Streatfeild v Repatriation Commission

THE statutory framework 7 Section 14(1), which appears in Pt II of the Act, provides: 'Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).' 8 Section 120 of the Act relevantly provides: '(1) Where a claim under Part II for a pension in respect of … the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine … that the death of the veteran was war-caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) … in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: … (c) that the death was war-caused or defence-caused; … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person.'

THE hearing before THE tribunal 9 Medical evidence was provided to the Tribunal by Associate Professor Alastair Corbett on behalf of the applicant and by Professor James Lance on behalf of the respondent. In his written evidence Associate Professor Corbett stated: 'Migraine headaches at their peak may result in the sufferer experiencing dizziness, including vertigo, disorientation and at times frank confusion. At the time of the veteran's fatal head injury his wife reports that he was experiencing frequent headaches with migraine characteristics. It is a reasonable hypothesis that migraine headache may have been a factor contributing to the veteran stepping off the kerb and suffering a fatal head injury and thus a significant factor contributing to his death.' 10 The Tribunal summarised the evidence of Professor Lance as follows: '[Professor Lance] also noted from his interview with Mrs Streatfeild that she remembered the Veteran's saying, just before he left on the errand that led to his death, that he would be back early because they were planning to inspect a possible venue for a twenty first birthday party for one of their children. No mention was made of a headache at that time.' 11 In his written report Professor Lance stated: 'The history of Mr Streatfeild's headaches is typical of migraine. I cannot find any evidence that he suffered from migraine during his war service. It appears more likely that migraine began early in the 1950s. The headaches were not associated with faintness or fainting and there is no evidence that he had a headache or was otherwise unwell before he fell or was struck by a vehicle in the fatal accident on 14 May 1976. … I am unable to find any link between his tendency to migraine headaches and his death. … I have read the reports of Professor Corbett and I agree that his hypothesis is possible but, for the reasons detailed above, I do not consider it probable.' 12 Professor Lance noted in a second report: 'Distribution of the areas of subarachnoid haemorrhage clearly indicates that they were the result of head injury and not of a primary subarachnoid haemorrhage required to meet the diagnostic criteria. … There is no evidence that the head injury Mr Streatfield [sic] suffered during his service made him in any way more susceptible to the injury of 14 May 1976.' 13 The Tribunal noted that both Professors Corbett and Lance were agreed 'that it was difficult in a case such as the present to separate possibility and speculation'.

the findings of THE tribunal 14 Based upon the provisions of s 120(3) of the Act, the Tribunal considered the question whether there was a reasonable hypothesis that the death of Mr Streatfeild was caused by his prior injury. The Tribunal stated: 'Did the Veteran suffer frequent headaches? And was he prone to headaches at or about the time of his death? The material before the Tribunal points to an affirmative answer to both questions, on the basis of the Applicant's evidence.' 15 The Tribunal then considered whether it was a reasonable hypothesis that the headaches suffered by the veteran were connected to war service. The Tribunal noted the conflicting evidence of Associate Professor Corbett and Professor Lance on this issue. However, the Tribunal noted that Professor Lance did not entirely exclude the possibility that the headaches resulted from the injury during war service. 16 The Tribunal concluded, however: 'Even accepting that the Veteran's recurrent headaches amounting to migraine were war-caused, the crucial part of the hypothesis to be substantiated is that there is material pointing to the headaches having been present at the moment of the Veteran's being struck by a vehicle and as having played a part in that event. On that question there is no material whatsoever pointing to the Veteran's war-caused headaches having contributed to his death; there is merely speculation. For that reason the hypothesis cannot be considered reasonable.'

APPLICANT'S Challenges to the decision 17 The applicant submits that the Tribunal erred in its approach to the question whether a reasonable hypothesis had been established as provided by s 120(3) of the Act by requiring material pointing to each part of the hypothesis. The applicant submits that the Tribunal should not have asked whether each element of the hypothesis was supported by evidence tending to establish it, but rather should have considered whether there was material 'pointing to raised facts supporting the hypothesis as a whole'. Further, the applicant submits that the Tribunal's finding that the hypothesis 'cannot be considered reasonable' shows that the Tribunal considered that as a matter of law it could not find that a reasonable hypothesis existed, when it was a matter of discretion. 18 The applicant also claims that the Tribunal made an assessment of the medical experts' opinions, when it should have postponed any assessment until it was considering, in accordance with s 120(1), whether the hypothesis was disproved beyond a reasonable doubt. 19 Finally, the applicant submits that the Tribunal was in error in characterising the views of the medical experts as 'mere speculation', and in any event, such a characterisation was not equivalent to a hypothesis which was 'too remote or too tenuous', being the test referred to in Byrnes v Repatriation Commission (1993) 177 CLR 564.

FINDINGS 20 Section 120(1) of the Act requires the Tribunal to make a finding that the death of a veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making such determination. As a preliminary step, the Tribunal is required to consider whether, 'after consideration of the whole of the material before it', it is of the opinion that the material before it raises a reasonable hypothesis connecting the death with the circumstances of the service. 21 The operation of s 120 was considered by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes especially at 571 where the Court said: 'The position may be summarized as follows: (1) First, subs (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 claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, subs (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.' 22 Determining whether a reasonable hypothesis has been made out is a question of fact which requires an assessment of the factual material, but proof of facts and onus of proof are not an issue at this stage of the Tribunal's consideration: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 91; Bull v Repatriation Commission (2002) 188 ALR 756 at [22]; Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. 23 However, thequestion of what constitutes a reasonable hypothesis has been the subject of much judicial consideration. Determining whether an hypothesis is reasonable requires a consideration of the whole of the material before the Tribunal, 'not whether an hypothesis of connection would be reasonable if some facts are ignored': see Owens at 904. In Bushell the High Court observed that an hypothesis may be reasonable although it is unproved and said at 414: 'The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.' 24 However, the High Court, adopting the observations of the Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517, also observed at 414: '… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous".' [footnotes omitted] 25 In Bull Emmett and Allsop JJ observed at [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 …' [emphasis in original] 26 In Repatriation Commission v Bey (1997) 79 FCR 364 the Full Federal Court observed as follows (at 372-3): 'A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.' 27 The Court in Repatriation Commission v Webb (1998) 51 ALD 575 considered the approach to be taken in determining whether a hypothesis was reasonable. In that decision, the Court said at 582: 'The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of a hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered.' [original emphasis] 28 In the present case the Tribunal accepted, for the purposes of its determination under s 120(3), that Mr Streatfeild's headaches were war-caused. Both medical experts agreed that, if Mr Streatfeild had been suffering from a headache at the time of the accident, there was a possibility that attendant disorientation could have caused him to fall onto the road. However, the Tribunal considered that there was no factual material at all pointing to the fact that headache was related to Mr Streatfeild's fatal accident. While the applicant said that her husband had been suffering headaches with increasing frequency in the lead up to his death, she made no suggestion that he had been suffering from a headache on the day of his death. The statement of evidence of Associate Professor Corbett said: 'It is suggested in the coroner's documents that Mr Streatfeild may have attempted to cross Parramatta Road leaving the pavement in such a way that he was obscured from the view of the driver by a telegraph pole. This would be an inappropriate manner to cross the road and suggests that he may have been confused or distracted at the time of this fatal injury. One hypothesis to account for this inappropriate and unsafe method of attempting to cross a busy road is that Mr Streatfeild was suffering from a migraine headache. Migraine headache may result in confusion, disorientation and distraction.' 29 However, this is not truly a medical opinion, but rather an unsupported theory of how the accident may have occurred. Professor Corbett in evidence agreed that 'Apart from the actual act I have no other evidence and that it would seem an unusual way to cross a road.'There is absolutely no factual material which points to the fact that Mr Streatfeild was suffering from a headache on the day of his accident. 30 As stated in Bey, however, a mere possibility is not enough. There must be evidence which points to the suggested hypothesis. The crucial link in this case was whether Mr Streatfeild had in fact been suffering a headache at the time of his accident. This did not have to be proved beyond a reasonable doubt, or on the balance of probabilities, but there had to be material which pointed to it. There was no such material. Accordingly the Tribunal considered, and I agree, that any suggestion that Mr Streatfeild did have a headache on the day in question was mere speculation. 31 The applicant also suggests that by characterising the medical experts' views as 'speculation' the Tribunal 'crossed the line into assessment of the material before it'. However this is, in my opinion, an erroneous characterisation of the Tribunal's reasoning. The medical experts' evidence was directed primarily to two factors: whether the headaches were related to Mr Streatfeild's period of service, and whether, if Mr Streatfeild had a headache, the attendant disorientation could have caused him to fall in front of the vehicle which hit him and caused his death. It appears to me that the Tribunal accepted, for the purposes of the hypothesis, the possibility that Mr Streatfeild's headaches may have been caused by his period of service. It did not consider whether disorientation from his headaches could have resulted in the accident, since because of its other findings this question did not arise. The only matter which the Tribunal classed as speculative was whether Mr Streatfeild had in fact suffered from a headache on that day. 32 The Tribunal was required to assess the material before it in determining whether that element of the hypothesis was reasonable. It did not reject the possibility suggested by Professor Corbett as entirely impossible. It simply determined that, having regard to the material as a whole, it was speculation that headaches caused the accident. It was entitled to come to the finding that it did because, as admitted by Professor Corbett, there was no evidence to suggest that Mr Streatfeild had in fact been suffering from a headache on the day of his death. As Allsop J in Cameron v Repatriation Commission (2003) 77 ALD 81 at [47]-[48]: 'The applicant must say that whatever the factual background, however tenuous and otherwise unsupported a medical opinion might be, to conclude in the face of an opinion such as that of Dr Burns that there is no reasonable hypothesis, is to fact find. I do not agree. The characterisation of Dr Burns' evidence as "assertion" was, I think, a polite way of stating a conclusion about the report according to its own terms. The reading, appreciation, understanding and characterisation of Dr Burns' views were part of taking into account all the evidence, including his report. That, I think, is what the tribunal did. It reached a view on all the material that there was no relevant reasonable hypothesis.' I note thatthe facts in Cameron were markedly similar to those in the present case. 33 The applicant suggests that a hypothesis based upon speculation is not necessarily an unreasonable hypothesis, and relies upon Lowerson v Repatriation Commission (1994) 50 FCR 252 at 266. However, I am satisfied in this case that the Tribunal used the term 'speculation' to indicate that it considered the hypothesis to be too remote or too tenuous, in the sense considered in Bushell, to be considered a reasonable hypothesis for the purposes of s 120(3). The facts relied upon, even if true, were not sufficient to found a reasonable hypothesis. 34 The applicant's final submission is that the use of the word 'cannot'in the statement by the Tribunal that 'the hypothesis cannot be considered reasonable'suggests that the Tribunal believed that, based upon its finding that some of the evidence was speculative, it was bound by law to find the hypothesis unreasonable. The applicant relies upon a passage from Qualcast (Wolverhampton), Ltd v Haynes [1959] 2 All ER 38, in which Lord Denning found it was an error for the trial judge to have considered himself bound by authority to find that the standard of care had been breached based upon his factual findings when he was in fact required to determine the appropriate standard of care in the circumstances. 35 I do not accept that the Tribunal in this case considered itself 'bound' to determine that the hypothesis was unreasonable because it had concluded that the material relating to whether Mr Streatfeild had a headache was speculative. Rather, the Tribunal was expressing the fact that, in view of its assessment of the materials, it did not consider the hypothesis to be reasonable. Apart from the word 'cannot', there is no evidence in the Tribunal's reasons to support the applicant's interpretation and I am not satisfied that the word 'cannot' alone can support the interpretation pressed by the applicant. As submitted by the respondent, the reasons of a tribunal should not be construed minutely and finely with an eye keenly attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272.

conclusion 36 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 2 August 2006 Counsel for the Applicant: Mr M Vincent

Solicitor for the Applicant: Dibbs Abbott Stillman

Solicitor for the Respondent: Australian Government Solicitor