McLean v Repatriation Commission

The Proper Approach 7 In Byrnes v Repatriation Commission (1993) 177 CLR 564, 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." 8 Section 120A, where it operates, will modify this procedure. It is sufficient for present purposes to say that the section authorizes the Repatriation Medical Authority to issue Statements of Principles in connection with specified causes of death. When the cause of death is one to which such a statement applies, any hypothesis will only be reasonable if it satisfies the requirements of that statement. At one stage the appellant sought to establish an hypothesis based upon the possibility that the veteran suffered from lumbar spondylosis for which condition a Statement of Principles has been issued. The appellant could not satisfy the requirements of that statement. She therefore chose to formulate and rely upon an alternative hypothesis, involving an allegation of possible unspecified back injury. Thus s 120 applies for present purposes as prescribed in Byrne without modification.

The Material 9 We commence by setting out pars 6 - 8 of the reasons of Tamberlin J as follows: "6. The veteran was born on 5 January 1914 and the (appellant) on 3 November 1917. They were married in January 1934. The veteran served in the RAAF during World War II and the whole period of his service from 13 May 1940 to 18 July 1946 constituted operational service under the Act. During his war service the veteran was an aircraft mechanic and fitter. 7. The veteran died on 24 August 1953 aged thirty-nine. The circumstances in which the death occurred are that on the day in question the veteran was felling trees on a hillside. He was accompanied by a Mr Jones and a Mr McDougall. At the time of the accident Mr McDougall was cutting down a large tree. He was some seventy to eighty yards up the hillside from where the veteran and Mr Jones were working side by side trimming timber and lantana. Mr McDougall shouted warnings that the tree he was cutting was about to fall. The veteran shouted to Mr McDougall to let the tree fall. The tree then began to fall down the hillside, following the line of a gully. It appears that the veteran and Mr Jones moved in opposite directions out of the line of the tree's descent. During the tree's passage it dislodged a large boulder. The veteran was hit in the chest by the boulder as it bounced down the hill. The veteran's body was later examined and it was found that he had suffered compression injuries to his chest which had killed him. The cause of death was certified to be "[a]ccidentally killed by a large rock rolling down the hill side." 8. It was not in dispute that Mr Jones and Mr McDougall, who were the two witnesses in the vicinity of the accident, did not see the actions taken by (the veteran) as the rock was dislodged other than that he moved in the opposite direction to Mr Jones. Mr Jones was looking to his own safety, as (the veteran) had told him to do, while Mr McDougall was out of sight and up the hill. Mr McDougall delivered the final axe cut to the tree when told to do so by (the veteran). It was not expected or anticipated that the rock would be dislodged as a consequence of the tree felling operation. Mr McDougall first became aware that a rock had been dislodged after the tree had commenced its descent. There is no evidence of any warning in relation to the rock. Mr Jones did not see the rock until after (the veteran) had died and did not take it into account in considering his own safety. There is no direct evidence that (the veteran) saw the rock or as to the extent of his mobility at the time immediately prior to the impact of the rock." 10 It is also necessary to say something about the medical material. At par 59 the Tribunal observed: "59. The case now put forward by (the appellant) is not dependent upon any finding of spondylosis but upon an indeterminate back condition … . 60. … 61. There is material pointing to (the veteran's) not suffering from any problems with his back prior to his service. That is found in the evidence of (the appellant) and of his brother and sister. There is also material pointing to his suffering from problems with his back shortly after his discharge from the RAAF and thereafter. That is again found in the evidence of (the appellant) and of his brother and sister and also in the evidence of Mr McDougall and the statement of Mr Sigley. In the evidence of Mr Sigley, there is material pointing to (the veteran's) suffering from limited mobility when he saw him at the timber mill and there is material in the evidence of (the appellant) as to his not assisting with physical tasks at home when he would have done so before his war service. 62. There is material in the reports of Dr Seaton pointing to (the veteran's) back problems most probably being lumbar spondylosis which developed as a result of the heavy lifting and carrying that he was required to do as part of his duties during his service in the RAAF." 11 At par 66 - 67, the Tribunal observed: "66. In so far as lumbar spondylosis is concerned, there is no evidence that (the veteran) suffered from that condition. It was not revealed on the X-rays taken in 1946. Dr Seaton himself concedes that there is no evidence. There is no other evidence of either lumbar spondylosis or any other back condition having arisen out of, or being attributable to, (the veteran's) eligible war service. The only back condition of which there is any evidence is (the veteran's) sacralisation of the fifth lumbar segment of the right side. The evidence points to its being congenital in origin. The evidence pointing to (the veteran) suffering back problems after his return from service but not before does not in itself point to the problems having arisen out of, or being attributable to, his eligible war service. 67. If the hypothesis were otherwise reasonable and it were predicated upon his suffering from cervical spondylosis rather than upon a nonspecific painful back condition, I note that it would not be consistent with factor 1(b) of SoP 105 or any subsequent SoP. That would be so as there is no material pointing to (the veteran's) having contracted a significant inflammatory joint disease in his lumbar spine before the clinical onset of lumbar spondylosis." [The reference to "cervical spondylosis" should probably be to "lumbar spondylosis".] 12 The medical material consisted of records of medical consultations and/or treatment during the veteran's war service, his subsequent condition as described by lay witnesses and comments by two medical practitioners upon those matters. Understandably, the medical practitioners had never examined or treated the veteran. 13 Dr D G Seaton gave a report dated 15 August 1996. He opined that: "On looking at his war service file he did, indeed, have a long and hard service which obviously records the fact that he was a mechanic and fitter of aircraft for a long period of time. This, in my experience of some forty five years of medical practice as an Orthopaedic Surgeon, would indeed of (sic) caused degenerative spondylitis and degenerative spondylitis is known to slow a man's reaction to escape a falling rock. … There is no doubt from this record that he worked long and hard with heavy machinery. One would, on the balance of probabilities, say that he did have a worn back as a result of the nature and conditions of his work over this long, strenuous period as a fitter mechanic with aircraft. However, the weakness in this case is simply due to the fact that there is no medical evidence anywhere on the record that he did have lack of mobility due to lumbar spondylosis and this, indeed, is probably the case, but it is not recorded. I would support the fact that his mobility was limited when he was killed on 24 August 1953, and part of this lack of mobility was due to his position near the rock, and part of it was due to the fact that his reactions were slow because of a bad back caused by a long and arduous war service." 14 Dr Seaton gave oral evidence before the Tribunal at the first hearing. The veteran's medical records disclosed that he had suffered from a congenital abnormality involving the fusion of his fifth lumbar vertebra to the tail bone. Dr Seaton considered that his war service: "… would have added to his back strain because of the fact that if he were unable to move the lumbo-sacral joint, which he could not with the sacralisation, then he must have put extra weight on the only four remaining discs, that is the first, second, third and fourth, because he did not have a fifth disc that could move." 15 At p 28 of the transcript of proceedings before the Tribunal Dr Seaton was asked: "Do you feel in a position to comment on whether his condition would have affected his mobility, and thus his ability to respond to such an event?" 16 He replied: "Yes, I've given, as you will read from my report, an opinion. I have stated that I have no proof because I do not have any autopsy record of spondylosis or spondylitis. But on the balance of probabilities, and using common sense, he would have suffered with this condition, and that … then very definitely he would not be able to move out of the way of a falling rock as quickly as he would have had if he had been in the position that he had a normal back. In other words, his mobility was limited when he was killed on 24 August 1953." 17 In his oral evidence Dr Seaton sought to support his diagnosis of lumbar spondylosis notwithstanding the fact that the relevant Statement of Principles could not be satisfied. No other medical material was before the Tribunal at its first hearing. It initially resolved the matter in favour of the present appellant, but that decision was upset by Davies J. The matter was remitted to the Tribunal for further hearing. At that second hearing the Tribunal considered a further report from Dr Seaton dated 28 October 1998 and a report from Dr Smith dated 14 December 1998. In the end it seems to have been accepted that none of the medical evidence offered any theory as to the veteran's medical condition which could be of assistance to the appellant. Dr Smith said so in terms. Dr Seaton appears to have adhered to his theory of lumbar spondylosis, whilst accepting that there was no evidence to support it. Of course, this approach was also excluded by the appellant's inability to meet the requirements of the Statement of Principles. Dr Seaton concluded that he could not "propose a reasonable hypothesis that the veteran's war service aggravated a back condition." 18 As the Tribunal put it in its reasons published following the second hearing: "The case now put forward by (the appellant) is not dependent upon any finding of spondylosis but upon an indeterminate back condition." 19 There was some attempt in the appellant's outline of argument to seek to rely upon Dr Seaton's opinion as to this more general theory. However it is, we think, clear that nothing in his earlier report or in his oral evidence pointed to any condition other than lumbar spondylosis. The second report goes no further. In those circumstances, the appellant was left with no medical evidence pointing to the hypothesis that the veteran suffered any back injury or aggravation of any pre-existing condition as a result of his operational service.

the Tribunal's Reasons 20 As appears from Byrnes, it is necessary that there be a reasonable hypothesis connecting the veteran's death with his service. The Tribunal identified the relevant hypothesis at par 46 of its reasons as follows: "The hypothesis put forward by (the appellant) was that (the veteran) suffered from a congenital condition of sacralisation of the fifth lumbar segment on the right side; he had reported incidents involving a bad back whilst on service; before his service, he had not suffered any restriction of movement because of back pain but, after service, he did; his restriction of movement meant that he could not avoid a rock that fell down a hillside when a tree was felled; and he died as a result of being struck by the rock." 21 At par 60 the Tribunal said: "I must consider whether there is a hypothesis linking (the veteran's) eligible war service and whether it is reasonable in accordance with the test specified in sub-sections 120(1) and (3)." 22 The Tribunal then considered the facts of the case, finding that the material pointed to the veteran's not having suffered from back problems prior to service and to his having suffered from them after his service. These problems resulted in limited mobility. The Tribunal referred to the circumstances surrounding the veteran's death and concluded that there was material pointing to his not having moved out of the way of the rock so as to avoid being hit (par 63). In pars 64 - 66, the Tribunal continued: "64. The more difficult question is whether there is any material pointing to Mr McLean's having not moved out of the way of the rock because of his limited mobility. … 65. There is no material pointing to Mr McLean's having seen the rock let alone having been unable to get out of its way because of his limited mobility. … 66. It follows that I consider that the material does not point to a vital part of the hypothesis. Consequently, I have concluded that the hypothesis has not been established and I do not need to consider whether it is reasonable. …" 23 Nonetheless, the Tribunal then went on to consider whether or not the hypothesis was reasonable and to conclude that it was "too tenuous … for two main reasons". We will consider the question of reasonableness at a later stage. 24 Clearly, the Tribunal carried out some form of assessment of the identified hypothesis anterior to its application of the test of reasonableness. This anterior test appears to have involved an assessment of the extent to which the material "pointed to" the hypothesis, quite apart from the question of reasonableness. We do not consider that course to be required by the Act or the authorities. The decision in Byrnes indicates that the first step is to determine whether or not "… all or some of the facts raised by the material … 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". In Repatriation Commission v Bey (1997) 79 FCR 364, the Full Court held that: "While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decisionmaker." 25 Clearly, the Court was dealing with reasonableness. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 91, the Full Court prescribed the process required by the Act as follows: "(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." 26 It will be seen that in Deledio the Full Court effectively broke into three steps, the two steps postulated by the High Court in Byrnes, by distinguishing between formulation of the relevant hypothesis and consideration of its reasonableness. However the Court did not suggest that there was any test to be applied to the identified hypothesis other than that of reasonableness. Clearly, the Tribunal erred in par 66 of the reasons in holding that apart from its reasonableness, the hypothesis had not been "established", whatever that may mean. The Tribunal was obliged only to identify the hypothesis and then to consider its reasonableness. This error is not necessarily fatal as the Tribunal went on to do so, assuming "establishment" of the hypothesis. The Tribunal found against reasonableness because: · The appellant could not satisfy the requirements of the relevant Statement of Principles concerning lumbar spondylosis. · Lumbar spondylosis being excluded, there was no evidence of any other back condition arising out of, or attributable to the veteran's operational service. The sacralisation of the fifth lumbar segment was congenital and although the evidence pointed to his suffering back problems after his return from service and not before, this did not demonstrate that his later problems were attributable to his service. · There was no evidence that the veteran was aware that the rock had been, or might be dislodged or that he was warned of it, nor was there evidence that his mobility or otherwise was a relevant factor in his inability to avoid being hit by it.

Reasons of Tamberlin J 27 At par 24, his Honour concluded (concerning the question of whether the hypothesis had been "established"): "To the extent that the AAT decided that there was no hypothesis raised, I consider that it erred in applying too high a standard in respect of what is a low threshold of proof." 28 As we have said, our view is rather that there was no "threshold of proof" to be considered in advance of the Tribunal's consideration of reasonableness. Tamberlin J then went on to consider the Tribunal's finding of absence of reasonableness, concluding that the Tribunal had erred in its view of the material concerning the veteran's post-war back condition. This aspect of the decision is subject to a notice of contention filed on behalf of the respondent. In any event, his Honour upheld the Tribunal's finding that the hypothesis was unreasonable upon the basis that the nexus between the veteran's death and any war injury was "too tenuous".

The Appeal 29 As we understand it, the only ground of the appeal is as to the finding that the hypothesis was not reasonable. The hypothesis advanced by the appellant involved three aspects: · Back injury or aggravation of a pre-existing condition during operational service; · Continuing incapacity as a result of such injury or aggravation; and · Reduced mobility as a result of such incapacity, causing the veteran's death by preventing him from escaping danger from a falling rock. 30 These three aspects were not matters for proof in any evidentiary sense. They were merely aspects of one hypothesis, the overall reasonableness of which was to be tested. The Tribunal (and Tamberlin J) considered discretely the material relating to the veteran's medical condition and that concerning the circumstances surrounding his death. It is difficult to see how such an approach could have been avoided. Nonetheless, this stylistic device appears to have generated one of the major criticisms of the decision, namely: "… that the Tribunal mistakenly looked to see if there were evidence in support of each aspect of the hypothesis." 31 We do not accept that the Tribunal committed this error. It is clear from par 69 that it ultimately addressed the reasonableness of the hypothesis as a whole. It is nevertheless convenient that we also consider discretely those two areas of the material.

Medical Issues 32 Tamberlin J was concerned that the Tribunal may have overlooked some of the medical material. His Honour, in effect, considered that the evidence of back pain after the war, of heavy duties performed during the war and of some back pain as a result of those duties, pointed to an aspect of the relevant hypothesis. These matters were summarized in the Tribunal's reasons. The hypothesis described in par 46 also addresses them, and the issue is squarely raised in the last sentence in par 66. We are satisfied that the Tribunal had in mind the full range of the material in addressing this aspect of the case. 33 The opinions of the medical practitioners were also based upon all of the relevant material. Dr Smith was unable to advance any hypothesis linking aggravation of the veteran's back condition to his war service. Dr Seaton was unable to take the matter beyond his theory of lumbar spondylosis, but that theory could not succeed because the material did not satisfy the requirements of the Statement of Principles. In the absence of this expert opinion it may have been permissible, at least for the purpose of assessing the reasonableness of the hypothesis, to infer a causal link between the veteran's post-war symptoms and his heavy duties during war service. However, given that the medical practitioners were apparently unable to establish the possibility of such link, lay opinion could hardly be relied upon to establish it. In fairness to his Honour, he apparently did not have the benefit of the analysis of the medical material which senior counsel for the respondent made for us. We consider that the Tribunal's conclusion that the material, taken as a whole, did not support or point towards the hypothesis advanced by the appellant is not attended by appellable error.

Circumstances surrounding the veteran's death 34 The Tribunal concluded that the material did not point towards the veteran having been aware that the rock was falling, nor that he had any warning of the fact. Further, there was no evidence pointing to his "mobility or otherwise being a relevant factor in his avoiding being hit by the rock." The sentence should probably read "not avoiding". In argument, it seemed to be suggested that reasonableness of the hypothesis depended upon the material pointing to the fact that the veteran had attempted to avoid being struck by the rock and had been unable to do so, thus assuming his knowledge of danger from the rock. We doubt the correctness of this suggestion. Further, we do not consider that the Tribunal proceeded upon that basis. 35 In order that the hypothesis be reasonable, it was only necessary that it not be "obviously fanciful or untenable" to adopt the wording of Byrnes. We accept that this test required that the supporting material point to some fact or facts supporting the hypothesis (Bushell v Repatriation Commission (1992) 175 CLR 408 at 414, cited in Bey at 372). The hypothesis must be more than a bare possibility. The material demonstrates that immediately prior to his death the veteran was trying to escape the dangers posed by the falling tree. Any person in that position would have been seeking a position of safety. Although it is unlikely that he or she would consciously have identified all possible sources of danger, it is also unlikely that an experienced timber-getter would have been unaware of the risk that a falling tree might dislodge other trees or rocks. We would think that the objective of such a person in that position would be to get well clear of the whole area or get into some protected position. 36 In considering whether the material points to the veteran's having failed to find a safe place because of reduced mobility, one must consider many factors. Much would depend upon what was known of the veteran's incapacity and of his actions at the relevant time, particularly the evasive action actually taken by him and the extent by which he failed to attain a position of safety. The possibility of an error of judgment, perhaps because he was not aware of the falling rock, might also be relevant. The Tribunal appears to have considered all relevant matters and to have concluded that there was "no evidence pointing to (the veteran's) mobility or otherwise being a relevant factor". This view was clearly open.

Conclusion 37 Thus the Tribunal demonstrated that there was no material pointing to any lack of mobility being attributable to the veteran's operational service nor to such a lack having contributed to causing his death. These matters clearly led to and justified the factual finding that the hypothesis was unreasonable. No error has been shown in the Tribunal's reasons. The appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court.

Associate: Dated: 26 October 2001 Counsel for the Appellant: C A Vindin

Counsel for the Respondent: P J Hanks SC Ms R M Henderson

Solicitor for the Respondent: Australian Government Solicitor