Vicki Chaney and Repatriation Commission

[2015] AATA 286

[2015] AATA 286

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2013/6594
Re	Vicki Chaney
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin, QC, Deputy President
Date	1 May 2015
Place	Sydney

The decision under review is affirmed.

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

The Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – widow’s pension – whether veteran’s death was connected to service – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 ss 69, 70, 120, 196B

CASES

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Re Gardiner and Repatriation Commission [2007] AATA 1330
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
Walsh v Rother District Council [1978] 1 All ER 510

Wedderspoon v Minister of Pensions [1947] KB 562

SECONDARY MATERIALS

Statement of Principles concerning joint instability No. 33 of 2010

Statement of Principles concerning moderate to severe traumatic brain injury No. 63 of 2012

Statement of Principles concerning osteoarthritis No. 14 of 2010 as amended

REASONS FOR DECISION

The Hon. Brian Tamberlin, QC, Deputy President

1 May 2015

1. This is an application by the widow of a deceased veteran for a review of a decision of the Respondent which was affirmed by Veterans’ Review Board on 18 November 2013 refusing her claim for a pension based on the death of her husband on 8 June 2012 at the age of 59 years. The Veterans’ Review Board was “reasonably satisfied” that the material before it did not raise a connection between Mr Chaney’s death and the relevant service as required by the Veterans’ Entitlements Act 1986 (the Act).

   BACKGROUND

2. The Applicant’s husband (the Veteran) served in the Australian Army from 1 May 1974 to 8 January 1998. This service is recognised as eligible defence service under s 69 of the Act.

3. Under s 70 of the Act wherever a death of a member of the Forces was defence-caused, the Commonwealth is liable to pay compensation to the dependants of the member in accordance with the Act.

4. Section 70(5) provides that the death of a member of the Forces shall be taken to be a defence-caused injury or a disease contracted by such member shall be taken to be if the death arose out of, or was attributable, to any defence service or peacekeeping service of the member.

5. Under s 196B if the Repatriation Medical Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to eligible war service or defence service, the Authority must determine a Statement of Principles (SoP) in respect of that kind of injury, disease or death, setting out the factors that must exist and which of those factors must be related to service rendered by a person before it can be said on the balance of probabilities that an injury, disease or death is connected with the circumstances of that service.

6. By section 196B(14) a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if, relevantly, it arose out of, or was attributable to, that service or was contributed to in a material degree by, or was aggravated by, that service.

7. Under s 120(4) the Respondent or the Tribunal must in making a determination or decision in respect of a matter arising under the Act decide the matter to its reasonable satisfaction.

8. The Applicant refers to the SoP concerning osteoarthritis No. 14 of 2010 (as amended) and also to the SoP concerning joint instability No. 33 of 2010. The Applicant contends that the Tribunal should find to its reasonable satisfaction within s 120(4) that the Veteran suffered osteoarthritis as a result of his service, and that this condition caused joint instability that ultimately caused him to fall and suffer blunt force injuries to his head and neck that caused his death.

9. The autopsy report for the Coroner (T-document T12, pp. 121-127) dated 6 August 2012 by Dr Irvine, pathologist, concludes that the direct cause of death was “blunt force injuries of head and neck”. There was space for recording antecedent causes but there are none specified.

10. The report summary in the Opinion reads as follows:

    This 59 year old man, Richard CHANEY, died of blunt force injuries of head and neck.

    Reportedly, the deceased was discovered by his son, unconscious lying on the ground in the back yard of his residence, at approximately 10:30 am, 8 June 2012. It appeared that the deceased had fallen from the roof of the single storey dwelling, a distance of approximately 2.4 meters. He had apparently been inspecting the recently repaired roof, and a ladder and a tube of silicone gel were found near the deceased. When found, the deceased had blood and a clear fluid (likely cerebrospinal fluid) emanating from his mouth and nose.

    Emergency medical services were summoned and found the deceased with a Glasgow Coma Scale (GCS) score of 3 (out of a possible 15) with fixed and delated pupils. He was intubated at the scene and arrived at Liverpool Hospital at 11:28 am.

    His possible medical history included atrial fibrillation (for which he was not apparently anti-coagulated), hypertension and arthritis or a degenerative condition of his knees.

    CT scans of the head, neck, chest and abdomen showed non-survivable brain injuries (with swelling) and high cervical (neck) fractures (CT scans were not available at the time of examination). He was treated with palliation and pronounced life extinct at 5:46 pm, approximately 6 hours following admission to hospital.

    Subsequently received medical records indicated that the CT scan of the head showed multiple facial and nasal fractures, severe cerebral oedema and scattered small cortical contusions. A CT scan of the cervical spine showed an odontoid fracture (second cervical vertebra) with anterior displacement and multiple foraminal and facet fractures.

    The family expressed interest in the state of the deceased’s knees. Plain x-rays were obtained and showed no obvious fracture or acute injury. A specialist radiologist was not available for interpretation of chronic conditions. The left leg appeared to possibly have a fracture at some level, as it was externally rotated and slightly shortened, but no fracture was identified on manual examination or on x-rays of the hips and knees.

    Toxicological examination of blood obtained @ 11:46 am, 8 June 2012 revealed no detectable alcohol and a low therapeutic/non toxic range concentration of metoclopramide (for gastric acidity). Ketamine and morphine were detected, almost certainly administered as part of medical treatment. No other common drugs of abuse or common prescription drugs were detected.

11. The summary of significant post mortem findings refers to blunt force injuries of the head, neck, trunk and extremities. Under the heading “other medical history” there is reference to atrial fibrillation, hypertension and degenerative joint disease, knee(s).

12. The Respondent contends that there is no SoP relevant which applies to circumstances where death is caused by “blunt force injuries of the head and neck”, but accepts that it is possible that the SoP concerning moderate to severe traumatic brain injury No. 63 of 2012 could apply in this matter but submits that no factor within the SoP is able to be causally related to the Veteran’s service. The Respondent notes that the fall happened 14 years after the conclusion of the Veteran’s service and if it is accepted that the Veteran had climbed the roof with known knee problems and a history of knee failure related falls then s 70(10) precludes compensation being payable.

    EVIDENCE

13. The Applicant gave evidence that she met her husband in 1982. He was then serving at Holsworthy where he completed most of his service. Her husband was very quiet and did not discuss his physical problems with her to any extent. She noted over the years that his left knee troubled him more than any other problem. He would take an early morning walk because he felt he needed to move to stop his legs becoming stiff. A pattern developed whereby he would come home early and relax, take a pain killer and go to bed. He used to go to a chiropractor but he thought that the treatment was aggravating the condition. The Applicant noted that in mid-November 2011 when they were at a club she saw that the Veteran’s left knee had come completely out of its socket and she watched him knock it back in. It was his left knee that gave him all the trouble and she noted that his left leg was much less substantial than his right leg. She also recollected that in December 2011 he could not hold his weight with his left leg and he slipped off the seat and down the steps of a bus. He had been a very fit man in previous years and until the early 1990s he would regularly run distances of five kilometres or more. He had an arthroscopy on his knee in about 1990. He would not use crutches as he did not want to be seen as disabled.

14. The Veteran had fallen on a retaining wall a couple of months before his death but did not tell the family what had happened until he started to worry that he had broken his hip.

15. The Veteran discussed matters with his wife and just before his death they decided that because of his knees he should not do repairs around the house anymore. The Applicant believes that the Veteran waited until she had gone to work and then climbed up a ladder to check out that workmen had done a proper job on the roof.

16. Precisely what occurred at this time is not known as there was no one present, but it appears that he fell from the roof of his house, injured his head and died. The Applicant mentioned that the Veteran’s arm and wrist muscles were very strong and that if he had something to grab on he would not have fallen in her opinion.

17. Evidence was also given by Mr Crump who employed the Veteran in the years prior to his death and who noticed that his left knee definitely slowed him down in the last couple of years of his life. He noticed that the Veteran would limp placing his weight on his right leg, and when he was working and going up steps he would support himself with his arms on the rails because of pain in his left knee. He noticed that the Veteran massaged his knee like it was giving him grief.

18. The daughter of the Veteran gave evidence stating that her recollection was that in the last years of his life he would come home each day in pain and take relief for it. She stated that his knee would give way frequently and she saw this happen once a week or fortnight in the two years prior to his death. She recollects one occasion when he walked through the house and fell forward and was in excruciating pain.

19. The work colleague of the Veteran, Mr Hastie, first met the Veteran in 1987 and has known for many years that the Veteran had a problem with his left knee that started in his service, and recalls that he went on a health kick to lose weight because he believed it would help his knee problems. He considered that the Veteran was very fit and athletic, would go jogging and running regularly but he had to give this up because of troubles with his knee.

20. The Veteran injured his left knee playing rugby union for the regiment on 24 May 1977 and on 10 May 1978 he twisted his left knee playing touch football. As a result he developed osteoarthritis of the left knee and had ongoing knee problems. The osteoarthritis of his left knee is an accepted condition and is documented in the Veteran’s army medical documentation.

    LEGAL PRINCIPLES

21. The relevant provisions of the Act have been noted above. The legislation is beneficial in character and should be given a liberal interpretation.

22. As the High Court pointed out in Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40 at [27]:

    The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by the considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier.  A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

23. In his judgment Kirby J at [80] referred to a decision of Denning J in Wedderspoon v Minister of Pensions [1947] KB 562 at 563 where Denning J said:

    His weak heart and his sleeplessness were not the causes of his death, but only the circumstances in which the cause operated.  There were factors in the situation, but factors which fell short of being causes … The dose was taken … in his personal capacity …  The consequences of such an action are no more attributable to war service than the consequences of drinking too much or smoking too much or playing a game of squash.  The cases show when the cause of death or disablement lies in the man’s own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.

24. Kirby J continued at [82] to say:

    … The prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time.  In every case, it is necessary to postulate an outer boundary of liability.  According to the respondent, this is what the Tribunal did in finding that the appellant’s intoxication in the Mess was not “defence-caused” and did not arise out of, nor was it attributable to, any defence service.

25. In Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Mason J said at 168:

    There was no direct evidence which bore on the issue of causation.  But there are settled principles which, though difficult in their application, allow inferences to be drawn from proven facts in certain circumstances.  “Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves.” (Holloway v. McFeeters) What is required are circumstances which –

    “… do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture… All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.  By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”

26. The above remarks are apposite in the present circumstances.

27. It is clear that the connection with war service “need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is sufficient”: Walsh v Rother District Council [1978] 1 All ER 510 at 514.

28. In the Full Federal Court decision in Repatriation Commission v Law (1980) 31 ALR 140 the court said that it is sufficient to show “attributability” if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.

29. The common law tradition, as Mason CJ points out, is that “what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’”: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515.

30. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Federal Court noted that the effect of s 120(4) was to introduce the standard of proof required in civil litigation. It also noted that there was “a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other [hand]”. The civil standard requires a preponderance of probability or a balance of probabilities or a preponderance of evidence in favour of the existence of the particular fact or inference. The possibility of a contrary finding does not prevent a finding reached on the civil standard from being appropriate.

31. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 Lord Justice Wright said:

    … the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed.  The Court is therefore left to inference or circumstantial evidence.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

32. See also Re Gardiner and Repatriation Commission [2007] AATA 1330.

    CONSIDERATION

33. The evidence establishes in my view that the Applicant suffered from osteoarthritis and also from joint instability in the left knee at the time of his death. There was a history of the left knee giving way and of tender, swollen and unstable knee joints. The evidence directed to the left knee indicates that it would give him most of the trouble and could give way. The evidence also indicates that his left knee caused him to fall down, especially in the last years of his life and this problem was linked to his service.

34. However, there is no evidence that his left knee problem caused or contributed to his accident.

35. There was no one present to witness the fall of the Veteran from the roof and therefore a complete lack of any direct evidence as to what occurred. Nor is there any useful circumstantial or contextual evidence as to what occurred. The submissions to the effect that there was some connection between the joint instability and the death is therefore a matter of inference without any basis to back up the inference sought to be made in this case.

36. The Applicant has led some evidence that at the time of the accident, it is more likely than not there was no rain at the premises and indeed there was no evidence as to the roof itself being slippery or moist.

37. The evidence before the Coroner indicates that the Veteran had a history of atrial fibrillation and hypertension in addition to degenerative joint disease in the knees. There is no evidence of any breakage, fracturing or failure of the left knee consistent with that being a contributing cause of the death.

38. Some of the evidence from the medical records speculates that weakness of the left knee may have been the cause of the fall but there is no sound basis for such a conclusion and are no more than speculation. There is evidence that some x-rays were obtained but these show no fracture or acute injury. The left leg possibly had a fracture at some levels as it was externally rotated and slightly shortened, but no fracture was identified on manual examination or on x-rays of the hips and knees.

39. The medical history of the Veteran until the date of death indicates that he had cardiac arrhythmia, depression, glaucoma and hypertension.

40. In the absence of any evidence as to what occurred, the Applicant makes a suggestion that because of the history of joint instability and in the absence of any evidence that there was any other operative medical condition, then it should be concluded that the fall and death were consistent with failure of the left knee.

41. In my opinion, these attempts to infer that there was a connection between eligible defence service and the death in this case, in the absence of any indication whatsoever as to what happened at the time of death, is speculation and falls far short of a justification for reaching such a conclusion.

1. Accordingly, I am not satisfied that the material before me can support a conclusion to my reasonable satisfaction that there is any probative evidence that the death was defence-caused, in that it arose out of or was attributable to, in any way, solely or partially to any defence service.

   DECISION

2. The decision under review is affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President

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

Associate

Dated 1 May 2015

Date of hearing	27 February 2015
Counsel for the Applicant	Mr M Davies
Solicitors for the Applicant	Kemp & Co. Lawyers
Advocate for the Respondent	Mr T O’Reilly, Department of Veterans’ Affairs