Streatfield and Repatriation Commission
[2006] AATA 185
•1 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/292
VETERANS’ APPEALS DIVISION ) Re BERYL STREATFIELD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Professor Shearer, Senior Member
Dr John Campbell, Member
Date1 March 2006
Place Sydney
Decision The decision under review is affirmed
[Sgd] Professor Shearer, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS - War widow’s pension – Causal nexus between war injury and Veteran’s death – Reasonable hypothesis requires more than a mere possibility
Veterans’ Entitlements Act 1986
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82.
Bushell v Repatriation Commission (1992) 175 CLR 408
Spencer v Repatriation Commission (2002) 34 AAR 379
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Towns (2003) 38 AAR 77
McLean v Repatriation Commission 2001 FCA 1505
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
1. The applicant, Mrs Streatfield, is the widow of Mr. Allen Streatfield, (”the Veteran”), who was killed when struck by a passing vehicle as he was standing by the roadside. The fatal accident occurred on 14 May 1976. However, Mrs Streatfield argues that the reasons for her husband being struck by the vehicle related to a medical condition attributable to his war service between 1942 and 1946.
2. The immediate cause of the Veteran’s death was a fractured skull and brain injury resulting from the impact on him by the vehicle
3. The case for Mrs Streatfield rests on the contention that the Veteran suffered a head injury during his war service, that this injury caused him to develop serious headaches and dizziness after his period of war service, and that these headaches and the dizziness caused him to fall in front of the oncoming vehicle occasioning death.
4 The Repatriation Commission, (“the Respondent), in a decision dated 26 November 2002, rejected the applicant’s claim for a pension on the ground that the Veteran’s death was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (“the Act”). This decision was affirmed by the Veterans’ Review Board in its decision of 5 February 2004.
BACKGROUND
5 Shortly after joining the Army at the age of 18 the Veteran took part in a passive air defence training exercise. Owing to the evening light he did not notice a clothes line extending across his path, and ran into it, rendering himself unconscious. According to Army records he was admitted to hospital on the day of the accident, 7 January 1942, and was discharged on 11 January 1942. The medical officer noted on admission “Somewhat confused and amnesed [sic] of accident. No mark on head.” The veteran served as a trooper, mainly in the 2/8 Australian Commando Squadron, in the South West Pacific theatre of operations. His medical examination on 10 January 1946, prior to discharge from the Army, recorded in addition to the incident of concussion in January 1942, dengue fever and dermatitis in August 1944. The Veteran himself, in answer to the written questions put to him on discharge, stated that he was not suffering from any ailments of any kind. However, somewhat contradictorily, the Veteran noted in answer to the question related to conditions caused by war service “dengue – dermatitis, due to tropical service”.
6 Mrs Streatfield gave evidence before the Tribunal. She stated that her husband suffered from bouts of malaria for the first few years after discharge from the Army and was in hospital on this account on a number of occasions, having been taken there by ambulance. He would frequently come home from work looking “dreadful and white”. He would take painkilling tablets such as Bex or Vincents, and would refuse to eat on these occasions. These attacks were often accompanied by dizziness and nausea. “Usually he would be all right the following morning”. The Veteran was a non-smoker and life-long abstainer from alcohol.
7 The Veteran’s history of treatment for malaria in 1946 and 1947 was evidenced by Department of Veteran’s Affairs documents contained in the Supplementary T Documents submitted to the Tribunal.
8 No medical evidence was available to the Tribunal concerning the Veteran’s history of headaches. Mrs Streatfield stated that her husband was “a strong man who hated being sick and would not complain when he was…He would rarely speak about the pain of his headaches and he refused to see a doctor. Occasionally I was able to convince him to see our family doctor, Dr. Kay, and he went to him a couple of times over the years for his headaches. However, I do not recall whether Dr Kay made any diagnosis or what his opinion was regarding Allen’s headaches.”
9 Mrs Streatfield stated further that her husband’s headaches and dizziness gradually became more frequent and worse. He had to take off time from work “a couple of times” because of his headaches. “Not long before he died [in the accident] Allen was getting the headaches very frequently and his head even started to shake ever so slightly during these times as well.”
10 An inquest into the death of the Veteran was held at the Coroners Court Glebe on 21 July 1976. The Coroner, sitting alone, declared and found that the deceased “died of the effects of head injuries sustained then and there when he was struck by a motor vehicle.” Evidence before the Coroner showed that the Veteran had been standing beside the roadway on Parramatta Road Haberfield, apparently intending to cross to the other side, in order to deliver some printed cards to Muirs Motors with whom he had business dealings. He had earlier parked his car in a side street. It was at about 6 pm, that is, at about sunset. The place where he had been standing was well lit. Parramatta Road is a busy road, and at that hour is a clearway. Traffic was heavy and moving fast, including in the lane immediately adjacent to the kerbside. The Veteran was standing behind a telegraph pole, and he may on that account not have been visible to oncoming traffic. There was no pedestrian crossing at the point where the Veteran was standing. The Veteran was struck by an oncoming van, and was thrown by the impact backwards about 15 feet on to the concrete footpath, sustaining a fatal head injury. The protruding rear vision mirror of the van driven by a Mr Hooi was subsequently found to be severely bent out of position. Mr Hooi was unable by reason of shock to give a coherent account of the accident to police, and gave no deposition subsequently to the Coroner. Three possible explanations of the accident were considered by the Coroner:
(a) the Veteran had stepped off the footpath into the path of the van;
(b)the Veteran had slipped on the downward sloping grass verge between the footpath and the gutter edge into the path of the van;
(c)the Veteran was still standing on the gutter edge when he was struck by the protruding rear vision mirror of the van.
11 Of these three explanations the Coroner regarded the first as the least likely, but he declined to make a formal finding of the cause of the accident.
12 The post mortem examination of the Veteran revealed no alcohol in the blood. The cause of death was stated to be fractured skull and brain injury.
THE MEDICAL EVIDENCE
13 Associate Professor Alastair J. Corbett, a neurologist, gave written reports and appeared before the Tribunal. Based on what he was told by Mrs Streatfield, Professor Corbett was of the opinion that the head injury to the Veteran, caused by the clothes line in 1942 could have been the cause of recurrent headaches thereafter:
“The veteran suffered an injury of sufficient severity to result in loss of consciousness and a period of post-traumatic amnesia of up to four days. This is a significant injury and at least 60% of patients suffer from headache following head injury of this type with migraine being a common form of post-traumatic headache. Post-traumatic headaches are persistent in about 20% of patients. Migraine headaches may persist occurring intermittently and at times frequently and severely over many years….Migraine headaches at their peak may result in the sufferer experiencing dizziness, including vertigo, disorientation, and at times frank confusion. At the time of the veteran’s fatal head injury his wife reports that he was experiencing frequent headaches with migraine characteristics. It is a reasonable hypothesis that migraine headache may have been a factor contributing to the veteran stepping off the kerb and suffering a fatal head injury and thus a significant factor contributing to his death.”
14 Professor Corbett also deposed that the post-mortem examination had revealed “patchy areas of subarachnoid haemorrhage especially involving the base of the brain where there were contusions involving mainly both temporal lobes in the left side of the brainstem….These findings are consistent with a severe head injury sufficient to cause death due to brain injury.” However, Professor Corbett did not in terms state that these findings were attributable in whole, or in part, to the head injury of 1942.
15 Professor James W. Lance, consultant neurologist, also gave a written report and was called by the respondent to give oral evidence before the Tribunal. He noted on an examination of the Veteran’s medical records during war service that there was no mention of any complaint of headache. From his interview with Mrs Streatfield he concluded that the Veteran’s headaches began in the 1950s and gradually worsened over time. He also noted from his interview with Mrs Streatfield that she remembered the Veteran’s saying, just before he left on the errand that led to his death, that he would be back early because they were planning to inspect a possible venue for a twenty first birthday party for one of their children. No mention was made of a headache at that time. Professor Lance continued:
“The history of Mr Streatfeild’s headaches is typical of migraine. I cannot find any evidence that he suffered from migraine during his war service. It appears more likely that migraine began early in the 1950s. The headaches were not associated with faintness or fainting and there is no evidence that he had a headache or was otherwise unwell before he fell or was struck by a vehicle in the fatal accident on 14 May 1976…..Iam unable to find any link between his tendency to migraine headaches and his death. …I have read the reports of Professor Corbett and I agree that the hypothesis is possible but, for the reasons detailed above, I do not consider it probable.”
16 In relation to the post mortem finding of subarachnoid haemorrhage in the brain, noted by Professor Corbett, Professor Lance commented “Distribution of the areas of subarachnoid haemorrhage clearly indicates that they were the result of head injury and not of a primary subarachnoid haemorrhage required to meet the diagnostic criteria….There is no evidence that the head injury Mr Streatieild suffered during his service made him in any way more susceptible to the injury of 14 May 1976.”
17 Before the Tribunal Professors Corbett and Lance gave evidence together, so that each could comment on the other. They were agreed that it was difficult in a case such as the present to separate possibility and speculation. They also agreed that the malaria suffered by the Veteran immediately after the war would not have been a cause of his subsequent headaches, unless accompanied by a reappearance of the parasites, and sweating.
THE APPLICANT’S CASE
18 Mrs Streatfield claims that her late husband’s death was war caused. It was contended by her that it is a reasonable hypothesis that his headaches were war-caused and that his death was caused by a migraine-induced dizzy spell or moment of disorientation when he fell into the path of a vehicle which struck him, while he was attempting to cross a road.
THE RESPONDENT’S CASE
19 The Respondent contended that there was no material pointing to a hypothesis of war-caused post-traumatic migraine, or to dengue fever or malaria, as linked to the injuries from which the Veteran died.
THE APPLICABLE LAW
20 Relevant provisions of the Act are as follows:
Section 14(1) provides:
“Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).”
Section 120 provides:
“(1) 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 Commission shall determine …that the death of the veteran was war-caused, …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(2) …
(3) In applying subsection (1) …in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)…
(b)…
(c) that the death was war-caused or defence-caused;
…if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person.
(4) …
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)…
(b)…
(c) the death of a person is war-caused or defence-caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) …”
Section 120A provides as follows:
“(1) …
(2) …
(3) For the purposes of subsection 120(3), a hypothesis connecting … the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of …the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)….
(b)….
(c) the kind of death met by the person;
………”
21 The above provisions of the Act cannot be said to be easy to understand and apply. They have been the subject of much interpretation. Most often quoted as guides to the proper approach are Byrnes v Repatriation Commission (1993) 177 CLR 564 and Repatriation Commission v Deledio (1998) 83 FCR 82.
22 In Byrnes, the High Court said (at 571):
“The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (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 reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
23 Section 120A, where it is applicable, will modify this procedure in forming an opinion on the reasonableness of a hypothesis by subjecting its consideration to relevant Statements of Principles or determinations of the Commission.
24 . In Deledio, the Full Federal Court said (at 91):
“(1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
(2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the ‘raised facts’) and if the hypothesis can be regarded as reasonable, assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
(3) Whether a hypothesis is reasonable is a question of fact. The decision- maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
25 The Full Court added further, in Deledio, the following passage in amplification of its analysis of the Act and by way of practical guidance to the Tribunal (at 97-98):
“1. The Tribunal must consider all the material which is before it and determine whether the 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 SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If a 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 ss 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.”
26 An important qualification needs to be made to the statement made obiter by the Full Court in point two of the passage quoted immediately above. As noted by Selway J in Repatriation Commission v Hancock (2003) 37 AAR 383, at 386, the suggestion in that passage that if there is no statement of principle “the application must fail” is clearly in error. “If there is no statement of principle or determination by the commission under s 180A(2) of the Act, then the question of causation falls to be determined under s 120(1) and (3) of the Act, rather than s 120A. This is made clear from the terms of s 120A(3) and (4). The result is not that the application necessarily fails. Rather the application would be dealt with in the manner discussed in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571” (quoted above).
APPLICATION OF THE LAW TO THE FACTS
27 As an anterior step to the application of the law to the present case, it is necessary for the Tribunal to determine, on the balance of probabilities, what kind of death the Veteran suffered. If there is a Statement of Principles [SoP] applicable to that kind of death, then the methodology of Deledio is to be followed. If there is no such SoP applicable, then the methodology of Byrnes is to be followed.
28 The applicant’s written Statement of Facts and Contentions contended that the Veteran satisfied factor 5(a) of the SoP concerning Migraine in that he was unable during, and after, his war service to obtain appropriate clinical management for that condition. The Applicant also relied on the closed head injury sustained during war service in January 1942 as constituting a fracture satisfying factor 1(a) of the SoP concerning Fracture, and being linked to the head injury suffered on 14 May 1976 by way significant contribution to the cause of the later fatal skull fracture.
29 However, it was contended by the Applicant at the hearing before the Tribunal, in the alternative, that the kind of death suffered by the Veteran, namely head injuries from a motor accident, was not subject to a relevant SoP. The hypothesis that war-caused headaches contributed to the Veteran’s falling in front of the vehicle that struck him therefore fell to be considered under section 120 of the Act, unaffected by section 120A. In other words this was a case to be decided along the lines of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. Cases were cited where the kind of death was found not to be the subject of a SoP and where the Tribunal or Court proceeded to consider a raised hypothesis under section 120 alone: Spencer v Repatriation Commission (2002) 34 AAR 37; Repatriation Commission v Hancock (2003) 37 AAR 383; Repatriation Commission v Towns (2003) 38 AAR 77.
30 It was contended by the respondent that if migraine were specifically hypothesised as the cause of the accident leading to death through head injuries there was an applicable SoP, which must be satisfied. This is Instrument No.74 of 1999 – SoP concerning Migraine. For the purposes of that SoP, “migraine” means:
“a neurovascular condition in which there are periodic attacks, lasting 4 to 72 hours, of a symptom complex typically consisting of headache that is pulsatile and aggravated by physical activity, accompanied by nausea, photophobia and phonophobia, and which symptom complex may be preceded by a prodrome of neurological symptoms comprising visual disturbances, sensory disturbances, motor weakness or aphasia, attracting ICD-10-AM code G43. This definition excludes cluster headache, tension-type headache and headache attributable to intracranial structural anomalies or systemic disease.”
31 Under the SoP the factor that must be related to any relevant service rendered by the Veteran is “inability to obtain appropriate clinical management for migraine.”
32 The difficulty for the applicant in relation to the SoP applicable to migraine is that there is no medical evidence that the Veteran suffered from such a condition, as defined in the SoP. The Veteran certainly suffered from headaches, as attested by his widow. These headaches were accompanied by nausea. But there is no evidence before the Tribunal regarding the other characteristics of migraine, as defined. Any “inability to obtain appropriate clinical management for migraine” was not evidenced, since the Veteran appeared not to have sought such management, except for occasional visits to the family doctor complaining of headaches, and for which ordinary analgesics were taken. The difficulty for the Applicant in establishing the applicability of the SoP concerning fracture is that even the report of Professor Lance, which is the more favourable report for the Applicant’s case, is incapable of supporting the conclusion that fracture was the Veteran’s “kind of death”. That report clearly indicates that death was due to brain injury sustained on 14 May 1976.
33 The Tribunal concludes, on the balance of probabilities, that the kind of death suffered by the Veteran was neither migraine nor fracture, but head and brain injuries inflicted when he was struck by a motor vehicle.
34 It is now necessary to turn to the broader “kind of death” contended for by the Applicant at the hearing before the Tribunal. The present case is similar to McLean v Repatriation Commission 2001 FCA 1505, where a Veteran was fatally injured during a tree-felling expedition by a dislodged boulder on a steep hillside, and where it was hypothesised that he was unable to move out of the way of the boulder because of a war-caused back condition. In that case the Veteran’s widow at first sought to establish the existence of lumbar spondylosis, in respect of which an SoP was in force, but was unable to satisfy the conditions of that Statement. The case was thus argued on an alternative hypothesis, involving an allegation of possible unspecified back injury. The Full Court of the Federal Court proceeded to consider the claim on that basis under section 120 of the Act pursuant to Byrnes.
35 The Tribunal in this case should proceed similarly, and consider the reasonableness of the hypothesis that the Veteran suffered from headaches of an unspecified kind, that the Veteran’s headaches were war-caused, and that they were connected with his being struck by a vehicle in the fatal accident that occurred on 14 May 1976.
36 In Repatriation Commission v Bey (1997) 79 FCR 364, the Full Court of the Federal Court held that:
“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..”
38 Did the Veteran suffer frequent headaches? And was he prone to headaches at or about the time of his death? The material before the Tribunal points to an affirmative answer to both questions, on the basis of the Applicant’s evidence.
39 A third question is raised: was there material before the Tribunal pointing to a disposition of the Veteran, at or around the time of his death, to have headaches of a degree that led to behavioural consequences such as stumbling or loss of balance? No such material was put before the Tribunal.
40 Is a reasonable hypothesis raised by the whole of the material before the Tribunal that the headaches suffered by the Veteran were connected with war-service? The evidence of Professor Corbett was argued to support this hypothesis, although he agreed at the hearing that it was difficult to separate possibility from mere speculation. Professor Lance, by contrast, was of the opinion that the migraine headaches began in the 1950s and not during war service. However, he did state that the hypothesis that they started during war service was possible, although in his view not probable.
41 Even accepting that the Veteran’s recurrent headaches amounting to migraine were war-caused, the crucial part of the hypothesis to be substantiated is that there is material pointing to the headaches having been present at the moment of the Veteran’s being struck by a vehicle and as having played a part in that event. On that question there is no material whatsoever pointing to the Veteran’s war-caused headaches having contributed to his death; there is merely speculation. For that reason the hypothesis cannot be considered reasonable.
42 For the above reasons it is not necessary to proceed with further analysis of the Deledio kind.
DECISION
43 The decision under review is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Margaret Driscoll Associate
Date/s of Hearing 1 December 2006
Date of Decision 1 March 2006
Counsel for the Applicant Mark Vincent
Solicitor for the Applicant Rebekkah Kemp
Counsel for the Respondent Greg Doube
Solicitor for the Respondent Katrina Harry
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