Zelma Taber and Repatriation Commission
[2009] AATA 504
•3 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 504
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2729
VETERANS' APPEALS DIVISION ) Re Zelma Taber Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Hon. Justice Brian Tamberlin, Deputy President Date3 July 2009
PlaceSydney
Decision The application is dismissed and the Delegate’s decision is affirmed.
.....................[sgd].........................
Deputy President Tamberlin
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim for war widows’ pension – whether death related to war service – entries in veteran’s service record – Sick List Record Card – whether reasonable hypothesis connecting veteran’s death with war service – decision under review affirmed – application dismissed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CITATIONS
Bull v Repatriation Commission [2001] FCA 1832
Byrnes v The Repatriation Commission (1993) 177 CLR 564 at 571
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Gardiner v Repatriation Commission [2007] AATA 1330REASONS FOR DECISION
3 July 2009 Hon. Justice Brian Tamberlin, Deputy President INTRODUCTION
1. This is an application to review a decision of the Repatriation Commission of 13 December 2007, as affirmed by the Veterans’ Review Board on 30 April 2008, that the death of Mr Edwin Taber (the veteran) was not related to service and that therefore a War Widows’ pension was not payable to the Applicant widow, Mrs Zelma Taber.
2. On 12 June 2007 Mrs Taber lodged a claim for acceptance of the death of her late husband as being “war service related”. Under the Veterans’ Entitlement Act 1986 (Cth) (the Act) for a claim to be accepted the cause of death must be related to a period of war service. It is common ground that Mr Taber had operational service in Word War II during the period 12 February 1942 to June 1946.
3. The Act provides that if there is a reasonable hypothesis raised on the material which connects the veteran’s death with a period of operational service, then the Commission must accept the claim unless satisfied beyond reasonable doubt that the death is not related to the service.
4. At all relevant times there is no Statement of Principles, which applied to the death of Mr Edwin Taber, under which the claim falls to be considered.
5. In the decision under review the Delegate of the Commission observed that entries in the veteran’s service record had been entered by a clerk and transcribed from other documents. The Delegate considered that the entries themselves were not significant as they were not medical records.
6. The Delegate considered that the key document in the case was a Hospital or Sick List Record Card dated 1 November 1944 which, in his view, recorded that the veteran was admitted to the 1st Australian Orthopaedic Hospital on 18 October 1944 and discharged on 1 November 1944. This card contained a section where the diagnosis of the condition to be treated was to be inserted. On the original card a diagnosis of ’Otitis Media‘ had been written in pencil. On the instructions in brackets following the word “Diagnosis” there is a note which states “(If changed cross out original entry and insert new diagnosis)”. The person making the entry changed the diagnosis to “(L) External Otitis”. It appears this person was a medical officer and he signed the amendment. The condition on final discharge from hospital was stated as “otitis externa”.
7. In another section of the card entitled “History and Examination on Admission”, the first entry is dated 18 October 1944, the day of admission. The relevant entry reads “Pain and swelling in (L) ear for 7 days. Had ears syringed in RAP four days ago. OE. Severe (L) external otitis.”
8. Delegate O’Brien was satisfied that the condition found to be present on 18 October 1944, the day of his admission to hospital, was Otitis externa” and considered that there was no medical evidence that a single occurrence of Otitis externa could cause labyrinthitis some 30 years later.
9. The significance of the distinction between Otitis media and Otitis externa is that the former may give rise to vertigo or labyrinthitis whereas the material does not indicate that Otitis externa may cause this condition.
BACKGROUND
10. Mr Taber died after an accident on 19 May 1992 at the age of 68 which occurred when he was working on a tractor on his property fixing up fences. Part of his work involved the snigging of logs from the side of the river bed on the track. While he was trying to turn his tractor around he apparently fell backwards and was run over by the wheels as the tractor rolled back. He had driven down to the river on the property on his tractor to snig a fence post back to where he was working. He needed to turn the tractor around so as to be able to snig from the rear. To turn the tractor around he nosed up the bank at a 90o angle to the track so as to be able to reverse back in the opposite direction. When he was nosed up on the bank it appears the tractor rear guard at the front rolled back a little and threw him off the machine. It came back down on to all four wheels and rolled down the hill into the excavated area, running over the top of him on the way down. The tractor weighed between four and five tonnes. There was no Coroner’s inquest. The immediate cause of death was ruptured liver, flail right chest.
11. There was no witness to the occurrence of the accident and no evidence of any signs of a health problem or any difficulty experienced by the veteran on that day. The veteran’s son, Mr Paul Taber, had been working with his father but when he came to the scene of the accident he was about 10 or 15 minutes behind his father and did not observe what happened. When he arrived he saw the tractor sitting in its resting position with the engine running and he turned it off on arrival.
12. The documents before me include some notes by Dr Henderson, a general practitioner, dated 4 October 1992 which state that he had been treating the veteran who had been suffering from head noises and giddiness for years. The notes record that the veteran had been taking Serc tablets and had required several visits over the years for this complaint. He stated that he “believed” the veteran had suffered from ear infection during active service. The practice notes also referred to “labyrinthitis” as a problem in October 1982, and to the veteran experiencing ringing in the ears and recurrent back pain in April 1987. He also refers to the veteran intending to apply to Repatriation for an allowance in respect of these matters. Dr Henderson has stated his belief that the combination of back pain and slow reflexes combined with his loss of balance (through labyrinthitis) resulted in the accident which in turn led to the death of the veteran.
13. Also included in the material before me is an extract from a Medical Text concerned with Principles of Internal Medicine which states that one complication of Otitis media can be labyrinthitis and vertigo.
14. The Applicant widow in her statement of 1 June 2007 refers to experience in relation to the veteran’s dizziness. She refers to an incident in Sydney and one in Coffs Harbour. After the second dizzy spell an appointment was made to see Dr Henderson. She says the veteran was very sensitive about other dizzy spells that he had experienced but did not tell her about these until after he had been to see Dr Henderson when he was prescribed tablets.
15. There is evidence from Mr Robert Taber, another son of the veteran, who says that his father was very skilful and experienced with the use of farm machinery. He was not a witness to the incident.
ISSUE
16. The question for determination is whether some or all of the facts raised by the material give rise to a reasonable hypothesis connecting the veteran’s death with the war service: see Byrnes v The Repatriation Commission (1993) 177 CLR 564 at 571. If the hypothesis is not reasonable the claim fails. Proof of facts is not an issue at this point.
17. The relevant legal principles are set out in the Full Federal Court decision in Bull v Repatriation Commission [2001] FCA 1832 and the cases there cited.
REASONING
18. On the material before me I am satisfied that the evidence points to the conclusion the veteran had suffered from labyrinthitis or vertigo for some time. However, the frequency, extent or severity of this problem is not clear from the evidence.
19. In relation to the medical records there is a conflict as to whether the actual diagnosis on admission to hospital was Otitis media, which it appears is capable of giving rise to labyrinthitis, or whether it was Otitis externa, which does not generally appear to give rise to this problem. It appears clear that when he left the hospital the records indicate the diagnosis at that time was Otisis externa. I am prepared to proceed on the basis that there was a diagnosis of Otitis media in this case on admission. The records are sparse and there is no reason or basis given for the change in diagnosis between admission and leaving hospital after the injury. Moreover, the period of hospitalisation indicates there was a significant problem.
20. The evidence in relation to the connection between the ear disease or injury and the development of the labyrinthitis is not strong but I think is sufficient to satisfy the requirement that the material points to a connection. Accordingly, I will proceed on the basis that the giddiness and labyrinthitis can on a reasonable hypothesis be seen to be related to war service.
21. The material before me is not, however, sufficient to point to the required reasonable hypothesis that the death was caused by war service. There is no evidence as to any loss of balance, vertigo or instability causing the death, or preventing him from extricating himself from the danger. No one observed what happened. There is no evidence as to any problem experienced by the veteran as to his health, stability, balance or giddiness during or around the time or date of the accident. The way in which the accident happened had to be inferred from inspection of the tractor and the surrounding terrain. In other words, there was no indication whatever that he suffered or was affected in any way by any attack of giddiness or vertigo at that time.
22. There is often an inherent difficulty in finding causation in cases where the accident or circumstances of death were not observed. As Lord Justice Wright observed in Caswell v Powell Duffryn Associated Colleries Ltd [1940] AC 152 at 169:
“My lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The court therefore is 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. 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.”
23. Each case must be decided of course on its own circumstances, but in significant respects the present case is analogous to that considered by this Tribunal in Gardiner v Repatriation Commission [2007] AATA 1330, which concerned a claim in respect of the death of a veteran arising from a tractor accident in circumstances where there was no witness present, and it was only possible to draw the broad general inferences from observations of the terrain and the machinery and the position in which the deceased was found.
24. If there was any evidence in this case that, at about the time of the accident, the veteran had mentioned or shown signs of unusual conduct or giddiness or lack of balance, then it may have been possible to conclude that there was some material which points to such symptoms having a causal relationship to the death. However, there is no evidence whatsoever which points to such a conclusion as being reasonable. Consequently, the hypothesis on which the Applicant’s case is based has no reasonable support in the material before me and amounts to no more than speculation or conjecture.
25. For these reasons the application is dismissed and the Delegate’s decision is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Hon. Justice Brian Tamberlin, Deputy President
Signed: .......................[ sgd]......................................................
Myra Nikolich, AssociateDate of Hearing 29 May 2009
Date of Decision 3 July 2009
Solicitor for the Applicant David Clifton
Representative for the Respondent Nigel Bunn
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