Towns and Repatriation Commission
[2003] AATA 457
•22 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/308
VETERANS APPEALS DIVISION ) Re THELMA JEAN TOWNS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell Date22 May 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the veteran’s death was war caused with effect from 1 September 2001. [SGD] Ms N Bell
Member
CATCHWORDS
VETERANS’ AFFAIRS – whether the veteran’s death was war caused – sudden unexplained death – nexus between the veteran’s death and war caused condition – reasonableness of hypothesis – not fanciful, impossible or incredible – decision set aside
Veterans’ Entitlements Act 1986 – ss 120, 120A
Repatriation Statement of Principles Instrument No.99 of 1996 concerning Sudden unexplained death as amended by No.185 of 1996 and No.18 of 2002
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 74 ALR 518
Bull v Repatriation Commission (2001) 188 ALR 756
Elliott v Repatriation Commission [2002] FCA 26
Re Dell and Repatriation Commission (1986) 9 ALD 596
REASONS FOR DECISION
May 2003 Ms N Bell 1. This is an application by Mrs Thelma Jean Towns (“the Applicant”) for review of a decision by the Repatriation Commission (“the Respondent”) dated 21 April 1999 to refuse the Applicant’s claim that the death of her husband was war caused within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”). The decision of the Respondent was reviewed and affirmed by the Veteran’s Review Board on 17 October 2001.
2. At the hearing before the Tribunal the Applicant was represented by Mr Christian Vindin of Counsel and the Respondent was represented by Mr Jim Marsh, an advocate from the Repatriation Commission. The following documentary evidence was before the Tribunal.
Exhibit No.
Name of Documents
Dated
TD1
T-Docs T1-T13 pp 1-62
A1
Applicant’s Statement of Facts and Contentions
12/12/2002
A2
Statement of Applicant
4/6/2002
A3
Medical Report from Dr Altman
10/9/2002
R1
Respondent’s Amended Statement of Facts & Contentions
18/2/2003
R2
Respondent’s Coroner’s Court Transcript
6/11/20 02
BACKGROUND
3. It is common ground between the parties that the veteran rendered operational service in the Australian Army between 1 October 1943 and 4 November 1946.
4. It is also not in dispute that the veteran suffered Post Traumatic Stress Disorder/Depressive Disorder/Alcohol Abuse, Bilateral Sensorineural Hearing Loss and Solar Keratoses and Basal Cell Carcinoma and that these are accepted war caused disabilities. It is also common ground that should this application be successful the date of effect for entitlement would be 1 September 2001.
5. It is also common ground that the veteran died on or around 12 August 1998 from natural causes aetiology unknown, according to the coronial inquest held on 26 August 1999. The veteran had been reported missing and his body was found in bushland near Brooklyn on 1 October 1998. The veteran had been staying with his daughter in East Maitland prior to his disappearance.
6. It is also not in dispute that the veteran and the Applicant suffered a major financial loss in about 1996.
ISSUES
7. The issue for the Tribunal to consider is whether the veteran’s death was war caused. The Applicant contends that the deceased’s death was a sudden unexplained death and as such attracts the Statement of Principles (“SoP”) concerning Sudden unexplained death No. 99 of 1996, as amended by No. 185 of 1996, and No. 18 of 2002. In the alternative, the Applicant contends that, if the SoP does not apply to the circumstances of the veteran’s death then regard must be had to section 120(3) of the Act and the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408, Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission v Bey (1997) 79 FCR 364 and East v Repatriation Commission (1987) 16 FCR 517.
8. Initially the Applicant raised the possibility, in her Statement of Facts and Contentions, that the veteran took his own life. However this was not pursued by the Applicant at the hearing.
LEGISLATION
9. The relevant legislation in this application is the Veterans’ Entitlements Act1986, and in particular sections 120 and 120A. These sections are set out later in this Statement of Reasons. The SoP relevant to this application is SoP No. 99 of 1996, as amended by No. 185 of 1996, and No. 18 of 2002, concerning sudden unexplained death. Relevantly, that SoP says:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about sudden unexplained death.
(b) For the purposes of this Statement of Principles, “sudden
unexplained death” means non-traumatic death which occurs
unexpectedly within 24 hours of first onset of symptoms or signs in the
absence of a disease or illness which could account for the death at that
time, attracting ICD code 798.1 or 798.2.
…
Factors that must be related to service
4. The factors set out in at least one of the paragraphs 5(b) to 5(m) in clause
5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting sudden unexplained
death with the circumstances of a person’s relevant service are:
(a) undergoing relevant service at the time of sudden unexplained
death; or
(b) experiencing at least one severe psychosocial stressor within the
24 hours immediately before sudden unexplained death; or
(c) undergoing strenuous physical activity within the 24 hours
immediately before sudden unexplained death; or
(d) suffering a blow to the chest within the 12 hours immediately
before sudden unexplained death; or
(e) being morbidly obese at the time of sudden unexplained death; or
(f) having a blood alcohol content of at least 0.15 percent at the time
of sudden unexplained death; or
(g) suffering from diabetes mellitus at the time of sudden unexplained
death; or
(h) suffering from hypertension at the time of sudden unexplained
death; or
(j) being treated with non potassium-sparing diuretics within the
fourteen days immediately before sudden unexplained death; or
(k) suffering from epilepsy at the time of sudden unexplained death; or
(m) using cocaine within the 24 hours immediately before sudden
unexplained death.
…
“severe psychosocial stressor” means an identifiable occurrence that
evokes feelings of substantial anxiety in an individual or which is
perceived as stressful, for example, being shot at, experiencing a loss such
as divorce, separation, severe illness or injury, assault, legal problems,
loss of employment, major financial problems, death or serious injury in a
close friend or relative,…”
APPLICANT’S EVIDENCE
10. The Applicant provided a written statement to the Tribunal dated 4 June 2002 (Exhibit A2) and gave oral evidence to the Tribunal. The Applicant married the veteran in 1951. The Applicant said that the veteran never talked about his war experiences. The veteran initially worked as a bricklayer’s labourer and then moved into dairy farming. At this point the veteran began to suffer from severe migraines. The Applicant and her husband then bought a motel and remained in this line of work until their retirement in around 1989.
11. At about the time of their retirement the Applicant and the veteran invested in a timber business, a decision which was made by the veteran. The Applicant stated:
“We put some money into the timber business before we sold the motel, and then after we sold we put little bits of money in at a time. While we were overseas, money was appropriated from our bank account without our knowledge and within four years we’d been taken for one and a half million dollars. The experience of losing so much money was dreadful but I think what really affected Mack was the way it was done”.
12. After this the veteran became very depressed. He blamed himself for the loss of the money. The Applicant stated “we never got our money back” and that “we eventually had to give up trying to recover our loss when we ran out of money”. The veteran was put onto tablets for depression and became more quiet and withdrawn. The Applicant says “we got used to being virtually pensioners with not a lot of money, but I wonder if that didn’t directly drive him into a deeper depression”.
13. The last time the Applicant saw the veteran was one week before he disappeared. The veteran was staying with their daughter in East Maitland to help with repairs. The veteran left to go to visit friends in Sydney and didn’t return. His body was found in bushland not far from Brooklyn and the veteran had been dead for seven to eight weeks when he was found. The Applicant stated in cross-examination that she had spoken to the veteran on the phone on the day before his disappearance.
DR ALTMAN’S EVIDENCE
14. Dr Graham Altman, Consultant Psychiatrist, prepared a report (T 3, p.18) for the veteran’s earlier claim for PTSD, dated 10 March 1997. That report noted that the veteran suffered from nightmares, recurrent distressing thoughts, flashbacks, felt detached from others, was a loner, had difficulty showing affection, suffers from sleep disturbance, had poor concentration, was generally irritable and presented a number of depressive symptoms. The report made no mention of the loss of $1.5 million and did not discuss the impact of that loss on the veteran.
15. Dr Altman provided a further report, dated 10 September 2002 (Exhibit A3). He stated that his last appointment with the veteran had been on 7 March 1997 and that his ongoing psychiatric treatment was to be provided by his general practitioner.
16. Dr Altman described, in his report, a telephone conversation he had had with the Applicant who told him that the veteran had told his daughter that he was going to Sydney to see someone and would be away for one or two nights. He was not heard of again until 1 October when his body was found in the bush near Brooklyn. Dr Altman reported that the Applicant told him that “the clothes that he wore were not the clothes he would wear to Sydney. He had on a pair of very faded old jeans – a checked shirt and a coat. (Normally) he would have worn a shirt and tie and a jacket and leather shoes and not joggers – (and ) in a bag they found near him there were no undies and they said there was nothing to indicate he was going to be staying overnight – there was no water (with him)”.. Dr Altman reported the Applicant telling him that the veteran had been disinterested with things, introverted and loath to leave the house and that her daughter had told her that on one occasion when she returned home she had found the veteran lying on the floor in the foetal position. Dr Altman said these developments suggested deterioration and increasing depression.
17. Dr Altman was of the opinion that the loss of $1.5 million and the manner in which it was lost was a severe psychosocial stressor and that as such factor 5(b) of the SoP regarding sudden unexplained death was met. Dr Altman also stated:
“Mr Towns’ war-related Post-traumatic Stress Disorder (and associated Major Depression) would definitely have made him more vulnerable to suffering psychologically from psychosocial stressors. In my opinion it is a reasonable hypothesis that Mr Towns’ war caused Post-traumatic Stress Disorder could have worsened the impact of the aforementioned psychosocial stressors to the point of causing his sudden unexplained death.”
18. Dr Altman expressed the view that PTSD and depression makes one less likely to get over stressors and makes the impact of stressors worse and likely to aggravate the underlying conditions. He also suggested that, having been depressed for the last few months, the veteran may have left the train at Brooklyn in a depressed state of mind in which he wandered off with a lack of care for himself in a strange place. He noted that the veteran’s body was found in isolated rugged bushland, that he had recently been observed lying on the floor in foetal position, that he did not leave in his normal dress for a trip to Sydney and that he had none of his usual belongings with him. He said that severe depression increases the risk of harm through neglect and lack of self-care.
transcript of coronial inquiry
19. The transcript of the coronial inquest into the veteran’s death (Exhibit R2) shows that the inquest received the following evidence:
- statement by Mrs Thelma Towns (Applicant)
- statement by Miss Fiona Towns (daughter of the veteran and Applicant)
- evidence by Detective Senior Constable Wayne George Starling
- evidence by Senior Constable Scott Anthony Mostran
- evidence by Graeme Allan Hicks (Regional Business Manager, National Australia Bank)
- evidence by Dr Thomas Howard Godfrey Oettle (Pathologist)
20. The Coroner’s formal finding was:
“My formal finding in relation to Mr Towns’ death is this. That Mack Cameron Towns died on or about 12 August 1998 in bushland south of Brooklyn township and that he died of natural causes, the aetiology is unknown. That is we do not know why he died, but on the balance of probabilities he has died of natural causes. It may well have been that the fight that he had over the years took its toll but it is almost ironic that he was found a day before his 74th birthday which is quite an interesting date if you really think about it.”
21. The Coroner found that there was nothing to indicate that the veteran was clinically depressed but he may have been at his “wit’s end having tried to pursue some justice and dignity in relation to the money matter for some years”.. The Coroner found there was nothing to indicate that the veteran had an intention to take his life or that he committed suicide. The Coroner raised the possibility that the veteran may have had a heart attack but stated that there was insufficient evidence to prove this. The Coroner found that the veteran was not murdered or interfered with. The Coroner also put forward the possibility that the veteran had taken himself to this point in order to “soak in the view”, given that the veteran was a talented artist and being frustrated may have decided to visit the beautiful area around Brooklyn.
22. In evidence to the coronial inquest Dr Oettle, Pathologist, said that during the autopsy performed on the veteran he found a trace of Zoloft in the veteran’s body. Dr Oettle stated that this was not unusual or exceptional and that no person has ever died solely from using Zoloft. No other drugs were found in the tissues analysed. Dr Oettle also stated that it would be difficult to find a naturally occurring substance such as a snake bite or spider bite as these would decompose in the same way as bodily tissue. Dr Oettle could not make any definite finding in relation to the veteran’s heart due to the decomposition of internal organs. The doctor also stated that the position in which the deceased was found was consistent with a collapse or fall and that there had been no apparent attempt to hide in a sheltered spot.
SUBMISSIONS
23. Mr Vindin, for the Applicant, submitted that, on one interpretation of the SoP, the Applicant’s death is an unexplained death within the definition of that term in the SoP, in that there is no evidence of trauma. The terms of the definition itself, however, make it difficult, on any contested facts, to meet that definition.
24. The Tribunal asked the parties to assist it in its interpretation of the definition in the SoP and they undertook to provide the Tribunal with further submissions on the issue if, after further consideration, assistance could be provided.
25. Mr Vindin submitted that veteran’s death meets factor 5(b) in the SoP (experiencing at least one severe psychosocial stressor within the 24 hours immediately before sudden unexplained death) by virtue of his reaction, in the 24 hours before his death, to the stress of his financial demise, which stress was, in turn, exacerbated by his accepted war caused disabilities of PTSD/Depressive Disorder/Alcohol Abuse.
26. In the alternative, Mr Vindin submitted that, if the SoP has no application to the veteran’s death, then the hypothesis outlined by Dr Altman should be considered by the Tribunal to be reasonable. He further submitted that the lack of certainty surrounding the veteran’s death means that it cannot be satisfied beyond reasonable doubt that his death was not war caused.
27. Mr Marsh, for the Respondent, submitted that the mode of death of the veteran does not fit with the definition of unexplained death in the SoP given that there were no “symptoms” present in the veteran in the 24 hours before his death. He also submitted that factor 5(b) of the SoP must be related to service and the event that gave rise to any aggravation of the veteran’s PTSD or depression, that is, the veteran’s financial loss, was not related to his service.
28. Mr Marsh submitted that the Coroner’s finding merely raises a series of unknowns and that none of the assumptions or speculations put forward by the Applicant can be said to be reasonable.
29. At the request of the Tribunal Mr Marsh made some inquiries after the conclusion of the hearing, into the origins of and any material explaining the definition of “sudden unexplained death” in the SoP. He was unable to obtain any useful further information and submitted that the “symptoms and signs” referred to in that definition are simply a reference to “symptoms and signs” of some disease that did not persist for more than 24 hours prior to the death. He then pointed to the dearth of material concerning the circumstances of the veteran’s death, including the exact date of death, and submitted that there is insufficient evidence to allow a finding, on balance, that “sudden unexplained death” was the kind of death suffered by the veteran.
30. Mr Marsh also submitted that given the manifest difficulty in interpreting the definition of “sudden unexplained death” in the SoP, then the “old” law should apply and the veteran’s death should be treated as a non – SoP death. On this matter he submitted that the hypothesis of connection with service is not pointed to by anything in the material before the Tribunal and is merely left open by the absence of evidence.
Consideration
31. Section 120 of the Act provides:
“Section 120 – Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or 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) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;
(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) In this section:
(b) a reference to hazardous service shall be read as a reference to service in the Defence Force of a kind determined by the Minister for Defence, by instrument in writing, to be hazardous service for the purposes of this section.”
32. In Byrnes (supra) at 571 the Court set out the steps to be taken in applying section 120:
“The position may be summarised 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 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 claims 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.”
33. It is not in dispute that the veteran died, in the bush in rugged terrain, on or about 12 August 1998 and that the cause of his death is unknown. It is also not in dispute that the veteran had war caused PTSD and suffered a serious financial loss in the 1990s.
34. The Tribunal accepts, on the basis of Dr Altman’s evidence and the evidence of the Applicant, that the veteran was suffering from depression in the months before he died.
35. SoP No. 99 of 1996 defines “sudden unexplained death” as:
“non-traumatic death which occurs unexpectedly within 24 hours of first onset of symptoms or signs in the absence of a disease or illness which could account for the death at that time, attracting ICD code 798.1 or 798.2.”
36. The Coroner found the veteran’s death to be non-traumatic but there is no evidence before the Tribunal of the first onset of any identifiable symptoms of any kind within 24 hours before the veteran’s death. The SoP therefore can have no application to the circumstances of the veteran’s death on any interpretation of the definition in the SoP.
37. It is therefore necessary to look at the hypothesis put forward by the Applicant and to consider it outside the scope of the SoP. That hypothesis was drawn from the evidence of Dr Altman who ventured that the veteran was depressed because of financial loss, that his depression was exacerbated by and had a more profound effect because of his war caused PTSD and that his depression caused the veteran to be neglectful and to fail to take care in the strange surroundings in which he was found. It was hypothesised that this in turn led to his death.
38. The reasonableness of the hypothesis must now be considered. In so doing the Tribunal had regard to a number of decisions of the High Court and the Federal Court.
39. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said at 414:
“… a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature” (Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 306). Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or tenuous (East v Repatriation Commission (1987) 16 FCR 517 at 532).
40. In East v Repatriation Commission (1987) 74 ALR 518 at 533 the Full Federal Court agreed with the Tribunal’s analysis in Re Dell and Repatriation Commission (1986) 9 ALD 596 where it said:
“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.”
41. The Court concluded at 534:
“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.”
42. In Bull v Repatriation Commission (2001)188 ALR 756 at 761 the Full Federal Court said of the decision in East (supra):
"[18] It is important to understand the following about East.. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis …
[19] Before proceeding any further two comments are appropriate. First, it should be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury or death with the circumstances of service. Secondly, the phrases used by the court such as “not obviously fanciful”, “not impossible”, “not incredible”, “tenable”, “not too remote” and “not too tenuous” are useful elucidators of the meaning of “reasonable”. This is especially so given the subtle range of meaning of the words and phrase “reasonable”, “unreasonable” and “not unreasonable”. Much depends on context and purpose. However, the words of elucidation should not be substituted for the words of the statute: see generally the comments of the Full Court in National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562 at 571 [36]. What is required of the decision-maker by s 120 (3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.
…
[21] There is no doubt that the tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509.
[22] The formation of the opinion called for by s 120 (3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, above, at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented.
[23] If the tribunal examined all the material and if the tribunal followed the correct approach to its task under s 120 (3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed: R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403; Foley v Padley (1984) 154 CLR 349 at 353, 370; 54 ALR 609; Buck v Bavone (1976) 135 CLR 110 at 118–19; 9 ALR 481; Enfield City Corporation v Development Assistance Commission (2000) 199 CLR 135 at 150 [34]; 169 ALR 400. The “reasonableness” of the formation of the opinion embodied within this proposition should be understood as saying no more than did Starke J in Boucaut Bay Co (in liq) v Commonwealth (1927) 40 CLR 98 at 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57 when he said:
… He must not act dishonestly, capriciously or arbitrarily … So long, however, as the Minister acts upon circumstances … giving him a rational ground for the belief entertained …
[24] Put another way, the opinion is to be honestly held and not reached capriciously or arbitrarily and it must not be irrational: Boucaut Bay, above, R v Connell, above, at 432, Federal Commissioner of Taxation v Bayly (1952) 86 CLR 506 at 510; Buck v Bavone, above, at 118–19.
[25] If such circumstances are displayed, a basis for curial intervention is laid out. In these circumstances there is a failure of jurisdiction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275–6; 136 ALR 481; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; 142 ALR 622; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650–7; 162 ALR 577 and there is an error of law entitling the court to set aside the decision.”
43. In Elliott v Repatriation Commission [2002] FCA 26 Stone J discussed the way in which the Tribunal must consider and analyse the material before it when considering whether a reasonable hypothesis exists (at pars 25 –26) :
“I do not accept that this analysis of the material involved the Tribunal in illicit fact finding. In attempting to determine if the material before the Commission raises an hypothesis connecting the veteran’s condition with the particular service, and if any such hypothesis is reasonable, the Tribunal was required to consider and analyse that material. This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis.
In this case the elements of the ‘cause of action’, that is essential elements of the hypothesis, could not be made out because, in the Tribunal’s opinion, the material did not give rise to an hypothesis connecting the applicant’s lumbar spondylosis with the condition of his knees. The only material before the Tribunal that allegedly raised a link between the two conditions was Professor Sambrook’s report and subsequent letter. The Tribunal did not accept this interpretation of the material but regarded the reference to such a link as purely speculative and, for reasons already described, not consistent with the relevant SoP. To the extent that malalignment of the knee joints was raised in the Professor’s report it was connected not with the applicant’s service but with a congenital condition that was independent of his operational service. The Tribunal was entitled to form this opinion on the material before it. “
44. The starting point for the Tribunal’s consideration of the hypothesis put by the Applicant is its finding that the veteran had war caused PTSD, suffered a serious financial loss in the 1990’s and suffered depression in the months before he died, in rugged bushland, of unknown causes.
45. There is material before the Tribunal to the effect that the veteran was found lying in foetal position days before he left his daughter’s home with the stated intention of visiting Sydney for a few days. There is also material to the effect that the bag found with the veteran’s body, which was said to have been dressed inappropriately for a trip to Sydney, was empty of the belongings that would be expected to be taken by the veteran on a trip to Sydney. There is also evidence to the effect that he carried no water.
46. Dr Altman’s evidence was that depression increases the risk of harm to a person through neglect and lack of self-care. On one view, the veteran having gone into rugged terrain without water or provisions or additional clothing and without advising anyone of where he was going points to a lack of self care and a disregard for his own safety.
47. Dr Altman’s evidence was also that PTSD and Depressive Disorder (both war caused conditions) make one less likely to get over stressors and increases their impact both generally and in aggravation of the underlying conditions. On the basis of this expert evidence it can be posited that there is a nexus between the veteran’s death arising out of his own neglect which arose, in turn, out of his depression, itself a war caused condition. In addition, it can be posited that the veteran’s depression, prompted by his financial loss, was more severe because of his underlying war caused conditions of PTSD and Depressive Disorder.
48. The Tribunal is mindful that:
“… 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.” (Re Dell and Repatriation Commission, supra at 598)
49. Dr Altman’s expert evidence was that it is a known medical fact that depression may give rise to neglect of oneself leading to harm. The exact circumstances of the veteran’s death remain unknown but there is material before the Tribunal that points to the veteran having placed himself in a dangerous situation (rugged bushland) with no precautions taken as to his safety (no water, provisions, clothing or notice to others of his whereabouts). The lack of material before the Tribunal as to the exact circumstances of the veteran’s death and its direct cause does not, in the Tribunal’s view, stand in the way of the reasonableness of the hypothesis put by the Applicant and does not render it fanciful, impossible or incredible although it is theoretical. In the Tribunal’s view, the material before it gives rise to the hypothesis.
50. Finally, the Tribunal must consider whether there is evidence before it establishing beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's death was war caused. Given the lack of evidence surrounding the direct circumstances of the veteran’s death, there is no evidence to establish, beyond reasonable doubt any fact that disproves the hypothesis. It follows that the hypothesis is reasonable and the veteran’s death was war caused.
Determination
51. The Tribunal sets aside the decision under review and in substitution therefor determines that the veteran’s death was war-caused with effect from 1 September 2001.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: .......................................................................................
AssociateDate of Hearing 19 February 2003
Date of Decision 22 May 2003
Counsel for the Applicant Mr C Vindin
Solicitor for the Applicant Ms Tamara Tipper, Dibbs Barker GoslingAdvocate for the Respondent Mr J Marsh
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