Cameron and Repatriation Commission [2003] AATA 9 (8 January 2003)

Last Updated: 8 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 9

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1527

VETERANS' APPEALS DIVISION )

Re CLARICE CAMERON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 8 January 2003

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD]Ms N Bell, Member

CATCHWORDS

VETERANS' AFFAIRS - widow - veteran's smoking habit worsened as a result of war service - veteran's smoking habit led to the development of chronic bronchitis and emphysema - whether the veteran's chronic bronchitis and emphysema led to the development of pneumonia - motor vehicle accident - death of veteran - whether veteran's pneumonia contributed to his death - decision affirmed

Veterans' Entitlements Act 1986 - ss.8, 120

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Dixon v Repatriation Commission [1999] FCA 582

Re McLean and Repatriation Commission (1997) 48 ALD 165

Elliott v Repatriation Commission [2002] FCA 26

East v Repatriation Commission (1987) 74 ALR 518

Re Dell and Repatriation Commission (1986) 9 ALD 596

Bull v Repatriation Commission (2001) 188 ALR 761

Repatriation Statement of Principles Instrument No. 73 of 1997 Revocation of Statement of Principles concerning Chronic Airflow Limitation and Determination of Statement of Principles concerning Chronic Bronchitis and Emphysema

Gordon Macpherson (ed), Black's Medical Dictionary, 39^th edn, A & C Black, London, 1999.

REASONS FOR DECISION

8 January 2003 Ms N Bell, Member

1. This is an application by Mrs Clarice Cameron ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 2 January 2001 which refused the Applicant's claim that the death of her husband, Alexander Maxwell Cameron ("the Veteran"), was war caused. The Respondent's decision was affirmed by the Veterans' Review Board on 5 September 2001.

2. At the hearing before the Tribunal the Applicant was represented by Mr Mark Vincent of Counsel and gave oral evidence to the Tribunal by telephone. The Respondent was represented by Ms Susie Breuer. The Tribunal had before it the following documentary evidence:

Exhibit Description Date

TD1 T-documents T1 - T19 p1 ~ 62 -

A1 Applicant's Statements of Facts and Contentions 12-08-2002

A2 Applicant's Statement 28-11-2002

A3 Report of Dr Funnell 29-05-2002

A4 Report of Dr Burns 19-07-2002

A5 Report of Dr Burns 27-11-2002

R1 Respondent's Statement of Facts and Contentions 25-11-2002

R2 Inquest Documents from Mudgee Local Court Various

R3 Report of Professor Breslin 11-11-2002

BACKGROUND

3. The following matters are not in dispute. The Veteran was enlisted in the Australian Army from 6 May 1942 to 14 December 1945, a period of operational service. The Veteran died when struck by a motor vehicle as he was crossing Market Street in Mudgee at approximately 7:50pm on Friday 18 April 1980. The parties agreed that the cause of death was a tear to the thoracic aorta and severe trauma caused by the motor vehicle impact. The parties also agreed that, on death, the Veteran had pneumonia although the question of whether that was due to contusions from the impact of the motor vehicle or whether the pneumonia was current before the accident is in dispute. At the time of his death the Veteran was 68 years old.

4. It is also agreed between the parties that the Veteran had chronic bronchitis which had, in conformity with Statement of Principles ("SoP") number 73 of 1997, been war caused given his three or four fold increase in the amount of his tobacco consumption during his service.

ISSUES

5. The hypothesis put forward by the Applicant is that the Veteran's war caused chronic bronchitis gave rise to a number of bouts of pneumonia, the latest of which developed a few days before his death. It was put that the Veteran's pneumonia debilitated him and made him unable to properly react to an oncoming car and he was subsequently hit by the car and killed.

6. As noted above, the parties agreed that the Veteran had war caused chronic bronchitis and that the cause of death was a tear to the thoracic aorta and severe trauma caused by the impact of the motor vehicle. The parties also agreed that both death by tear to the thoracic aorta and pneumonia are not the subject of SoPs and so the Tribunal must look to the material before it to decide whether it raises a reasonable hypothesis connecting the Veteran's death with the circumstances of his service.

7. Given the parties' agreement that the Veteran's chronic bronchitis is war caused and that the Veteran's death was caused by the impact of the motor vehicle, the Tribunal must turn its attention to the "connecting" aspects of the hypothesis and decide whether the material before it points to the hypothesis that the Veteran developed pneumonia before the accident (and had pneumonia at the time of the accident) and, if so, rendered the Veteran unable to properly react to an oncoming car.

LEGISLATION

8. The relevant legislation in this application is the Veterans' Entitlements Act 1986 ("Act") and in particular sections 8 and 120. The parties are in agreement that no SoPs apply to those conditions that link the Veteran's war caused chronic bronchitis with his death. It is convenient to set out the provisions of sections 8 and 120 of the Act below:

Section 8 - War-caused death

(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or

(e) the injury or disease from which the veteran died:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;

Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.

but not otherwise.

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."

APPLICANT'S EVIDENCE

9. The Applicant's evidence was given by way of written statement and orally by telephone and can be summarised as follows.

10. The Veteran, according to the Applicant, was always very sick after his discharge from the army. He had become a heavy smoker during service, increasing his consumption of tobacco by three or four times the amount he had smoked when he joined the army. The Veteran developed pneumonia at one stage in the army and after that his chest was "very bad". He would get sick and be confined to bed for few days every month. The Veteran retired in 1973 because of chest problems and tried to help his son with building work he was doing but was unable to do so because of his chest.

11. The Applicant said that three days before the Veteran died he developed pneumonia and was coughing up blood. She arranged to have the local doctor visit him at home and he was told not to leave his bed. On the day he died the Veteran was concerned about the council rates being due and attracting interest if they were not paid and so at about lunch time he walked up to the council offices and paid the rates. He returned home on foot about an hour later and spent some time lying down reading the paper. According to the Applicant, the Veteran then, at about 4pm, walked a few blocks to the Court House Hotel and had "a couple of beers" with his son and walked back. The Applicant said the Veteran would generally visit the Hotel about three times per week. Later in the day or in the evening he rode with his daughter and son in law in their car to the Court House Hotel to purchase some wine for some visitors. He was struck down crossing the road at that time.

12. The Applicant said that after the inquest she left Mudgee because she did not want to see the woman who knocked the Veteran down. She considered that that woman had told a lot of lies in relation to the Veteran's death.

APPLICANT'S MEDICAL EVIDENCE

13. The report of Dr Michael Burns dated 19 July 2002 said:

"Persons with smoking-related chronic bronchitis lose the ciliary protective action against bacteria in their bronchial tree which becomes colonised with those bacteria. They are therefore more subject than non smokers to recurrent bronchitis and pneumonia. It is likely, in my opinion, that his chronic bronchitis condition predisposed him to developing pneumonia which declared itself several days before his death. There is no doubt that he had pneumonia because it was found at autopsy following his sudden death from the car accident.

Page 53 of the documents you sent me contains a statement that, "according to his widow, on the day of the fatal accident the later veteran was suffering from a bout of pneumonia and he had left his bed to get a lift into town to purchase some wine for forthcoming visitors and to pay the rates". On page 54 she had said that "she went into his bedroom and found bloody tissues and she believes that he may have been coughing up blood". The pneumonia found at autopsy is more likely than not, in my opinion, to have been accompanied by fever. Fever itself is sometimes associated with mental confusion called delirium. It is quite likely that he had some confusion as the result of his pneumonia and that confusion was instrumental in his failing to see the car, the collision of which was to cause his death.

Accordingly, therefore, it is likely, on the balance of probabilities, that he had chronic bronchitis and eventual pneumonia, which was a complication of his chronic bronchitis. His chronic bronchitis was due to cigarette smoking and I believe that his case satisfies Factor 5B. I believe his pneumonia was likely, on the balance of probabilities, to have had an affect in causing him to be unable to react appropriately to the threat of the oncoming car that hit and killed him.

I have no evidence that he had a coughing fit. I believe therefore that his death was indirectly war-caused."

14. In his supplementary report dated 27 November 2002 Dr Burns said:

"Thank you for your letter of 20 November 2002 to which was attached Professor Breslin's report and the inquest documents. I had not seen the letter before and I took note of the fact that Mr Cameron had an elevated blood alcohol level when he died. However, the autopsy report included the definite statement of current left-sided pneumonia. I note that Professor Breslin commented that what appeared to be pneumonia to the pathologist could have been actually a contused lung trauma. My comment is that although that is possible, I would have thought that a pathologist would be able to recognise the difference between pneumonia and contused lung.

Mrs Cameron's description of his respiratory illness prior to his death and the post-mortem report make me feel still that he did have pneumonia and that it is likely to have further clouded his consciousness which might have already been clouded to some extent by the alcohol.

I believe that it is likely, therefore, that he did have pneumonia and that it contributed to his death in the way that I have previously stated despite the blood alcohol reading."

RESPONDENT'S MEDICAL AND OTHER EVIDENCE

15. The documents relating to the inquest into the Veteran's death at Mudgee Local Court included statements from witnesses to the accident, the results of a blood alcohol analysis in relation to the Veteran and an autopsy report. The autopsy report by Dr Peter Haron, found, among other things, that the Applicant had a small tear of the thoracic aorta with a large mass of blood clot and current left-sided pneumonia. The blood alcohol analysis report conducted under the auspices of the Health Commission of New South Wales found a blood alcohol level of 0.2 grams of alcohol per 100 ml of blood.

16. The Coroner's formal finding was that the Veteran "died of the effects of the multiple injuries sustained then and there, whilst crossing that street, he was struck by a motor vehicle driven by Pauline Mavis McCallum". The transcript of the inquest shows that the Coroner reached the following conclusion:

"I find that the dark clothing worn by the deceased, his level of inxociaation (sic)(intoxication) as established by the government analysists (sic) report, the evidence of his running and the fact that the area is not well lit, all contributed in some way to this accident."

17. Sergeant Long of Mudgee Police Station said in his statement of 23 April 1980 that his inquires showed that the Veteran was not a heavy drinker and is believed to have consumed about four middies of beer between 4pm and 5:30pm on the day of his death. Mr Peter Holland, an independent witness in his statement dated 18 April 1980 said that the Veteran walked across to the middle of the road and then started to run across the road and that was when the car hit him. He also said that the car was going at about 30 miles per hour. The driver of the car Mrs Pauline McCallum said in her statement dated 18 April 1980 that she was driving at no more than 30 to 35 miles per hour. Mr John Bulinski, the Veteran's son in law said that he had left the Veteran's address at about 7:40pm on Friday 18 April 1980 with his father in law and dropped him at the Court House on Market Street where he had to cross the street to go to the Hotel. He did not see the accident.

18. In his report dated 11 November 2002 Professor A.B.X. Breslin, Consultant Thoracic Physician, concluded that it is more likely than not that the Veteran had chronic simple bronchitis and that was due to his cigarette smoking. He then gave the following opinion:

"I do not believe that a reasonable hypothesis can be made linking this man's death with his chronic bronchitis. There seems little doubt that he had chronic bronchitis but no objective evidence that it was causing dyspnoea. The pneumonia found at post mortem may have in fact been part due to contusion and there is absolutely no objective data whatsoever to support the theory that he had a fever at the time of the accident. What is absolutely certain is that at the time of the accident he had a high blood alcohol level. In view of his age and this blood alcohol level together with the conditions on the street at the time and his dark clothing there is a entirely logical explanation for the accident to have occurred. Suggesting that a fever impaired his judgment is fanciful and not consistent with any of the known facts apart from the fact that the post mortem reports pneumonia, which as mentioned above may have in fact been part contusion. No objective evidence is presented to indicate that he definitely had a fever. There is a complete explanation for the accident in that he was intoxicated and the conditions of the accident scene were such as to render him vulnerable. In order for a fever to cause significant mental impairment and confusion it would have to be very substantial and this is hardly the case in this man who was able to visit the hotel and drink to the point of intoxication. Somebody with a fever impairing their mental judgment could not be so inclined to drink heavily, particularly if they were not used to being a heavy alcohol drinker.

In my opinion Mr Cameron's bronchitis made no or only negligible contribution to his death. It is only conjecture whether his chronic bronchitis was sufficient to increase his risk of pneumonia but in any event I do not believe that the pneumonia contributed to his death in any way. No evidence for a fever is presented and the evidence would suggest that even if he had a fever it must have been mild and quite insufficient to have caused impairment of his judgment. Dr Burns' conclusions are not consistent with the Coronial records."

SUBMISSIONS

19. The Applicant's submission was that the Veteran's pneumonia and consequent fever, confusion or debilitation, contributed in a material degree to his death. In this respect he referred the Tribunal to the decision of the Federal Court in Treloar v Australia Telecommunications Commission (1990) 26 FCR 316. He submitted that, because the kind of death that was suffered by the Veteran is not covered by an SoP then the decisions in Byrnes v Repatriation Commission (1993) 177 CLR 564 and Bushell v Repatriation Commission (1992) 175 CLR 408 apply. Counsel for the Applicant submitted that the Tribunal must look at the whole material before it, that there can be more than one available hypothesis and that the existence of facts inconsistent with the hypothesis does not render the hypothesis unreasonable.

20. Counsel for the Applicant also submitted that the Respondent's approach to the application was to identify too many sub-hypotheses and that rather the Applicant's hypothesis should be viewed as a whole.

21. Counsel for the Applicant also referred the Tribunal to the decision of the Federal Court in Dixon v Repatriation Commission [1999] FCA 582. He further submitted that there is no material before the Tribunal to allow it to be satisfied beyond reasonable doubt that the Veteran did not die in accordance with the Applicant's hypothesis. Counsel for the Applicant also referred the Tribunal to the decision in Re McLean and Repatriation Commission (1997) 48 ALD 165.

22. Ms Breuer for the Respondent submitted that the Applicant's case is speculative and that it is necessary to break down the hypothesis in order to determine whether there is material going to each of the elements of the hypothesis. Ms Breuer also submitted that there is nothing in the available contemporaneous records to indicate that anyone knew that the Veteran had pneumonia or that he was too sick to go to town three times in one day, including walking to and from the Hotel, drinking and walking home. Ms Breuer noted that there is no mention of pneumonia or illness to the Coroner or the Police. She also noted that the Veteran, according to witnesses to the inquest, was able to run.

23. Ms Breuer also referred to the Tribunal to the decision in McLean (supra) and to the decision in Elliott v Repatriation Commission [2002] FCA 26. She submitted that reasonable doubt as to the correctness of the Applicant's hypothesis is provided by the Veteran's blood alcohol level and the fact that he left his home three times on the day of his death.

Consideration

24. The Veteran's service in the Australian Army from 1942 to 1945 constitutes eligible service including operational service as defined in section 6 of the Veterans' Entitlements Act 1986 ("the Act"). Consequently the standard of proof to be applied in determining this matter is that provided in sub-sections (i) and (iii) of section 120 of the Act.

25. The Tribunal is required to make a finding that the veteran's death was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal shall be so satisfied if the material before it does not raise a reasonable hypothesis connecting the veteran's death with the circumstances of his war service. Section 120 of the Act is reproduced earlier in this decision. The High Court on two occasions has considered the construction of section 120: see Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 117 CLR 564. In Byrnes at 571 the Court set out an authoritative statement of 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."

26. There is no dispute that the conditions relevant to those aspects of the Applicant's hypothesis linking his death with his admitted war caused chronic bronchitis are not the subject of SoPs in existence at the time of the decision under review. In other words, neither death by tear to the thoracic aorta nor pneumonia are or were at the time of the decision, the subject of SoPs. The Tribunal must therefore look to the material before it and apply section 120 of the Act in accordance with the steps set out in Byrnes (supra).

27. The hypothesis put forward by the Applicant is that the Veteran's chronic bronchitis gave rise to pneumonia some three days prior to the Veteran's death and that pneumonia produced a fever and consequent delirium and confusion which rendered the Veteran unable to protect himself or remove himself from the path of an oncoming vehicle.

28. The Tribunal considers that the evidence of the Applicant that the Veteran had developed pneumonia and been diagnosed as having pneumonia some three days before the day of his death, together with the autopsy report which notes the presence of "current pneumonia" point to that aspect of the hypothesis that has the Veteran developing pneumonia immediately before his death.

29. As to that aspect of the hypothesis that has the veteran being so affected by his pneumonia as to be debilitated and unable to properly react to an oncoming car, the only material pointing to such an effect is Dr Burns' evidence. His evidence was that the Veteran's pneumonia was likely to have been accompanied by fever which, in turn, was likely to have given rise to delirium or confusion, rendering the Veteran unable to react appropriately to the threat of an oncoming car. When the Veteran's blood alcohol reading of 0.2per cent was drawn to Dr Burns' attention he maintained his view that the Veteran's pneumonia contributed to his death in the way described above.

30. The Tribunal, at the hearing, drew the parties' attention to the entry, in Black's Medical Dictionary, 39^th Edition, for "pneumonia" which says, among other things:

"Symptoms the common symptoms of pneumonia are cough, fever, sometimes with RIGORS, pleuritic chest pain and shortness of breath. Sputum may not be present at first but later may be purulent or reddish (rusty)."

31. There is thus material before the Tribunal, in Dr Burns' reports and in the excerpt from Black's Medical Dictionary that points to the Veteran suffering a fever immediately before his death. However, there is no material, other than Dr Burns' assertion, pointing to the Veteran's fever having given rise to delirium or confusion at the time he crossed the road.

32. It is at the point of considering the last aspect of the hypothesis, that is, that the Veteran's fever rendered him confused or delirious and prevented him from avoiding an oncoming vehicle, that the issue of the reasonableness of the hypothesis becomes most pointed. The Tribunal sought guidance on this issue from a number of the decisions referred to by the parties.

33. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:

"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 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)".

34. In the decision in McLean (supra) Senior Member Beddoe (at 179) said:

"In this case I am satisfied that Dr Seaton's hypothesis is not fanciful and is, in fact, the most likely explanation for the veteran's death. He was an experienced log getter, clearly aware on the day of the dangers of the situation in which he was working but died because he was unable to avoid the descending boulder. His restricted mobility is a likely explanation for this situation and a material reason for that restricted mobility was the war-caused condition of lumbar spondylosis. On the raised facts the hypothesis must be held to be a reasonable hypothesis, and I so decide."

35. 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."

36. 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."

37. 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: see the emphasised paragraph in [17] above.

[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.

38. In Elliott v Repatriation Commission (supra) the Federal Court discussed the way in which the Tribunal must consider and analyse the material before it when considering whether a reasonable hypothesis exists:

"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. "

39. It could not be said that the "most likely explanation" (McLean, supra) for the Veteran being struck by the vehicle is the symptoms of his pneumonia. There is no material, other than the assertion of Dr Burns, that points to the Veteran being confused or delirious. Indeed there is a body of material that points away from it. The Inquest into his death concluded that that there were a number of other reasons for him having been struck by the vehicle including his level of intoxication, his dark clothing and the poorly lit street. This alone, however, does not prevent the hypothesis from being found to be reasonable.

40. However, it should be noted that two witnesses to the inquest have the Veteran running across the road, presumably after he saw the vehicle. Most notably, the Veteran had, notwithstanding his illness, left his home on three occasions that day: first, on foot for about one hour, to attend to an errand; second, again on foot, to consume an amount of alcohol over approximately one and a half hours sufficient to give him, after a lapse of more than two hours, a blood alcohol reading of 0.2percent and: third, to attend the hotel again, and presumably to return on foot, in order to purchase more alcohol. Commonsense informs that a man with a fever sufficient to cause confusion or delirium would not undertake these activities and nor would he be inclined, as a normally moderate drinker, to consume an amount of alcohol sufficient to give him a reading of 0.2per cent. The Tribunal also notes the opinion of Dr Breslin that "(i) n order for a fever to cause significant mental impairment and confusion it would have to be very substantial and this is hardly the case in this man who was able to visit the hotel and drink to the point of intoxication. Somebody with a fever impairing their mental judgment could not be so inclined to drink heavily, particularly if they were not used to being a heavy alcohol drinker".

41. While the Applicant's evidence was that she found bloodstained tissues in the Veteran's room after his death, this does not point to the Veteran suffering from confusion or delirium at the time of his death and could indicate, given the material in Black's Medical Dictionary, that he was in the later stage of pneumonia.

42. Having considered the whole of the material before it, the Tribunal is of the view that there is no material pointing to the Veteran having had, on the day of his death, fever, confusion or delirium of a degree sufficient to impact on his ability to avoid an oncoming vehicle. Rather, there is material before the Tribunal which points to the Veteran being sufficiently well to leave his home on three occasions, twice on foot, and to consume enough alcohol to produce a blood alcohol reading of 0.2 per cent.

43. In these circumstances, the Tribunal considers that the material before it is neither consistent with the suggestion that the Veteran was suffering from a fever sufficient to produce delirium or confusion, nor allows that to be assumed. It follows that the hypothesis is not, pursuant to section 120(3) of the Act, reasonable. In the absence of a reasonable hypothesis, the Applicant's death cannot be found to be war caused.

Decision

44. The Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: .....................................................................................

Associate

Date of Hearing 2 December 2002

Date of Decision 8 January 2003

Counsel for the Applicant Mr M Vincent

Advocate for the Respondent Ms S Breuer