Repatriation Commission v Enid Valerie Watts [1997] FCA 159 (4 March 1997)

CATCHWORDS

VETERANS' ENTITLEMENTS - Widow's pension - whether veteran's death from helicopter crash war-caused - whether reasonable hypothesis raised - connection between helicopter crash and veteran's heart disease - whether hypothesis disproved beyond a reasonable doubt.

CAUSATION - connection between death and war service - war-caused disability not the direct cause of death - indirect cause of death

Veterans' Entitlements Act 1986 (Cth) ss 8(1)(b), 120(1),(3)

March v E & M H Stramere Pty Ltd [1991] HCA 12; [1991] 171 CLR 506

Bushell v Repatriation Commission [1992] HCA 47; [1992] 175 CLR 408

Byrnes v Repatriation Commission [1993] HCA 51; [1993] 177 CLR 564

Medlin v State Government Insurance Commission [1995] HCA 5; [1995] 182 CLR 1

Lowerson v Repatriation Commission [1994] 50 FCR 252

Owens v Repatriation Commission [1995] 59 FCR 559

McMahon v Repatriation Commission unreported, Burchett J, 21 July 1993

Gilbert v Repatriation Commission [1989] 86 ALR 713

Stares v Repatriation Commission unreported, Full Court of the Federal Court (Black CJ Ryan & Einfeld JJ), 28 May 1996

Repatriation Commission v Hunter [1996] 39 ALD 1

REPATRIATION COMMISSION v ENID VALERIE WATTS

No. NG 336 of 1996

EINFELD J

SYDNEY

4 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 336 of 1996

GENERAL DIVISION )

Between: REPATRIATION COMMISSION

Applicant

And: ENID VALERIE WATTS

Respondent

MINUTE OF ORDERS

The Court:

1. Dismisses the appeal.

2. Affirms the decision of the Administrative Appeals Tribunal of 27 March 1996.

3. Orders that the costs of the respondent be paid by the applicant.

Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

EINFELD J

SYDNEY

4 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 336 of 1996

GENERAL DIVISION )

Between: REPATRIATION COMMISSION

Applicant

And: ENID VALERIE WATTS

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 4 MARCH 1997

Introduction

This appeal by the Repatriation Commission challenges a decision of the Administrative Appeals Tribunal (the Tribunal) on 27 March 1996 which set aside a decision of the Veterans' Review Board made on 4 August 1994. The Board had affirmed the decision of the Commission to reject a claim for a war widow's pension by Enid Valerie Watts, whose late husband William Henry Watts served in the Australian Army from 1942 to 1946 and died in a helicopter accident on 20 March 1993. The legal system has taken 4 years to get the widow to this point. She is now 78 years of age. No other words are necessary.

In order to be successful in her claim, it is required by the Veterans' Entitlements Act 1986 (the Act) that the veteran's death be war caused. For this purpose, section 120 of the Act requires the establishment of a reasonable hypothesis of nexus between the death and the condition which caused it on the one hand, and the veteran's war service on the other. If a reasonable hypothesis is established, a pension will be payable to the widow unless the factual basis of the hypothesis is disproved beyond reasonable doubt.

The medical history

The medical evidence showed that the veteran had suffered coronary artery and peripheral vascular disease since the 1960s. He had at least two episodes of myocardial infarction, hospital admissions for myocardial ischaemia, and surgery to the arteries of his left leg to relieve an obstruction. A post mortem examination confirmed the diagnosis of severe general coronary artery occlusion.

The evidence was that Mr Watts was a non-smoker at enlistment, that he commenced smoking during his war service, and that he continued until 1985. The respondent did not dispute, and the Tribunal accepted, that Mr Watts' ischaemic heart disease, caused by his smoking, was service related.

The legislative framework

The Act has now been substantially amended so what follows relates to the position as it was at the time of Mr Watts' death. Sections 8 and 120 of the Act are relevant to determining whether the veteran's death was "war caused" within the meaning of the Act. Section 8 relevantly provided:

8. (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 attributal 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; .....

The method and standard of proof in relation to the death of a veteran who gave operational service is found in section 120 of the Act as it was at the relevant time:

120(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.

.....

(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.

The hypothesis and s 120(3)

The first question raised in this appeal concerned the existence of a reasonable hypothesis as referred to in subsection (3). In Bushell v Repatriation Commission [1992] HCA 47; [1992] 175 CLR 408, Mason CJ, Deane and McHugh JJ stated at 413:

Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.

The material will raise a reasonable hypothesis (at 414) 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.

In Byrnes v Repatriation Commission [1993] HCA 51; [1993] 177 CLR 564 the High Court further detailed the correct application of section 120(3). At 571 Mason CJ, Gaudron and McHugh JJ said:

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 claim fails. Proof of facts is not in issue at this point.

The Commission, and the Tribunal standing in its place, are required, firstly then, to assume that the facts raised by the veteran, i.e. the materials evidenced to support the hypothesis offered, are true for the purpose of determining whether the hypothesis is reasonable.

The fact that some evidentiary material may tend to disprove the hypothesis will not of itself be sufficient to say that the hypothesis has not been raised by the material or make the hypothesis obviously fanciful or tenuous. What subsection (3) asks is whether the raised facts support, or give rise to, an hypothesis that is not contradicted by known scientific facts or is not obviously fanciful or tenuous, not whether there are any other facts that might tend to disprove the hypothesis. If the evidentiary material dos not point to facts which support the hypothesis, the hypothesis is not raised by the material. As was stated in Owens v Repatriation Commission [1995] 59 FCR 559 at 575:

..... it cannot be stressed too often how important it is not to engage at this stage in a weighing up of contradictory evidence but to limit the analysis to whether the facts raised by the evidentiary material in the case do or do not point to and support the hypothesis.

Although one basis for rejecting the reasonableness of a hypothesis is if it conflicts with known scientific facts, a hypothesis may still be regarded as reasonable even if it actually conflicts with known medical opinions. As Mason CJ, Deane and McHugh JJ commented in Bushell at 415:

Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion. (emphasis added)

In McMahon v Repatriation Commission (unreported 21 July 1993), Justice Burchett considered a claim by the widow of a veteran that the veteran's alcoholism had been caused by his service. There was not, however, any evidence before the Tribunal concerning when and why, much less in what quantity, the veteran had commenced drinking. In that instance, his Honour declined to declare entitlement to a pension because of the existence of a mere theoretical possibility, as opposed to raised facts. At 20 his Honour said:

Although the amended notice of appeal did not contain any ground to this effect, counsel also argued that the Tribunal erred in law when it said: "There is absolutely no evidence at all as to why the Deceased commenced to drink". I think in the context, and I have previously quoted the passage in its relevant context, it is clear that this statement was intended to point to a contrast between evidence directly revealing a reason and the mere raising of theoretical possibilities. So understood, the statement is irreproachable. Counsel's argument overlooked that there really could not be evidence of the reason why the deceased commenced to drink in the absence of any evidence to show when he commenced to drink.

However, it is also clear from the authorities that there is no requirement for there to be evidence to support the hypothesis at every point. A distinction must be made between a 'merely abstract' hypothesis which lacks support in, although 'left open' by, the evidence, and a hypothesis which is supported by some evidence having relevance to the particular case. This was made clear by Justice Hill in Gilbert v Repatriation Commission [1989] 86 ALR 713 at 719:

It seems to me relatively clear, both from the wording of s 120(3) and, indeed, from what was said in East's case that an hypothesis advanced in abstract which is not grounded in facts which are before the tribunal could not be a reasonable hypothesis. The hypothesis must expressly be one which is raised by the material which is before the tribunal. Even if it be a possible interpretation of s 120(3) that an abstract hypothesis is raised merely by the assertion of that hypothesis, such an hypothesis could not be said to be a reasonable hypothesis of the relationship between the injury, disease or death, on the one hand, and the war service, on the other.

Thus, s 120 is not concerned with abstract theories or hypotheses but is concerned with hypotheses which are grounded in fact. In other words, there will be a need for some evidence before the tribunal to convert an hypothesis from being abstract to one having relevance to the facts of the particular case. In the absence of such facts which are a condition precedent to the hypothesis, the hypothesis even if it may be said to have been raised at all will certainly not show any relevant connection between the injury, disease or death and the war services and for that reason would not be a reasonable hypothesis. (emphasis in original)

As a Full Court of this Court (Black CJ, Ryan and Einfeld JJ) stated in Stares v Repatriation Commission, (unreported 28 May 1996) at 10:

The question s 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.

It is not a question of how suggestive of the proposed hypothesis the facts have to be. As was noted in Bushell, neither scant evidence nor lack of support will make a hypothesis, raised by the facts and propounded by an expert in the field, unreasonable. At 414:

Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc., of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists .....

As was stated in the joint judgment of Beazley J and myself in Lowerson v Repatriation Commission [1994] 50 FCR 252 at 261:

As will not infrequently happen, some of these facts might tend to disprove the hypothesis, or do so at least as much as they assist to establish it. To the extent that they are not in the former category they are not "raised facts" because they do not "support the hypothesis". But this list clearly raises matters and identifies evidence which if accepted or found to be true, point to alcohol as a manifestly reasonable hypothesis of the cause of the veteran's death, in accordance with the concept defined in East and Bushell. They are the types of material upon which circumstantial cases are regularly put to juries in criminal proceedings, such as to establish the defence of provocation referred to by the majority in Bushell. Under s 120 their reliability is not to be challenged until the Tribunal comes to determine whether it is satisfied beyond reasonable doubt that they are unproved ("do not exist").

A hypothesis is a "possibility". As long as the material before the Tribunal is able to point to facts capable of supporting the possibility put forward, and it is not obviously fanciful or tenuous, a reasonable hypothesis will have been raised for the purpose of subsection 120(3).

The raised facts

Before the Tribunal there was evidentiary material of the following facts:

1. The veteran suffered coronary artery disease which, in the opinion of Dr Eric Schiller a specialist cardiologist, was linked to his smoking which commenced during service. It was conceded by the Commission that the veteran's ischaemic heart disease was service- related.

2. Some weeks before his death, the veteran was admitted to hospital for treatment of angina.

3. On the date of the veteran's death, a family barbecue was being held at the farm of his son Gary at Tuggerah.

4. Christopher Gibb, the veteran's grandson, had hired a helicopter and brought it to the farm that day. Mr Gibb flew four 'joy' flights for the family during the day, each of approximately ten minutes duration. The flights were similar in route, covering the area to the north-east of the property to Tuggerah Lake, then turning to the south-west of the property in the general area of the F3 Freeway before returning to land.

5. The veteran expressed concern about taking a flight in the helicopter -

(a) to his wife:

He didn't want to go up in the helicopter at all. He was very nervous about going up in the helicopter and especially when he arrived and he saw that it was only a small copter, he said 'I'm not going up in that, no, I don't want to go up in that'. But we thought that Chris would be disappointed if he didn't because Chris was so proud of being -- it was his dream to fly and he was so proud and wanted to fly and we just said: Ah, go on, go up with him, sort of thing, Chris will be disappointed if you don't go. So, he more -- he went but much against his grain, sort of thing, that he went up in the copter because, I mean, he had been a sick man. He'd been a sick man for quite a while. He'd had a large operation, having blood transferred from one leg to the other because of his heart condition. [AB 55]

(b) and to his son:

Well, he wasn't real -- he was quite nervous about it. He'd heard him -- other members of the family speak to him and asking him was he going up and he said, 'No, I don't think so,' and then his vocabulary, he said 'Not on your life, I don't think I could handle that,' but then he must have changed his mind after he spoke to me. [AB 59]

6. Prior to taking off with the veteran, the pilot said he would go to Warnervale to get fuel. The veteran gave him money for fuel.

7. The helicopter took off and flew in the general direction of the lake. A short time later, it was seen flying on a southerly track, south of the departure point. It turned west and flew over the F3 Freeway at low altitude before turning to the east and flying back across the freeway to the south of Cobbs Road. As the helicopter passed over the freeway, it descended gradually and was seen to collide with high tension power transmission lines, severed two of them, crashed and burst into flames. [AB 176] Both the veteran and his grandson were killed.

8. Gary Watts was not aware of any power lines in the vicinity [AB 61], and prior to any flights being taken, he told the pilot that there were none near the property [AB 221]. Evidence was given to the coroner that the power lines which the helicopter collided with had been erected two months before the accident. [AB 221]

9. No mechanical defects were found with the helicopter that were likely to have contributed to the accident. [AB 222]

10. Weather conditions on the day of the flight were fine.[AB 176]

11. The pilot had completed 5 hours of low flying instruction some 8 months prior to the accident date as part of the requirement for the issue of a mustering endorsement. [AB 92]

12. No reason emerged as to why the pilot was operating at the height he was at the time. [AB 177]

13. The pilot was regarded as experienced and responsible by his flying instructor:

On the day Chris hired the helicopter he was in a good mood. Chris was a very competent pilot. His skill level was very good. He had accumulated about 120 flying hours. I trained Chris Gibb. He was a very mature and level headed man. I feel he would never be reckless while flying any helicopter. [AB 189]

14. In Dr Schiller's opinion, it was probable that the veteran's cardiovascular disease coupled with tension and anxiety would produce acute symptoms such as acute pain, breathlessness or fainting from ischaemia, arrhythmia or a myocardial infarction. This may have alarmed the pilot causing him to return to the house in an emergency situation and to accidentally collide with the transmission lines [AB 150-1]. Dr Schiller considered the probability of a myocardial infarction having occurred during the flight as more than 50% [AB 48]. To form this opinion, which was expressed both in his report and in evidence before the Tribunal, Dr Schiller relied upon the facts that the veteran was in hospital some weeks before the accident with angina and that he was apprehensive about the flight.

15. Dr Schiller stated in his report that a myocardial infarction or an episode of ischaemia or arrhythmia occurring seconds or minutes before the crash would not be visible post mortem because of lack of time for cellular changes to occur. [AB 151]

16. Detective Constable Bassingthwaighte, the police officer who investigated the fatal crash, was of the view that it was possible that the veteran suffered a medical emergency during the helicopter flight:

It is possible that the passenger William Watts suffered a medical emergency whilst flying from Tuggerah to Warnervale and the pilot was endeavouring to return to Tuggerah as quickly as possible in order to render the elderly man assistance. I have no independent eye witness evidence to support this opinion. I base this view on the autopsy report by Professor Hilton in that the physical condition of Mr Watts was very poor at the time of the crash. [AB 186]

17. The Coroner Mr Halliday was of the opinion that it was more likely than not that the veteran may have suffered some difficulty inside the helicopter, and in accordance with his training the pilot attempted to land the aircraft as soon as possible.

The submissions of the parties

The Commission contended that as a matter of law these facts are not sufficient to establish the relevant causal link between the veteran's war service and his death in the helicopter accident. This submission is elliptical and argumentative for it fails to observe the rules applying to the two stage process. The first question is whether the facts raised by the evidentiary material in the case do or do not point to the hypothesis that the veteran experienced some heart- related difficulty during the helicopter flight which alarmed the pilot and caused him to attempt to land the aircraft as soon as possible.

As the summary of the raised facts identifies, there are factors pointing to the hypothesis. At least one specialist eminent in the field considered that it was consistent with the particular medical history of the veteran and existing scientific knowledge. This view was supported by the conclusions of a police officer and the Coroner that it was possible, even probable that the veteran's heart condition might have caused an emergency situation which led to the crash.

Section 120(3) is not concerned with final proof of the hypothesis. It is concerned with what might have happened, not what did happen. In my opinion the Tribunal applied the correct approach. The hypothesis was based on the raised facts and was put forward by a medical practitioner who is eminent in the relevant field of knowledge.

Raised facts and assumed facts under s 120(3)

In some instances, as the High Court stated in Byrnes at 570, an hypothesis may assume the occurrence or existence of a fact. The Commission submitted that the facts raised by Mrs Watts to support the hypothesis were in truth mere assumptions, and were not therefore properly called facts raised under the applicable legal test. In particular, the Commission alleged that the suggestions that

a) the veteran might have had some acute episode caused by his cardiac condition;

b) there might have been an emergency situation on the helicopter;

c) that the (possible) emergency might have been caused by the (possible) episode which might have caused the pilot to change course to return to his starting point to get help for his grandfather,

were in truth mere assumptions, and that the Tribunal incorrectly allowed them to be considered as part of the hypothesis. It was submitted that McMahon represented authority that facts essential to the hypothesis cannot be assumed, and that in this case the "raised facts" are mere assumptions.

If each element of the hypothesis had to be supported by evidence tending to establish it, it would convert the hypothesis into a prima facie finding or conclusion. That is why the cases have said that a reasonable assumption may be considered as part of the raised facts.

In the present case, the Tribunal did not hold that a reasonable hypothesis for the purpose of s 120(3) may be or was raised by an assumed fact in isolation. It is clear that the assumed facts were considered by the Tribunal in the light of all the other material, in particular the fact that the veteran was in a state of apprehension about the helicopter flight, and that he had a diagnosed heart condition. It was not contested before the Tribunal and this Court that the veteran's heart condition was war-caused. There was also material before the Tribunal, in the form of the opinion of Dr Schiller, that it was probable that the veteran's apprehension about the flight, when combined with his cardiovascular disease, led him to experience acute symptoms which alarmed the pilot and caused him to accidentally collide with the power lines.

These facts raised before the Tribunal clearly give rise to the hypothesis. There was no material which suggested that the hypothesis was contradicted by scientific facts or was obviously fanciful.

The hypothesis and s 120(1)

If there is a reasonable hypothesis of a connection between the service and the injury, disease or death, the claim is then dealt with in accordance with section 120(1). At that point the Commission must determine that the injury, disease or death was war-caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination".

The second question raised in the appeal was thus whether the Tribunal erred in its application of the onus of disproof in section (120(1). The test was stated in Byrnes at 570:

Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.

This thesis was summarised at 571:

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.

As was stated in Lowerson at 261:

One of the problems to have arisen in the very difficult task of interpreting s 120 is the concept of "facts" which do or do not exist. It is at least confusing, if not more, to speak of a true or false (or untrue) "fact". What is really being referred to is evidentiary material, in an administrative law sense, which suggests a particular factual conclusion. It is this material which may be shown to be true or untrue in the exercise to be performed under subs (1); that is, to adapt the language of Byrnes, a piece of factual material needed to sustain the hypothesis may be disproved, or the truth of a necessary fact inconsistent with the hypothesis may be proved, beyond a reasonable doubt.

The Commission submitted that the Tribunal failed to consider under section 120(1) whether the evidence concerning low flying allowed it to be satisfied beyond reasonable doubt that there was no sufficient ground for making the determination. In particular the Commission claimed that the Tribunal failed to acknowledge a fact inconsistent with the hypothesis, namely that there was ample evidence that the pilot was flying low during each flight prior to the fatal flight. This evidence included the Bureau of Air Safety Investigation (BASI) report which stated (at AB 91):

The flights were similar in route, covering the area to the north-east of the property in the general area of the F3 Freeway before returning to land. Witnesses reported seeing the helicopter flying at altitudes as low as 100 feet above ground level during those flights.

There was also the evidence of Gary Watts, the veteran's son, who stated that when he had been a passenger in the helicopter, it had flown 'well above tree height' (AB 58). When the veteran was in the helicopter, Gary Watts described what he observed (at AB 59):

This time he came back from the lake area and flew quite low over the house. We observed that that was a bit of a sign to us that he was going to Warnervale to refuel the machine which he said he - if he was going to take more people up he'd have to get more fuel. So, we just assumed that he was just letting us know that that was where he was going and then he flew off in a reasonably low [sic] towards the freeway and we never thought any more of it until some time later we heard a bit of a bang...

When asked whether he could tell the height the helicopter was flying at when he was a passenger, Gary Watts stated at AB 60:

... No, very, very difficult when you haven't been up there before but, as I said in the police statement I figure we'd be between two and three telegraph pole heights. That's how I - that's how I measured it. On looking back at it from where I work now, I see quite a few helicopters come through into the landing area at the Wyong race course and they seem to be around about the height that I think we were at.

Late movements of the fatal flight itself were witnessed. One of the witnesses referred to in the BASI report was Brianne Bartos who stated [AB 187]:

I looked back and I saw a small red and white helicopter heading south above the F3 Freeway. It seemed to be coming across the freeway. The helicopter was about 30 to 40 metres off the ground and between the Cobbs Road overpass and the rock cutting.

Another eye witness was Paul Housego whose statement is at AB 160:

I saw a helicopter flying very low in a North Easterly direction from my house. I watched it for a few seconds, it went out of sight, to the North, I felt there was something wrong it was very low.

The evidence given by these witnesses of low flying, if accepted, would indicate that the pilot was acting contrary to official aviation standards which mandate that flying over populated areas be not less than 1,500 feet, and a minimum of 500 feet for other areas. The Commission submitted that the Tribunal erred by failing to consider under section 120(1) whether the evidence of low flying allowed it to be satisfied beyond reasonable doubt that there was no sufficient ground for making the determination that the plane was flying low due to an emergency landing. Consequently, it was submitted that the Tribunal was merely 'wrapping up' when it stated in its reasons for decision:

50. In applying section 120(1) of the Act, the Tribunal notes that the case put by the respondent, though putting a contrary view, does not disprove beyond reasonable doubt any of the facts supporting the hypothesis or prove beyond reasonable doubt any facts disproving the hypothesis. [AB 228]

In my view, what the Tribunal was indicating in this paragraph was that it was aware of what was required, and that no facts had been raised or evidence put which suggested that a material fact had been disproved beyond reasonable doubt nor had a new fact, indicating that the hypothesis could not be true, been proved beyond a reasonable doubt. So construed, this paragraph does not manifest any legal error.

The witnesses called to give evidence before the Tribunal did not say that the helicopter was flying low on earlier trips, with the exception of the occasion when the helicopter was just above the house and the pilot was apparently signalling that he was going to Warnervale for more fuel. In any event, long experience has shown me that divergences between the accounts of eye witnesses of the same event invariably occur, often to an extraordinary degree. Furthermore, the Tribunal was not told a number of other matters, such as for example, how long, for what distance, and in what circumstances the witnesses observed any alleged low flying.

The tests of section 120 do not include whether there is an equally or additionally plausible alternative hypothesis, such as pilot negligence. The issue is whether the hypothesis submitted is reasonable, and if so, whether it is factually disproved beyond a reasonable doubt. This hypothesis clearly passed both those tests.

Causation

In all cases, there is a need to establish a relevant causal connection. In this case the veteran's cardiovascular disease was not the direct cause of his death, so that to come within section 8 his widow must show that the death arose out of or was attributable to the service rendered, or was due to an accident that would not have occurred but for that service.

The leading statement on causation is the majority judgment of the High Court in Medlin v State Government Insurance Commission [1995] HCA 5; [1995] 182 CLR 1 at 6 where it was said:

... the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved on the probabilities, as a matter of commonsense and experience.

And as I said in Repatriation Commission v Hunter [1996] 39 ALD 1 at 8:

There is a limit to what can genuinely or with commonsense be said to be "caused by" or "attributed to" or to have "arisen out of" war service because at some point the chain of causation will be broken by subsequent acts or circumstances.

The Commission submitted that it is not sensible to say that the veteran died of anything other than the low flying of the pilot. In its submission, Mrs Watts cannot sensibly argue that 'but for' the heart condition of the veteran, the pilot would not have turned back when he did and therefore would not have hit the power lines.

In March v E & M H Stramere Pty Ltd [1991] HCA 12; [1991] 171 CLR 506, which was followed in Medlin, an imaginative illustration of Justice Deane at 523 is instructive:

...the mere fact that something constitutes an essential condition (in the "but for" sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a "cause" of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a "cause" of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation.

Obviously the Court must distinguish between those causes which are regarded as being too remote and those which are not. Slavish adherence to and unqualified acceptance of the 'but for' test would lead to the absurd conclusion pointed to by Deane J. The question of causation remains to be determined as a value judgment and as a matter of commonsense.

It is also not the correct approach to look only at the ultimate cause of death. The consequential relationship between death and operational service is not so strict as to require the connection to be the sole or predominant cause, as long as there is a causal nexus of some real degree: Repatriation Commission v Law [1981] HCA 57; [1981] 147 CLR 635.

The facts of this case do not suggest that the helicopter crash broke the chain of causation. On the facts as found by the Tribunal, the helicopter crash which resulted in the death of the veteran was caused by events brought about by his cardiovascular condition. The veteran had a diagnosed cardiovascular condition for which he had received treatment shortly before his death, and was apprehensive about the flight. It is certainly not an unreasonable or impossible proposition that an incident suffered by the veteran during the flight caused the pilot to ultimately crash the helicopter. Like the Tribunal, I am not convinced that there was a novus actus interveniens in the form of pilot error or negligence, or that the risk of injury was not foreseeable.

Conclusion

In my opinion, the Tribunal did not err in law in the formation of the opinions specified in section 120 of the Act. I dismiss the appeal and direct that widow's claim be remitted to the Commission for calculation and payment of the appropriate pension. The Commission must pay the respondent's costs of the application.

For the applicant Mr R. Beech-Jones with Dr J. Renwick instructed by Australian Government Solicitor

For the respondents Mr A. McInnes QC with Mr A. Hill instructed by Kenneth Harrison Solicitor

Date of hearing 3 July 1996

Date of judgment 4 March 1997