Case: Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152
Outcome: cited
The AAT continued as follows: '18. Apart from his lumbar spondylosis the deceased suffered from other non-war caused illnesses including osteoarthritis of the sacroiliac joints and osteoarthritis of the knee joints. It seems to us that those conditions would also have played their part in the deceased's inability to exit the tractor. 19. Ten weeks prior to the accident the deceased had obtained a prescription for an anti-depressant and an analgesic. Again nothing is known as to the frequency with which the deceased availed himself of this mediation and if he had taken any on the day of his death. If he had taken an anti-depressant this may have affected his reaction time. 20. We agree with the Applicant that the material before us has raised an hypothesis, however the real question is whether given all the material before us, the hypothesis can be said to be a reasonable one. 21. Although facts may be assumed for the purpose of constructing an hypothesis, a distinction must be made between assumed facts on the one hand and speculation and conjecture on the other. 22. The fact situation and statement of law by Wright LJ in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 at 169 is particularly apposite in this matter, namely: My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In come cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. 23. As we have previously pointed out, facts may be assumed for the purpose of constructing an hypothesis. However in this case, all that is known is that the deceased suffered from war-caused lumbar spondylosis amongst other diseases which would have limited mobility, and had obtained a prescription for anti-depressant medication. He was killed when a tractor he was driving rolled over. To then say that it was his lumbar spondylosis that prevented him jumping clear of the tractor so as to avoid fatal injury when all he had was one to two seconds in which to take that action is, on what is known in this matter, mere speculation and incapable of raising an hypothesis properly categorised as reasonable'. 18 Accordingly, the AAT affirmed the decision under review. 19 In his written submissions, Mr Vincent, who appeared for the applicant, accepted that a finding as to whether a reasonable hypothesis has or has not been raised is a question of fact. However, he argued that the authorities establish that the AAT, when considering whether a reasonable hypothesis has been raised, is not entitled to find facts, prefer certain material, resolve conflicts or reject matters. 38 I should mention one other matter. The applicant sought to derive comfort from the AAT's reference in its reasons to the distinction between assumed facts and conjecture. According to Mr Vincent, the AAT's citation of Caswell v Powell Duffryn showed that the AAT was purporting to make a finding of fact on the balance of probabilities. 39 I read the AAT's reference as intended merely to indicate that something more than conjecture or speculation is required before a hypothesis can be characterised as reasonable. I do not read the AAT's citation of Caswell v Powell Duffryn as indicating that it was making impermissible findings of fact, whether on the balance of probabilities or otherwise. The AAT was only saying what the authorities have said: the material before the AAT must point to the connecting hypothesis, rather than the connection remaining purely in the realm of conjecture or speculation. 40 The applicant has failed to establish that the AAT erred in law. The application must be dismissed, with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 21 August 2007 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Dibbs Abbott Stillman Counsel for the Respondent: Ms J MacDonnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 August 2007 Date of Judgment: 21 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1290.html