Ryan and Repatriation Commission

[2010] AATA 230

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 230

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4948

VETERAN'S APPEALS  DIVISION		)
Re		Kathleen Ryan

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Dr Max Thorpe, Member

Date              31 March 2010

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

VETERANS - war widows’ pension - operational service - veteran killed when crossing road - hypothesis that veteran’s war-caused hearing loss meant he failed to hear oncoming vehicle - standard of reasonable hypothesis applies - no material pointing to a connection between hearing loss and service – no material pointing to connection between hearing loss and death - hypothesis not reasonable - whether veteran’s death resulted from serious default or wilful act on his part - no evidence of a wilful act - decision under review affirmed.

Administrative Appeals Tribunal Act 1975

Veterans Entitlements Act 1986

Boral Resources v Pyke (1990) 93 ALR 89

Bushell v Repatriation Commission [1992] 175 CLR 408

Byrnes v Repatriation Commission [1993] 177 CLR 564

East v Repatriation Commission (1987) 16 FCR 517

Hill v Repatriation Commission (2005) 85 ALD 1

McPherson v Repatriation Commission [1989] FCA 84

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

31 March 2010	Senior Member Jill Toohey
Background

1.      Mr Jack Ryan served in the Australian Army from March 1944 to 26 November 1946.  He died on 21 July 1999 from injuries sustained when he was hit by a car while crossing a road near his home.  He was seventy-seven years old when he died and had suffered hearing loss for over twenty years. 

2.      Mr Ryan’s widow, Kathleen Ryan, claims a war widow’s pension.  She says her husband’s hearing loss was related to his service and that it caused, or contributed to, his death because he failed to hear the approaching car.

3.      The Repatriation Commission (the Commission) disputes that Mr Ryan suffered from any service-related condition at the time of his death.  It does not dispute that he had bilateral sensorineural hearing loss at the time of his death but disputes that it was related to his service and says that, in any event, his death resulted from a wilful act on his part. 

4.      Mrs Ryan’s original claim was that her husband suffered a heart attack while crossing the road in front of the oncoming car.  A delegate of the Commission determined that Mr Ryan’s death was due to skull fracture and cerebral haemorrhage which, because they did not occur during operational service, were not related to his service.

5.      Mrs Ryan sought review of that decision by the Veterans Review Board (the Board).  Questions of Mr Ryan’s hearing loss, and a connection to his war service, appear to have been raised in the course of the Board’s review.  In any event, according to a decision published on 4 December 2006, the Board’s decision on that date was, firstly, to accept that Mr Ryan’s sensorineural hearing loss was war-caused and, secondly, to adjourn the hearing pending further investigation of the circumstances in which he died. 

6.      On 19 September 2007, the Board, differently constituted, accepted that Mr Ryan’s exposure to noise during his operational service “would have caused” his hearing loss.  However, it determined that his “serious default in ignoring a Don’t Walk sign on a busy highway with traffic travelling at 80kph” meant his death was excluded by s 8(3) of the Veterans Entitlements Act 1986 (the Act) from the meaning of war-caused in s 8(1).  Mrs Ryan seeks review of that decision.

The issue

7.      By s 13 of the Act, Mrs Ryan will be entitled to a widow’s pension if her husband’s death was “war-caused” within the meaning of s 8(1), in particular, if it arose out of, or was attributable to, his service: s 8(1)(b). 

8.      We have to determine whether Mr Ryan’s death was war-caused. 

Standard of proof

9.      The whole of Mr Ryan’s service is operational service for the purposes of the Act.  The standard of reasonable hypothesis therefore applies.  In applying that standard, we are required to follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97.

10.     By s 120(1) of the Act, we must determine that Mr Ryan’s death was war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.  We shall be satisfied beyond reasonable doubt if the material before us does not raise a reasonable hypothesis connecting his death with his service: s 120(3). 

11.     For the purposes of s 120(3), a hypothesis connecting the death of a veteran with the circumstances of his service will be reasonable only if there is in force a relevant Statement of Principles (SOP) that upholds the hypothesis: s120A (3).  Where no SOP has been determined for the kind of death in question, then the matter is to be determined as set out in Bushell v Repatriation Commission [1992] 175 CLR 408 and Byrnes v Repatriation Commission [1993] 177 CLR 564.

Mr Ryan’s kind of death

12.     According to his death certificate, the cause of Mr Ryan’s death was:

1.        (a)      Acute circulatory failure

(b)      Massive blood loss
  (c)       Ruptured inferior vena cava

2.Intra cerebral haemorrhage skull fracture

13.     There is no dispute that the medical cause of Mr Ryan’s death was as listed on his death certificate.  It is agreed, and we are satisfied, that his kind of death for the purposes of the Act was the massive blood loss he suffered following the trauma of the accident.

14.     There are no SOPs currently applicable to the kind of death met by Mr Ryan.

Was Mr Ryan’s hearing loss related to his service

15.     Mrs Ryan contends that her husband’s death was caused by the accident on 21 July 1999 which arose out of, or was attributable to, his hearing loss which itself arose out of, or was attributable to, his operational service. 

16.     Mrs Ryan relies SOP No 29 of 2001, Sensorineural Hearing Loss, factor 5(a) of which requires:

being exposed to an impulsive noise of at least 130 dBA without adequate ear protection before the clinical onset of sensorineural hearing loss

17.     Mr Ryan was in receipt of a service pension before his death.  Mrs Ryan believes this was on account of his hearing loss but the Commission’s records show that this was not so.  The misunderstanding may have arisen because Mr Ryan was able to obtain benefits, including hearing aids and related treatment, associated with his service pension.  However, the records show that he did not ever receive a disability pension on account of his hearing loss.  No claim of a connection between his hearing loss and his service appears to have been made until Mrs Ryan’s claim for a widow’s pension.

18.     Mrs Ryan gave evidence that her husband developed hearing loss in his left ear in 1982.  As she recalls, he had a hearing aid fitted in that ear in 1982, and another fitted in his right ear in 1986.  He wore his hearing aids all the time but would turn them down, although not off, when there was loud background noise such as traffic; he would turn them up again to hear people talking.

19.     Mrs Ryan told us that her husband would go out each morning to the local shop to buy the newspaper, always at the same time and in the same direction.  She did not accompany him and so cannot say from her own observations what route he would follow but she knew it was his habit to follow the same route at the same time each morning.  Each evening he would take a different walk, to the nearby beach.

20.     According to Mrs Ryan, her husband did not say a lot about his time in the army and she did not ask; if he wanted to talk about it, she would let him talk but he never said very much about his war service at all.  There is nothing in what little she knows about his war service that might connect it with his hearing loss.

21. Dr Joseph Scoppa, ear, nose and throat specialist, provided a written report, and gave oral evidence, based on his assessment of documents provided to him by the Commission. They included the documents produced by the Commission under s 37 of the Administrative Appeals Tribunal Act 1975; clinical notes from Mr Ryan’s general practitioner; a report of an audiogram performed on Mr Ryan by Dr Loane on 14 August 1992; and a report, Traffic Engineering Overview, into the crash involving Jack Ryan at Towradgi on 21 July 1999, compiled by Jamieson Foley, consulting forensic engineers, on 18 November 2008, at the request of Mrs Ryan’s solicitors.

22.     Dr Scoppa gave evidence that hearing loss is essentially conductive, which is temporary, or sensorineural, which is permanent.  Classical causes of sensorineural hearing loss include congenital conditions, degenerative diseases including Meniere’s disease, and acute or chronic trauma.

23.     Based on the pattern of hearing loss shown on the audiogram in 1992, Dr Scoppa concluded that Mr Ryan had moderate to severe hearing loss at that time due to acute trauma; a small percentage of the loss would be due to aging.  In response to questioning, Dr Scoppa agreed that an exploding grenade could cause acute trauma leading to hearing loss and, depending on the circumstances, gunfire could do the same. 

24.     Dr Scoppa noted that Mr Ryan had been diagnosed with Meniere’s disease in 1992. Given the time between his service and the onset of his hearing loss, Dr Scoppa thought it quite possible that Meniere’s disease was the cause of his hearing loss, although it would not exclude some other cause.  However, he said, he could only speculate about the cause.  Although it was not raised, we note that there is no evidence pointing to any of the factors in SOP No 60 of 2006, Meniere’s Disease.  

25.     The basis on which the Board accepted that Mr Ryan’s hearing loss was war-caused is not clear from its written reasons.  We are not bound by any finding of the Board but we have looked to its reasons to see if we can find any evidentiary basis for its conclusion that might assist us. 

26.     The Board on the first occasion noted that “although there was no direct evidence on the issue, [it] considered that the military training received by the veteran in March 1944 would be more likely than not to have involved exposure to an implosive noise of at least 130dBA without adequate ear protection before the clinical onset of sensorineural hearing loss”. 

27.     The Board on the second occasion simply stated that it accepted that Mr Ryan “would have been exposed to noise during his operational service and that would have caused his loss of hearing”. 

28.     We can find no evidence pointing to the conclusion arrived at by the Board.  There is no evidence in Mr Ryan’s records of service which point to his exposure to noise as contemplated by the SOP.  All we know is that was overseas in Morotai for three months from May 1945.  There is no evidence of what happened there.  His records show he was attached to a transport unit.  There is no evidence pointing to his being subjected to gunfire or similar trauma, or even to the likelihood of that occurring.  If he was, there is no evidence in the material pointing to possible decibel levels or ear protection.  There is a complete absence of any evidence pointing to such exposure.

29.     For a hypothesis to be reasonable requires more than a mere possibility; it cannot be fanciful, unreal, too tenuous or remote: East v Repatriation Commission (1987) 16 FCR 517. It must be “fairly raised by the material” as opposed to being merely “postulated on the basis of speculation and conjecture”. It will be “neither pointed to, nor raised, unless it emerges both obviously and directly from the evidence in question: Hill v Repatriation Commission (2005) 85 ALD 1 at 19.

30.     Considering all of the material before us, we are not satisfied that there is material in the evidence before us that points to a connection between Mr Ryan’s hearing loss and his service.  It follows that the hypothesis contended for by Mrs Ryan is not reasonable. 

31.     Even if the material before us pointed to a connection between Mr Ryan’s hearing loss and his service, it does not point to a connection with the circumstances of his kind of death.

32.     Mrs Ryan contends that only two possibilities present themselves: either Mr Ryan deliberately put himself in the path of the oncoming vehicle or he was killed accidentally.  She contends there is no evidence pointing to the first possibility, leaving only that he failed to apprehend the approaching vehicle on account of his hearing loss.

33.     The report of Jamieson Foley analyses the circumstances of the accident in detail.  In relation to noise, it noted a range of variables associated with the “acoustic observability of an oncoming car”, including other traffic, which may or may not have masked the noise of the car that hit Mr Ryan.  These would need testing under similar conditions to that of the accident before a precise judgment could be made.

34.     According to the coroner’s report, it is not clear whether Mr Ryan had his hearing aid in or not at the time of the accident.  If he did, it is possible, according to Mrs Ryan, that it was turned down, but we have no evidence either way.  There is no evidence, for instance, about whether other factors might have masked the noise of the oncoming car.  We note that information put out by the Queensland and Western Australian Governments refers to the range of increased risks faced by elderly pedestrians.  It is possible to conjecture about what happened but no more.     

Did Mr Ryan’s death result from serious default or wilful act on his part

35.     It is not strictly necessary to determine this question because the claim fails for the reasons set out above.  However, the Commission has pressed the point and we will deal with it briefly.

36.     Section 8(1) does not apply if a veteran’s death resulted from his serious default or wilful act that happened after his war service: s 8(3). 

37.     The issue is raised in this case because, according to the police report of the accident, Mr Ryan crossed the Northern Distributor near Wollongong a short distance south of the marked pedestrian lines and against a “Don’t walk” sign; witnesses reported that he was walking with his head down; the car which hit him had the green light; the accident occurred at about 6.15am, before dawn; the street lights were still on; the car had its headlights on.  The report concludes that Mr Ryan was believed to be at fault. 

38.     The Board determined that s 8(3) was engaged because it was a serious default on Mr Ryan’s part to cross a busy road against a Don’t Walk sign.  In the current proceedings, the Commission contends his conduct constituted a wilful act on his part. 

39.     The Commission contends that Mr Ryan intentionally went for a walk on 21 July 1999 and placed himself in a dangerous situation, on a busy road in traffic conditions which he knew well and that there is no evidence that he did so unintentionally or was coerced.  In so doing, the Commission contends, he committed a wilful act which led to his death.  We do not agree.

40.     “Wilful” connotes conduct that it intentional, or that at least apprehends its consequences.  In McPherson v Repatriation Commission [1989] FCA 84, Moreling J said, at [18]:

In some contexts, “wilful” may mean no more than deliberate or intentional, as distinct from unintentional.  But “wilful” is more commonly used in modern speech of bad conduct or actions than of good … .  [It] connotes conduct that is blameworthy and deserving of serious censure. … The effect of depriving a veteran of a pension to which he is otherwise entitled is to penalise him severely.  The legislature cannot have intended that such a severe penalty should be visited upon a veteran in the absence of conduct warranting severe condemnation.

41.     In Boral Resources v Pyke (1990) 93 ALR 89, Thomas J considered the meaning of “serious or wilful misconduct” in the context of whether an employee breached a condition of his contract of employment in driving after drinking. The context was different in that “misconduct” of itself connotes culpability but the distinction that Thomas J drew between wilful misconduct and negligence is relevant. He said (at 97):

I do not think there can be any doubt at all that wilful misconduct is something entirely different from negligence, and far beyond it, whether the negligence be culpable, or gross, or howsoever dominated.  There must be the doing of something which the person doing it knows will cause risk or injury.

42.     The Commission asks us to conclude, from the fact that Mr Ryan went for a walk on a route he knew well and crossed the road against a Don’t Walk sign away from the pedestrian crossing when there as a car approaching, that he must have wilfully placed himself in that situation.  It may be possible to infer, from the circumstances in which it occurs, that an act is wilful but we do not accept that we can do so in this case.

43.     According to Mrs Ryan, her husband was a happy person who had no reason to do himself harm, and there is nothing in the evidence to suggest otherwise.  We have no way of knowing his state of mind just before the accident and we do not know how he came to walk in front of the oncoming car that morning.  No one knows if he saw the Don’t Walk sign, or saw or heard the oncoming car, let alone whether he chose to ignore them.  Age might have been a factor; perhaps he was distracted by something; perhaps he was absent-minded.  We cannot know.  His death may be inexplicable but that is very different to concluding that it was the result of his wilful act.     

44.     Had Mrs Ryan’s claim succeeded otherwise, we would not have found it excluded on this ground.

Conclusion

45.     We are not satisfied that a reasonable hypothesis is made out connecting Mr Ryan’s death with his service.  We affirm the decision under review.

I certify that the 45 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ............[sgd]...................................................................
           Diana Weston  Associate

Date of Hearing  15 March 2010

Date of Decision  31 March 2010

Representative for the Applicant  Mr Andrew Kemp, Kemp & Co Lawyers

Counsel for the Applicant:  Mr Mark Vincent

Representative for the Respondent:               Mr Tim O’Reilly, Department of Veterans’ Affairs