to volcanic fumes - whether that part of hypothesis contrary to scientific facts - whether lack of oxygen due to respiratory problems contributed to death from cardiogenic shock - no factual foundation to that hypothesis - clinical records show that low oxygen levels did not contribute to death - decision affirmed

PRACTICE AND PROCEDURE –whether s 120(4) of Veterans' Entitlements Act 1986 requires review and possible amendment

Veterans' Entitlements Act 1986 ss 120(1), (3) and (4)

McKenna v Repatriation Commission (1999) 29 AAR 70

Keeley v Repatriation Commission (1999) 56 ALD 455

Repatriation Commission v Webb, Full Federal Court, 5 November 1998, 981411/1998

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210, 30 ALD 1

East v Repatriation Commission (1987) 74 ALR 518

Statement of Principles Instrument No. 59 of 1996

Statement of Principles Instrument No. 75 of 1997

REASONS FOR DECISION

2 March 2001 Mrs Joan Dwyer, Senior Member Mr A Argent, Member Mr C Ermert, Member

background

This is an application for review of a decision of the Repatriation Commission made 1 February 1996 which refused Mrs Hornibrook's claim for war widow's pension under the Veterans' Entitlements Act 1986 ("the Act") on the ground that the death of her husband, Roy Hornibrook, was not a war-caused death within the meaning of that term in s 8 of the Act. The decision of the Repatriation Commission was affirmed by the Veterans' Review Board ("the VRB") on 7 October 1998.
Mr M Croyle of Counsel appeared for Mrs Hornibrook. Mr E Nyhof, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mrs Hornibrook gave evidence. Evidence on her behalf was also given by her son, Mr Brian Hornibrook, and Dr Collins, a forensic pathologist. The respondent called Dr Hart, a respiratory physician and Professor Cade who is the Director of Intensive Care at the Royal Melbourne Hospital. The respondent's witnesses gave evidence by telephone. The Tribunal had before it the documents, ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT ACT") and also the exhibits tendered during the hearing.
The death certificate (T5 p29) shows the cause of Mr Hornibrook's death on 24 April 1990 and duration of last illness as follows:
Cardiogenic shock – 24 hours
Myocardial infarction – 14 days
Coronary artery…

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 Hornibrook and Repatriation Commission

Details

AGLC: Hornibrook and Repatriation Commission [2001] AATA 160
Case: [2001] AATA 160
Decision Date: 2 March 2001

CaseChat Overview and Summary

In the case of Hornibrook v Repatriation Commission, the primary issue was whether Mr Hornibrook's asthma, which developed after his military service, could be linked to his exposure to volcanic fumes during his service at Bougainville and Rabaul. The Full Court was tasked with determining if a reasonable hypothesis existed that Mr Hornibrook's asthma was a result of his exposure to these fumes.

The court examined the evidence presented, including the testimonies of family members and Mr Goodear, who suggested that Mr Hornibrook's asthma developed during his service. The medical evidence was pivotal in the case. Dr Collins proposed that Mr Hornibrook's asthma could have been caused by exposure to volcanic fumes, suggesting that such exposure could sensitise the respiratory system and potentially lead to asthma. However, Professor Cade and Dr Hart argued against this hypothesis, stating that there was no medical evidence supporting the notion that chronic asthma could develop from exposure to volcanic fumes. They highlighted that environmental pollutants, including sulphur dioxide from volcanoes, are known to exacerbate respiratory diseases rather than cause them.

The court ultimately decided that the hypothesis proposed by Dr Collins, although imaginative, was not supported by the medical literature and was therefore not reasonable. The testimonies and medical evidence collectively did not sufficiently link Mr Hornibrook's asthma to his exposure to volcanic fumes, leading the court to conclude that no reasonable hypothesis existed to support such a causal link. Consequently, the Full Court dismissed the appeal, affirming the decision of the Administrative Appeals Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In East v Repatriation Commission (1987) 74 ALR 518 at p533 the Full Court considered the concept of the raising of a reasonable hypothesis saying: The adoption of Brennan J's notion of a reasonable hypothesis meant that Parliament was requiring something by way of causal link, but which fell short of proof of the link even prima facie as a fact. The meaning of the phrase "reasonable hypothesis" was felicitously explained by a Veterans' Review Board in Stacey (Nos V83/0396, V84/0821 and V28/072); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:"A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary...The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable, even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. (emphasis added) That passage was considered in Bushell and Byrnes. It was not criticised or corrected, but in Byrnes the High Court explained at p214: 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. In Bushell ((4)ibid, at p.414.), Mason CJ, Deane and McHugh JJ said: "(A) hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature ((5) Commissioner for Government Transport v. Adamcik (1961) 106 CLR 292, at p 306.)'. Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' ((6) East v. Repatriation Commission (1987) 16 FCR 517, at p 532.)."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 the injury which he then suffered.

Evidence

Evidence Before The Court

Mr Hornibrook's exposure to sulphur dioxide fumes, during his service at Bougainville and Rabaul, was conceded by the respondent. The evidence of Mrs Hornibrook and statements from Mrs Pauline Harvey and Mr Alfred Hornibrook, a sister and brother of Mr Hornibrook, point to Mr Hornibrook having developed asthma during service as he did not have asthma before service and he did have asthma from the time he returned from service. The evidence of family members and Mr Goodear does raise a hypothesis that Mr Hornibrook contracted asthma during service as a result of exposure to volcano fumes while serving in Bougainville and at Rabaul.(ii) the medical evidence Dr Collins proposed the hypothesis that Mr Hornibrook developed asthma due to exposure to volcano fumes. Professor Cade and Dr Hart said that there is no evidence in the medical literature of chronic asthma developing as a result of exposure to volcano fumes. Dr Collins in his report of 21 May 1999, as set out in paragraph 8 above, had stated, "it would be entirely reasonable to argue on sound pathological grounds that . . . exposure to volcanic fumes . . . would have the very real potential of sensitising his respiratory tree and producing an asthmatic diathesis." Dr Collins said that exposure to volcanic eruption material can cause lung disease and irritation of the airways. He said volcanic ash irritates the airways and that can produce sensitivity. He added that because it alters the respiratory architecture it may precipitate an attack of asthma. Dr Collins said that exposure to ash can cause the development of non-specific bronchial activity and there can be a significant individual reaction. Professor Cade as explained in paragraph 18 above, in his report dated 11 August 1999 (R2) described Dr Collins' suggestion that exposure to volcanic eruptions could have caused Mr Hornibrook's asthma as "colourful, imaginative and not plausible." As to the first part of the hypothesis, that is the connection between exposure to volcanic gases and asthma he wrote:5. Environmental pollutants such as sulphur dioxide (spewed by volcanoes but better known as urban emissions) are recognized causes of exacerbation of respiratory disease rather than causes of continuing respiratory disease.6. Volcanoes have been shown not to cause continuing new respiratory disease such as asthma (except in the rare circumstance of heavy exposure to ash which can sometimes cause pulmonary fibrosis). This lack of respiratory damage has been extensively documented, particularly after the eruption of Mt St Helens in the USA in 1980, and subsequently following eruptions in Mexico, Indonesia and Papua New Guinea (see references below). Indeed, in animal experiments, volcanic ash decreases bronchial reactivity (i.e. the opposite of asthma). Dr Hart said that from reviewing medical notes concerning Mr Hornibrook he saw that he had been taking Ventolin and Beclaforte which are used for asthma. Therefore Dr Hart was prepared to assume that Mr Hornibrook had asthma, although he saw nothing which confirmed that diagnosis in the notes.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.