Bawden and Repatriation Commission (Veterans' entitlements)
[2023] AATA 3961
•29 November 2023
Bawden and Repatriation Commission (Veterans' entitlements) [2023] AATA 3961 (29 November 2023)
Division:VETERANS' APPEALS DIVISION
File Number:2022/7808
Re:Julie Bawden
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:29 November 2023
Place:Brisbane
The Tribunal affirms the decision under review.
...............................[SGD]....................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – whether death was war caused – kind of death – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
STATEMENT OF PRINCIPLES
Statement of Principles concerning Chronic Obstructive Pulmonary Disease No.17 of 2023 (Cth)
CASES
Collins v Repatriation Commission [2009] FCAFC 90
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FCAFC 23
Hill v Repatriation Commission [2009] FCAFC 91
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Willman and Repatriation Commission [2007] AATA 1480
REASONS FOR DECISION
Member D Mitchell
29 November 2023
INTRODUCTION
On 27 July 2021, Ms Julie Bawden (the Applicant) made a claim for a war widow’s pension[1] on the basis that the death of her de facto husband, the late Mr Stephen Loughran (the Veteran) was war-caused under the Veterans’ Entitlement Act 1986 (Cth) (the Act).
[1] Exhibit 1, T Documents, T39, pages 174-190, Claim for War Widow’s Pension.
On 4 August 2021, the Respondent determined that the death of the Veteran was not service related.[2] This decision was affirmed by the Veterans Review Board (the VRB) on 17 August 2022.[3]
[2] Exhibit 1, T Documents, T40, pages 191-193, Determination dated 4 August 2021.
[3] Exhibit 1, T Documents, T50, pages 230-242, Reviewable Decision dated 17 August 2021.
On 21 September 2022, the Applicant sought review of the VRB decision by this Tribunal.[4]
[4] Exhibit 1, T Documents, T2, pages 3-12, Application for Review of Decision.
BACKGROUND
The Veteran served in the Royal Australian Navy between 27 November 1965 and
23 July 1970 as an Engineering Mechanic.[5]
[5] Exhibit 1, T Documents, T4, page 16, Certificate of Service.
The Veteran’s service included a period of operational service between 25 May 1966 and 11 June 1966 in relation to service in Vietnam.[6]
[6] Exhibit 1, T Documents, T44, page 203, Claims History.
In November 2007, the Veteran made a claim for disability pension in relation to hearing loss, emphysema and hypertension.[7]
[7] Exhibit 1, T Documents, T16, pages 73-87, Claim for Disability Pension.
On 12 March 2008, the Respondent:[8]
(a)Accepted the Veteran’s bilateral sensorineural hearing loss and asbestos related pleural disease, finding these conditions to be related to service.
(b)Found that the Veteran’s chronic bronchitis, emphysema and hypertension conditions were not service related.
(c)Found that the Veteran was eligible for payment of a disability pension at 30% of the General Rate with effect from 6 August 2007.
[8] Exhibit 1, T Documents, T35, pages 143-150, Decision regarding claim for Disability Pension.
The Veteran was born in September 1947 and was 73 years of age when he passed away on 15 June 2021. The cause of death as stated in his Death Certificate was:[9]
(1)(a) Severe chronic obstructive pulmonary disease with type 1 respiratory failure (b) Hypoxic seizure (c) Right neck of femur fracture (d) Right apical segment pulmonary embolism 2. Hypertension
1(a) 30 years (b) 2 days (c) 2 days (d) 2 days 2. 10 years
[9] Exhibit 1, T Documents, T38, page 173, Death Certificate.
THE LAW
Section 13 of the Act provides that where the death of a veteran is war-caused the Commonwealth is liable to pay a pension to the dependants of the veteran. A dependent is defined to include ‘the partner’ or ‘a widow’.[10] Relevantly in this matter a ‘widow’ includes a woman who was the partner of the veteran immediately before the veteran’s death.[11] The circumstances taken into account when determining whether two people are living together in a de facto relationship include financial aspects of the relationship, nature of the household, social aspects of the relationship, any sexual relationship between the people and the nature of their commitment to each other.[12]
[10] Section 11(1) of the Act.
[11] Section 5E of the Act.
[12] Section 11E of the Act.
Section 8 of the Act defines when the death of a veteran is taken to be a war-caused death. Relevantly section 8(1)(b) provides that the death of a veteran shall be taken to have been war-caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran.
Section 7 of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.
Where a claim for a pension is made that relates to a veteran who has performed operational service, the determination of whether the veteran’s death was war-caused is to be made by applying the ‘reasonable hypothesis’ standard of proof as set out in sections 120 and 120A of the Act.
Relevantly sections 120(1) and 120(3) of the Act provide that:
(1)… 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.
(2)…
(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:
...
(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.
Section 120A of the Act provides how a hypothesis must be assessed:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under section 196B(2) or (11); or
...
that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
…
(c) the kind of death met by the person;
as the case may be.
Statement of Principles (SoP) are determined by the Repatriation Medical Authority (the Authority).[13] If the Authority is of the view that, based on available sound medical-scientific evidence, it is more probable than not that a particular kind of injury, disease or death is related to the relevant service rendered by the veteran it must determine a SoP setting out the factors that must exist and which of those factors must be related to service rendered by a person.[14]
[13] Established by section 196A of the Act.
[14] Sections 196B(2) and (3) of the Act.
A factor causing or contributing to an injury, disease or death is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in section 196B(14) of the Act. For the purpose of this application the circumstance being relied on by the Applicant is that provided by section 196B(14)(b): ‘it arose out of, or was attributable to, that service’.
The role and application of SoPs are usefully explained in the observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
It is necessary to repeat that the SoP has no function in relation to proof or disproof (under s120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual’s claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
The principles followed in deciding whether a death is ‘war-caused’ for the purposes of sections 8, 13 and 120 of the Act was established on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at [97]-[98] as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)...
3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit the within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused...If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The principles in Deledio have been widely accepted and applied, however with the understanding that they do not apply in substitution of the application of the relevant provisions of the Act.[15] There are also a number of preliminary issues that the Tribunal must consider prior to applying the Deledio principles. These preliminary issues were explained by Mansfield, Stone and Edmonds JJ in Collins v Repatriation Commission [2009] FCAFC 90 (Collins) at [18]:
It is common ground that there are necessarily antecedent inquiries before applying ss120 and 120A as explained by the ‘Deledio principles’. They are:
1. whether the claimant was a veteran, or a dependant of a deceased veteran;
2. whether the veteran has suffered an injury or disease or has died...; and
3. … the cause of death or the ‘kind of death’ of the veteran...
[15] Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1 at 16-17; Dunlop v Repatriation Commission [2003] FCAFC 201 at [33].
These preliminary matters are to be determined on the balance of probabilities or to the reasonable satisfaction of the Tribunal.
ISSUES
The issues to be determined by the Tribunal are:
(a) Was the Applicant a dependant of the Veteran;
(b)What ‘kind of death’ did the Veteran suffer;
(c)Whether there is a Statement of Principles in force in relation to that ‘kind of death’; and
(d)Whether the ‘kind of death’ suffered by the Veteran was war-caused.
EVIDENCE
Applicant’s Evidence
The Applicant made herself available to give evidence at the Hearing. She gave affirmed evidence in relation to the poor health of the Veteran during his final hospital admission and in the lead up to his death.[16]
[16] Transcript, pages 12-15.
Medical Evidence
In assessing the Veteran’s claim for a disability pension the Respondent sought a report from Dr Andrew Scott, consultant thoracic, sleep and transplant physician. In a report dated
31 January 2008, Dr Scott provided the following:[17]
…background history of smoking which he commenced at the age of 17.5 years when he joined the Royal Australian Navy. He has previously smoked up to 50 cigarettes a day, but is now down currently smoking 20 cigarettes a day.
….
He has given a history of asbestos exposure when working as an engineering stoker with the Navy. He was often exposed to asbestos lagging around the boilers and pipes, for at least two years.
…
Overall [the Veteran] has evidence of moderate COPD, with moderately severe gas diffusion impairment as suggested by his reduced diffusion coefficient KCO. There are also radiological features suggestive of pleural disease, which may be asbestos related.
[17] Exhibit 1, T Documents, T31, pages 129-131. Report of Dr Andrew Scott.
In a report dated 1 February 2008, a CT of the Veteran’s thorax provided:[18]
History of asbestos exposure. Heavy smoker … abnormal chest x-ray October 2007 with moderate scarring and pleural changes.
…
Comment: There is evidence of previous asbestos exposure with extensive pleural thickening and calcification in both hemi thoraces. There is a background of chronic obstructive airways with gross overinflation and emphysematous changes in the lungs. Some fibrotic scarring is noted at the lung apices and also the lateral aspect of the right midzone.
[18] Exhibit 1, T Documents, T32, page 132, Radiology Report – CT Thorax by Dr Albert Chong.
On 5 February 2008, Dr Scott, having reviewed the radiological report provided a further report outlining that the CT thorax showed:[19]
…evidence of asbestos related pleural disease, with evidence of pleural thickening and calcification within both hemi thoraces. There was fibrotic scarring in both apices, and the lateral aspect of the right mid-zone. The pleural plaques are predominately located in the anterior and lateral aspect of both mid and upper zones, with pleural thickening and calcification at the posterior aspect of both mid and lower zones. Calcified pleural plaques are noted over the right hemidiaphragm, and non-calcified pleural plaques of the left hemidiaphragm. In addition, there are background changes consistent with chronic obstructive airways disease, with gross hyperinflation and bilateral emphysema.
Overall [the Veteran] has features consistent with moderate COPD/emphysema, on a background of asbestos-related pleural thickening with calcification bilaterally.
…
The medical condition which impacts on [the Veteran’s] work capacity relates to his underlying moderate COPD/emphysema, which is smoking related. In addition, there are asbestos related changes involving the pleural membrane, which will also be contributing to a restrictive ventilatory impairment. The relative contribution of the emphysema is 90% and the pleural disease 10%.
[19] Exhibit 1, T Documents, T33, pages 133-134, Report of Dr Andrew Scott.
On 17 February 2022, the Applicant sought a report from Adjunct Professor Roger Allen, thoracic and sleep disorders physician.[20] The Applicant provided Adjunct Professor Allen with a copy of the CT thorax scan report dated 1 February 2008, report of Dr Scott dated
5 February 2008 and the Veteran’s death certificate.[21]
[20] Exhibit 1, T Documents, T46, pages 209-211, Report of Adjunct Professor Roger Allen.
[21] Exhibit 1, T Documents, T46, page 209, Report of Adjunct Professor Roger Allen.
In a report dated 23 February 2022, Adjunct Professor Allen opined that:[22]
Although his heavy smoking history clearly caused the emphysema and COAD, prolonged exposure to dust including asbestos would contribute to COAD but would not cause emphysema.
COAD is characterised by reduced lung function i.e. airways obstruction often with sputum production from irritation to the airways from smoke, just, etc.
I therefore can say without the evidence of a detailed occupation history, lung function test etc. and without having had examined the late patient; significant asbestos disease is enough to cause extensive pleural thickening and pleural plaques which would have made a significant material contribution to the eventual development of COAD but not emphysema.
[22] Exhibit 1, T Documents, T46, page 209, Report of Adjunct Professor Roger Allen.
A coroners cause of death certificate dated 24 June 2021 provided that “severe COPD with type 1 resp failure” was the disease or condition directly leading to the Veteran’s death.[23]
[23] Exhibit 2, Hearing Book, S1, pages 1 and 6, Summonsed material produced by The Prince Charles Hospital.
Under summons, the Prince Charles Hospital provided the Veteran’s records which documented his attendances for medical treatment from 12 June 2021 until his death on
15 June 2021.[24]
[24] Exhibit 2, Hearing Book, S1, pages 1-155, Summonsed material produced by The Prince Charles Hospital.
Under summons, the Metro North Hospital and Health Service (Caboolture & Kilcoy Hospitals) provided records held with regards to treatment of the Veteran.[25]
[25] Exhibit 2, Hearing Book, S3, pages 164-335, Summonsed material produced by Metro North Hospital and Health Service (Caboolture & Kilcoy Hospitals).
The Respondent sought a report from Dr Christopher Zappala, consultant thoracic and sleep physician. Dr Zappala provided a report dated 6 May 2023[26] and gave evidence at the Hearing.[27] Details of that report and evidence is set out below.
Evidence of Dr Christopher Zappala
[26] Exhibit 2, Hearing Book, S2, pages 156-163, Report of Dr Christopher Zappala.
[27] Transcript, pages 15-31.
In the report dated 6 May 2023, Dr Zappala provided a medical history for the Veteran based on the material provided to him. He noted that:[28]
[The Veteran], died on 15 June 2021 at The Prince Charles Hospital having been brought into emergency by the Queensland Ambulance Service following a presumed hypoxic seizure resulting in or occurring concomitantly with a right fractured neck of femur and a small right apical pulmonary embolus. This is in the context of known, progressive, severe, COPD and ongoing smoking – still 15 cigarettes/day at admission.
[28] Exhibit 2, Hearing Book, S2, page 157, Report of Dr Christopher Zappala.
Dr Zappala opined that the Veteran’s kind of death was COPD, outlining that:[29]
The overwhelmingly predominate cause of [the Veteran’s] chronic airway disease and emphysema (COPD) was his lifelong, high-level smoking. This chronic respiratory illness caused significant hypoxia/respiratory failure, loss of function and frailty.
I understand the main contention surrounds the relevance of the asbestos exposure (while working in the Navy) and in particular any contribution of the known asbestos-related pleural plaques or, if present, asbestosis. I note the opinions of Dr Scott and Professor Allen in this regards and concur.
Pleural plaques do not cause respiratory failure or any significant degree of lung function impairment, Asbestos exposure can be associated with some degree of airway dysfunction/lung function abnormalities and emphysema, but these abnormalities are not ‘classic’ for asbestos exposure nor regarded as likely predominant abnormalities in exposed individuals compared to pleural plaques and asbestosis (and cancers). Regardless of this, the extent of [the Veteran’s] overall pulmonary injury is small at most, with the significantly predominant contribution being smoking-related.
There is no evidence of asbestosis so this possibility can be discounted. The pattern of parenchymal thickening/scarring on the CT chest scan is consistent with the severe emphysema/smoking-related injury and is not at all the picture expected with asbestosis i.e. it is not a sub-pleural, basal-predominant reticular infiltrate.
[The Veteran’s] clinical history, disease behaviour and objectives/subjective findings reported are consistent with fairly classic, end-stage smoking-induced COPD/Emphysema. This is therefore largely unrelated to [the Veteran’s] ADF service or deployment.
[29] Exhibit 2, Hearing Book, S2, pages 157-158, Report of Dr Christopher Zappala.
At the Hearing, Dr Zappala appeared by telephone and gave evidence under affirmation.
Dr Zappala:[30]
[30] Transcript, pages 16-31.
·Confirmed his qualifications.
·Confirmed he provided a report dated 6 May 2023 and that he did not wish to add, alter or delete anything.
·Said that he had considered the records from Prince Charles Hospital, a number of radiological reports, report of Dr Andrew Scott, consultant, thoracic, sleep and transplant physician dated 31 January 2008, a further report from Dr Scott dated 5 February 2008, and a death certificate completed by Dr Tan dated 15 June 2021, report of cause of death to coroner completed 15 June 2021, report of Adjunct Professor Allen and a number of other documents referred to at page 1 of his report in formulating his opinion that the Veteran’s death was on account of COPD.
·Said that there was no evidence that the Veteran had asbestosis, stating:[31]
[31] Transcript, pages 16-17.
So asbestosis as being distinct from asbestos pleural plaques; asbestosis being the scarring, the fibrotic change within the lung tissue itself. There was no evidence of that on the scans and clinical material, but obviously there was evidence of significant pleural plaques.
·Explained pleural plaques:[32]
[32] Transcript, page 17.
… they do that only in the pleura, so only in the lining of the lung. And the pleura is usually fairly adherent to the inside of the chest wall or intimately applied to the inside of the chest wall, so they don’t affect volume or function. So in other words, even though the plaques can become quite thickened and even quite widespread, they are confined to that exterior strip around the outside. The patient has normal respiratory mechanics, and the change does not exchange into lung tissue. So if you were to look at it under a microscope, the – that rind, if you want, the outside would be thickened, and the – in a lung tissue, if it was otherwise normal, would look – would look completely normal. So in other words, their gas exchange or their ability to get oxygen from the air space into the blood vessel and the carbon dioxide back would be normal. So there is not real recorded cases, and definitely not in my experience, of a loss of function or respiratory failure being caused by asbestos plaques alone.
·Said that he had seen the CT scan, not just the report, taken when the Veteran was admitted to Prince Charles Hospital with what became his terminal illness and had formed his view based on trajectory over time.
·Said that exposure to asbestos that causes pleural plaques can be relatively fleeting and minimal and in his view the Veteran’s exposure was towards the lower end given the length of time and length of service and various jobs he has undertaken.
·Said that:[33]
[33] Transcript, pages 18-19.
Point two is that, when you look at the balance of risk, the risk here is very significantly in the smoking-related disease area. The exposure there is prodigious and was ongoing at the time of the veteran’s death. Thirdly, when you have significant tissue destruction as you did in the veteran’s scan, i.e. loss of lung tissue and emphysema, of course you get associated scarring, and of course the remaining lung tissue looks different from what it did before. When I look at those scans – well, that scan, and I look at the history, I interpret that scarring as being related to that very long and significant history of worsening COPD, and the scan to me looks classic for that. If I was a radiologist sitting in a reporting room with very limited knowledge of a patient, of course I would give the option of asbestos – of asbestosis just as an option. But I think when you put it in the clinical context, that is not true.
·Said that the conditions other than COPD listed on the Veteran’s death certificate would have had an effect on his death, but he sees them as a result of the extremely parlous respiratory situation and frailty that was clearly evident when he presented to hospital.
·Said there is no difference between COAD and COPD, they are used interchangeably and are airway versus pulmonary.
·When asked if there is a difference between COPD and emphysema, said:[34]
[34] Transcript, pages 20-21.
Yes. So COPD, or COAD, so chronic obstructive pulmonary disease is sometimes used as an umbrella term that encompasses the chronic narrowing of the airways or chronic obstruction of the airways plus emphysema, so it can be used as an umbrella term. I guess, strictly speaking, it refers to the airway component of that disease. But because so many patients have components of both in their mix of their smoking-related illness, it’s used synonymously with both. But it is true to say that there will be some patients who will have predominantly, or if not only, emphysema and no airway abnormality, and that’s how their smoking-related disease will manifest, and you would not, in those cases, call them COAD or COPD because obviously there is no airway obstruction. You would just say ‘emphysema’.
·Explained what was meant on the death certificate by ‘severe COPD with type 1 respiratory failure’ as:
COPD is the clinical, anatomic functional state, the diagnosis. Type 1 respiratory failure is, I guess, an additional diagnosis, the physiologic state, where your oxygen levels are too low. So you’re, for whatever reason, not got enough oxygen in your blood stream. So that would be defined as type 1 respiratory failure.
… So in other words, in this case, we’ve reached a level of severity that, you know, ventilation and gas exchange and so on are not occurring sufficiently for the veteran to keep his oxygen levels in the normal range.
·When asked what caused this, explained:[35]
[35] Transcript, pages 21-22.
So we’ll start with COPD. So I mean, the – in the patients where they have airways disease as well as emphysema and there is ongoing destruction, so there’s loss of lung tissue, there’s further narrowing of the airway, there’s an accumulation of scarring related to the underlying process but also infective exacerbations or exacerbations that they get. And so gradually, the patient loses respiratory function and they become – you know, they eventually reach the point of having respiratory failure. And then what we often find is that something happens, either an infection or like in this case a fall with a pulmonary embolus and so on, and then that then precipitates a decline from which the patient is unable to recover. But very important in the, I guess, pathobiology of the decline in these patients is the lack of movement, the deconditioning, the poor nutrition; all of these things that go with someone who’s becoming increasingly unwell, increasingly unable to move because of chronic breathlessness, and that then becomes part of the problem.
?‑‑‑And I’m sure we’d all just intuitively would appreciate that, if someone’s got pressure sores like this poor veteran had when they came into hospital, that really is an indicator of very significant, you know, frailty and deconditioning and poor nutrition and all those sorts of things which is a marker that he really had no reserve whatsoever and was even losing tissue integrity in his skin areas. So there’s a significant knock-on effect that can occur. So primarily, it relates to the progressive loss of respiratory capacity and function with exacerbations and infections causing quick declines in some cases for those patients and sometimes they can be pre-terminal events; but then as part of the whole syndrome, if you want, which was clearly evident in this case, there’s those other aspects of chronic disease, poor nutrition and weight loss and so on, frailty, which are incredibly relevant in reducing the, you know, the patient’s ability to respond if they have a problem or if something goes wrong.
·Explained that the Veteran’s pleural plaques were significant but had no impact or interaction with his COPD.
·Said that in his view it is possible that the asbestos exposure contributed to the Veteran’s COPD but not to his emphysema, which he said was consistent with the view expressed by Dr Allen.
·Said that the predominate findings from the 2008 lung function tests and the scan show the predominant finding is emphysema.
·Said that when you look at greater than 100 pack-years of smoking and the extent of emphysema on the scan, the emphysema will not have been caused by asbestos exposure, it is all smoking.
·Said that he was quite sure that the contribution overall of asbestos to the airway injury is minimal to negligible compared to all the other exposures and the smoking exposure.
·When asked to explain his understanding of how death certificates are expressed, said:[36]
I think what they’re trying to do is say, obviously, what was the specific thing that the patient passed away from in 1(a), and were there any things that led to – directly led to that being the case, which is the (b), (c), (d). And then the issue 2s are meant to be things like – so let’s say, the patient died, for argument’s sake, from a heart attack, but in fact they did have, you know, asthma as well that actually was a bit of a problem in their – in their final days but wasn’t the reason they died, then that would be under the number 2 bit of the other significant things. But if they had a heart attack and that’s why they died and they were known to have a very long history, for example, of, you know, hypertension or diabetes which would’ve directly contributed to the – to the heart attack, then I think that’s the sort of thing that would go in the (b), (c), (d). That’s how I broadly interpret it.
·Said that the Veteran’s kind of death or cause of death was COPD which included emphysema.
·Said that the operative cause of death was COPD with respiratory failure as the physiological process, meaning that he died from respiratory failure caused by COPD and emphysema.
·Said that in his view the Veteran’s pleural plaques did not contribute to his death.
·Said that the predominate cause of the Veteran’s COPD was smoking and that if he had not have smoked his respiratory health would have been pretty much near normal.
SUBMISSIONS
[36] Transcript, pages 25-26.
Applicant’s Submissions
Ahead of the Hearing, the Applicant filed a Statement of Issues[37] dated 7 February 2023 and a Statement of Facts, Issues and Contentions[38] dated 4 September 2023.
[37] Exhibit 2, Hearing Book, S5, pages 353-355, Applicant’s Statement of Issues.
[38] Exhibit 2, Hearing Book, S6, pages 356-365, Applicant’s Statement of Facts, Issues and Contentions.
In the Applicant’s Statement of Issues, it was outlined that the contentious issue was the ‘kind of death’ suffered by the Veteran. The Applicant contended that the Death Certificate does not mention kind of death but cause of death and that in this case there are multiple causes of death. The Applicant contended that the kind of death met by a person is concerned with causation.[39]
[39] Exhibit 2, Hearing Book, S5, page 353, Applicant’s Statement of Issues, paragraph 1.
The Applicant outlined that COPD was not accepted under the Act and as such they did not consider it to be relevant.[40] The Applicant sought to rely on the following SoPs:[41]
-Pulmonary Embolism: SOP 38 of 2021, Factor 9(18) and 19
-Pleural Plaque: SOP 105 of 2023 (accepted condition)
-Hypoxic Seizure: SOP 38 of 2022, Factor 9(7)
[40] Exhibit 2, Hearing Book, S5, page 354, Applicant’s Statement of Issues, paragraph 4.
[41] Exhibit 2, Hearing Book, S5, page 354, Applicant’s Statement of Issues, paragraph 2.
The Applicant outlined their hypothesis as follows:[42]
From Dr Allan’s opinion in his report at Folio 209-211, that Asbestos Disease is enough to cause extensive Pleural thickening and Pleural Plaques that would have made a significant material contribution to the development of Chronic Obstructive Airways Disease but not Emphysema. Pleural Plaques has been accepted as a war caused condition.
We content that the condition of Pulmonary Embolism and Hypoxic Seizure are contributing Factors… .
[42] Exhibit 2, Hearing Book, S5, page 354, Applicant’s Statement of Issues, paragraph 3.
In the Applicant’s Statement of Facts, Issues and Contentions it was contended that:[43]
[43] Exhibit 2, Hearing Book, S6, pages 357-358, Applicant’s Statement of Facts, Issues and Contentions, paragraphs 6-11 and 13.
6.It is the Applicant’s contention that the Veteran’s accepted conditions of Pleural Plaques contributed to, in a material degree to the late veteran’s demise.
7.The late veteran’s condition of Pleural Plaques has been accepted by the Respondent as service-related due to his operational service during the Vietnam War.
Dr Allen states in his report at T46 Folio 209211 Refers that Asbestos Disease is enough to cause extensive pleural thickening and Pleural Plaques that would have made a significant material contribution to the development of Chronic Obstructive Airways Disease (COAD) but not Emphysema. COAD and COPD are different conditions and as well the late veteran had been diagnosed with Asbestosis.
8.Dr Scott in his Report dated 5 February 2008 lists the deceased Asbestos-Related changes as a contributing Factor to his overall lung impairment T31 Folios 129-134 Refers. That being so, the impairment would have continued to affect the deceased’s respiratory capacity indefinitely because the disease is progressive, meaning incurable, thus impacting the Cause of Death that is noted as Respiratory Failure.
9.The Applicant has a diagnosis of Asbestosis that is at Folios 13, 43 and 46 that are located in the medical documents from Caboolture Hospital. We contend that this condition has also contributed to the late veteran’s demise.
10.We further contend that the veteran’s Pleural Plaques played a significant part in the veteran’s demise. Folios 84-85 of the Caboolture Hospital documents Refer.
11.We would also contend that the deceased veteran was exposed to cleaning agents during cleaning and diesel engine exhaust while serving on board ship. I have stated above under Issues that COPD will not be contested, however we feel that those 2 substances could have contributed to the condition of COPD. SOP concerning Chronic Obstructive Pulmonary Disease (Reasonable Hypothesis) No 17 of 2023 Factor 6(as) Refers.
…
13.The Applicant contends that the evidence, notably
° the Death Certificate at Folio T38 173
° Dr Scott’s evidence
° Dr Allen’s evidence (both Specialists evidence)
supports a finding that the ‘Kind of Death’ suffered by the veteran was more than just COPD but a combination of those recorded on the Death Certificate and a Factor in SOP 17 of 2023.
In addition to the SoPs referred to previously, the Applicant sought to rely on:[44]
(a)Pleural Plaques: SOP 105 of 222, Factor 9.1, 7.3 and 9(a)(b)
(b)Pulmonary Embolism: SOP 37 of 2021, Factor 9.21 and 9.22
(c)Hypoxic Seizure SOP 37 of 2022, Factor 9.7
(d)Fracture: SOP 94 of 2015, Factor 9.1
(e)Chronic Obstructive Pulmonary Disease: SOP 17 of 2023, Factor 9.6
All of the above SOPs have a Clause at Para 7 where it states among other things “includes Death from a Terminal event or condition that was contributed to by”. The conditions stated in the SOPs above show all the above have contributed to the late veteran’s demise.
[44] Exhibit 2, Hearing Book, S6, page 358, Applicant’s Statement of Facts, Issues and Contentions, paragraphs 16-17.
At the Hearing the Applicant’s advocate further submitted that:[45]
·The SoP for COPD was being contested but not the smoking factor.
·The death certificate omitted pleural plaques and asbestosis, which they say the Veteran had.
·SoP 59 of 2021, Factor 9(1) in relation to asbestosis should be considered.
·The medical records revealed further conditions that the Veteran suffered from that could be considered.
[45] Transcript, pages 3-8.
The Applicant’s advocate further contended that the Applicant should be entitled to the war widow’s pension when consideration is given to:[46]
[46] Transcript, pages 31-33.
·All of the SoPs referred to relate to a condition on the death certificate have a factor in there of a death clause that do not contribute to it in some way.
·Dr Scott attributed 90 per cent emphysema and 10 percent pleural plaques, so the principles from the Kattenberg case should be applied.
·The decision in Hill’s case[47] citing:[48]
21 For reasons which are discussed at greater length in Collins at [44]-[46], we consider that "death" appearing in ss 8 and 13 of the VE Act, and then in s 120, whether by itself or in the phrase "injury, disease or death" means the nature of the condition which causes the death, or put another way, the medical cause or causes of the death.
…
23 We note that ss 8 and 13 look to the "death" of a veteran, but do not use the term "kind of death". Similarly, s 120 refers to the relationship of a veteran’s death with the operational service of the veteran. It also does not use the term "kind of death". The term "kind of death" is introduced by s 120A(2) and (4) in the expressions "kind of injury", "kind of disease" and "kind of death" and the expression "particular kind of injury, disease or death" in s 196B(2). That expression refers to the circumstances in which a Statement of Principles may be determined and then applied to decide whether a hypothesis connecting an injury, disease or death is reasonable as assessed under s 120(1) and (3) as informed by s 120A(3).
…
26 It is also important to recognise that there may be more than one medical cause for a veteran’s incapacity or death. Repatriation Commission v Law [1981] HCA 57; (1980) 147 CLR 635 (Law) recognised that. In that case, the veteran had died as a result of carcinoma of the lung (nine months) with myocardial infarction (three years) as a contributory cause. …
… It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show "attributability" if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.
That passage, of course, relates to the issue of whether the death was "war-caused", but it was a question considered in relation to each of the medical causes of the death of the veteran.
[47] Transcript, pages 32-33.
[48] Hill v Repatriation Commission [2009] FCAFC 91.
Respondent’s Submissions
The Respondent sought to rely on the contentions set out in their Statement of Issues, Facts and Contentions.[49] To that extent the Respondent provided that there is no dispute that the Veteran was a veteran who has died, and that the Applicant and the Veteran were in a
de facto relationship, as such she is able to make a claim for war widow’s pension.[50]
[49] Exhibit 2, Hearing Book, S4, pages 336-352, Respondent’s Statement of Facts, Issues and Contentions.
[50] Exhibit 2, Hearing Book, S4, page 347, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 20-21.
The Respondent contended that the evidence, notably the Death Certificate dated
13 July 2021, along with the specialist evidence, supports a finding that the ‘kind of death’ suffered by the Veteran was COPD and/or emphysema.[51]
[51] Exhibit 2, Hearing Book, S4, page 344, Respondent’s Statement of Facts, Issues and Contentions, paragraph 12.
The Respondent contended that the Applicant’s claim must fail as:[52]
[52] Exhibit 2, Hearing Book, S4, pages 347-351, Respondent’s Statement of Facts, Issues and Contentions.
22.In terms of the 'kind of death' relevant to the determination of whether the late Veteran's death is 'war-caused', the Respondent contends that this must be determined on a balance of probabilities as to what the real or operative cause of death is. This requires a finding of fact as to the medical cause of death on the medical or other evidence available.
23.The Respondent submits that the weight of evidence supports a finding that the kind of death suffered by the late Veteran to be COPD, this reflected within the Death Certificate dated 13 July 2021.
24.Further to contention [23] above, the Respondent acknowledges that, further to the Death Certificate, the late Veteran's cause of death was reported as COPD by:
(a) Dr Tan, orthopaedic registrar in his report dated 15 June 2021;
(b)Dr Dakin, consultant in her Discharge Summary dated 16 June 2021; and
(c)Dr Zappala, consultant thoracic and sleep physician in his report of
6 May 2023.25.Moreover, in support of a finding that the late Veteran's cause of death was COPD include:
(a)the Acute Resuscitation Plan completed by Dr Shitta, emergency medicine consultant on 12 June 2021 recorded the late Veteran presenting with COPD three days prior to his death;
(b)Progress Notes completed at The Prince Charles Hospital dated
13 June 2021 recorded the late Veteran had '[c]linically very severe COPD’ and ‘end stage COPD’, and right neck of femur fracture was likely as a result of tonic seizure secondary to hyperventilation caused by COPD;(c)Progress Notes completed at The Prince Charles Hospital dated
15 June 2021 recorded the late Veteran suffered from right neck of femur fracture and type 1 respiratory failure against the background of ‘severe/end stage COPD’ and ‘[b]rittle COPD’;(d)Medication Action Plan completed at The Prince Charles Hospital documenting the late Veteran's past medical history of COPD; and
(e) Surgical Observation Chart completed at The Prince Charles Hospital recorded the late Veteran suffered from 'severe COPD'.
26.Further to contentions [24] and [25] above, the Respondent submits that the recent evidence of Dr Zappala, consultant thoracic and sleep physician is that COPD is the 'kind of death' suffered by the late Veteran and this condition being attributable to his lengthy history of smoking.
27.The Respondent acknowledges the Applicant's contentions around the 'kind of death' to be principally pleural plaques and extensive pleural thickening attributable to the late Veteran's claimed exposure to asbestosis during his time in operational service.
28.As to the Applicant's contentions around the 'kind of death', the Respondent repeats and relies upon the contentions outlined at [22] to [26] above and submit that there is no medical evidence supportive of a finding, on a balance of probabilities, that the late Veteran's real and operative medical cause death to be pleural plaques and extensive pleural thickening.
29.The Respondent acknowledges the Applicant reliance upon the evidence of Adjunct Professor Allen, thoracic and sleep disorders physician being supportive. The Respondent, however, contends that the evidence of Adjunct Professor Allen does not support a finding that the 'kind of death' of the late Veteran was due to pleural plaques, a condition which had been accepted by the Respondent as being service related. Rather, the Respondent respectfully submits that the evidence of Adjunct Professor Allen, consistent with the findings of Dr Zappala and the other treating specialists at The Prince Charles Hospital, is that the late Veteran's smoking related COPD being causative of his death.
30.Moreover, further to contention [29] above, the Respondent submits that the evidence of Dr Zappala is that pleural plaques did not medically cause the late Veteran's death and any claimed asbestos exposure having caused his death is insignificant compared to the late Veteran's lengthy history of smoking.
31.The extent to which there could be considered any divergence in the medical evidence between the views expressed by Adjunct Professor Allen and
Dr Zappala, the evidence of Dr Zappala ought to be preferred, particularly appreciating his opinion having been arrived at with the benefit of reviewing the late Veteran's medical and radiological reports and the summonsed medical records.32.As to the Applicant's secondary contentions around hypoxic seizures and pulmonary embolism being the 'kind of death', the Respondent repeats and relies upon the contentions outlined at [22] to [26] above. The Respondent submits that there is no medical evidence supportive of a finding, on a balance of probabilities, that the late Veteran's real and operative medical cause death to be hypoxic seizures or pulmonary embolism.
33.Further to contention [32] above, the Respondent further contends that the weight of medical evidence supports a finding that other causes listed within the Death Certificate dated 13 July 2021, including hypoxic seizures and pulmonary embolism are to be understood as antecedent causes and not the real and operative medical cause of death. Indeed, the evidence of
Dr Zappala is supportive of a finding of this kind.34.For reasons outlined at contentions [22] to [33] above, the Respondent submits that the evidence available fails to support a finding that the 'kind of death' suffered by the late Veteran is other than COPD.
35.Further to contention [34] above, on account of the 'kind of death' being COPD, the Respondent submits that the Applicant's claim cannot succeed as the late Veteran's claims for chronic bronchitis and emphysema had been determined to not be service related prior to his death. This owing to his cigarette smoking having been found to be unrelated to his operational service.
36.Moreover, the Respondent contends the Applicant's claim cannot otherwise succeed and this is not a matter of contention between the parties on the basis that the Applicant's most recent submissions outlined within the document entitled 'The Applicant's Statement of Issues' accepted the late Veteran's COPD condition to not be related to his service.
37.Notwithstanding contentions [35] and [36] above, appreciating the Applicant's claim and period of operational service in South Vietnam between 25 May 1966 and 11 June 1966, the Respondent contends that the applicable standard of proof is 'reasonable hypothesis' assessed by reference to the relevant SoP.
38.On account of the 'kind of death' being COPD, the Respondent submits that the relevant SoP is Instrument SoP 37 of 2014, as amended by Instrument SoP 128 of 2015. Paragraph 3 of the SoP 37 of 2014 provides an inclusive definition capturing COPD, chronic bronchitis and emphysema.
39.In considering the reasonableness of the Applicant's number of hypotheses raised, the Respondent submits that paragraph 6 of SoP 37 of 2014 identifies factors that must exist on the evidence available:
'6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic obstructive pulmonary disease or death from chronic obstructive pulmonary disease with the circumstances of a person’s relevant service is:
(a)smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease; or
(b)inhaling a respiratory tract irritant from the specified list:
(i)resulting in signs and symptoms of severe acute lower respiratory damage requiring medical attention within 48 hours after exposure; and
(ii) the persistence of respiratory symptoms and signs for at least one week after exposure, within the ten years before the clinical onset of chronic obstructive pulmonary disease; or
(c)inhaling smoke from the combustion of wood, charcoal, coal or other biomass or fossil fuel, in an enclosed space:
(i)for a cumulative period of at least 5 000 hours, before the clinical onset of chronic obstructive pulmonary disease; and
(ii)where that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation; or
…
(f)inhaling vapour, gas, dust or fumes of a substance from the specified list in an enclosed space:
(i) for a cumulative period of at least 10 000 hours, before the clinical onset of chronic obstructive pulmonary disease; and
(ii)where that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation; or
(g)inhaling vapour, gas, dust or fumes of a substance from the specified list, or smoke from fire, in an open environment:
(i) for a cumulative period of at least 20 000 hours, before the clinical onset of chronic obstructive pulmonary disease; and
(ii)where that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation; or
(ga) inhaling dust at a concentration of greater than five milligrams per cubic metre:
(i) for a cumulative period of at least 10 000 hours, before the clinical onset of chronic obstructive pulmonary disease; and
(ii)where that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation; or
….
40.As regards the mentions of ‘a respiratory tract irritant from the specified list’, ‘a substance from the specified list’ and ‘dust’ above, asbestos has not been included for the purposes of the SoP 37 of 2014.
41.Indeed, the SoP 37 of 2014 expressly excludes asbestosis and other fibrosing lung disease, with paragraph 3(b) of the SOP 37 of 2014 providing as follows:
'These definitions exclude irreversible airflow obstruction as a manifestation of advanced asthma, bronchiectasis, bronchiolitis obliterans, extrinsic allergic alveolitis, fibrosing interstitial lung disease, asbestosis and other fibrosing lung disease.' (Emphasis added)
42.Further to contention [41] above, the Respondent submits that those hypotheses raised by the Applicant around the late Veteran's exposure to asbestos resulting in pleural plaques and/or extensive pleural thickening have not been included as factors giving rise to a reasonable hypothesis within the SoP 37 of 2014. Moreover, in terms of the hypothesis around the late Veteran's asbestosis attributable to his former operational service, the Respondent contends that this is captured within the excise of paragraph 3(b) of the SOP 37 of 2014 and rendered inapplicable in light of the 'kind of death' being COPD.
…
53.In terms of the Applicant's hypotheses around pleural plaques, pulmonary embolism and hypoxic seizure, the Respondent repeats and relies on the contentions outlined at [22] to [34] above around the 'kind of death' being COPD and SoP 34 of 2014 is applicable. Notwithstanding this, in terms of the reasonableness of those hypotheses around pleural plaques and pulmonary embolism, the Respondent submits that the evidence does not support a finding that any of the factors within clause 6 of the SoP 45 of 2014 and clause 9 of the SoP 37 of 2021 have been met. As to the Applicant's hypothesis around hypoxic seizure, appreciating that there is not a SoP issued by the RMA nor currently under investigations by the RMA, the Respondent contends that, on the whole of the material, this hypothesis is not reasonable pursuant to section 120(3) of the VEA. This being so, the Respondent submits that the Applicant's claim must fail in accordance with the tests espoused in Repatriation Commission v Deledio.
54.Notwithstanding contentions [51] and [52] above, for the purposes of section 120(1) of the VEA, the Respondent otherwise submits that there is clear and cogent evidence supportive of a finding, beyond reasonable doubt, that there is no sufficient ground for making a determination that death from COPD is war-caused.
[Footnotes omitted]
At the Hearing the Respondent contended that:[53]
·There has not been a diagnosis of asbestosis.
·Both COPD, emphysema and hypertension have previously been found not to be service-related.
·The new COPD SoP still contains the factors that were raised in its written submissions, albeit by different numbering.
·Causation aside with reference to COPD and the issue around inhaling gas fumes, practically you are looking at 10,000 hours which would require over a year, which would not be possible given the Veteran’s service history.
·It is not in dispute that at the time of his death the Veteran was suffering from pleural plaques, however it was not a real or operative factor relevant to his passing.
CONSIDERATION
[53] Transcript, pages 9-11.
Preliminary Issues
As set out earlier, in accordance with the decision in Collins it is necessary to consider a number of preliminary issues.
It is not disputed that the Applicant, was the de facto partner of the Veteran for at least 40 years before his death and as such for the purposes of the Act, is the widow of the Veteran who rendered operational service while serving with the Royal Australian Navy in Vietnam.
It is also not disputed that the Veteran died on 15 June 2021 and the causes of death listed on his Death Certificate were (1) (a) Severe chronic obstructive pulmonary disease with type 1 respiratory failure (b) Hypoxic seizure (c) Right neck of femur fracture (d) Right apical segment pulmonary embolism 2. Hypertension.[54]
[54] Exhibit 1, T Documents, T38, page 173, Death Certificate of the Veteran.
The cause of death for the purposes of section 120 and 120A of the Act requires consideration pursuant to section 120A(4) of the ‘kind of death’ met by the veteran. The Full Federal Court in Collins at [47] found that the ‘kind of death’ for the purpose of sections 120A(2) and (4) of the Act refers to the medical cause or causes of death, it is not made by applying sections 120, 120A or any SoP, rather it is made independently of them.[55]
[55] Also see Hill v Repatriation Commission [2009] FCAFC 91 (Hill) at [25] and Repatriation Commission v Hancock [2003] FCA 711 at [11],
In Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD, Gordon J gave the following reasons for rejecting the kind of death found by the Tribunal in that case:[56]
[31] The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It ask ‘questions of medical causation’ about the cause of death and does so in a particular context – the VE Act and, in particular, Pt VII of the VE Act...
[32] The notion of ‘causing’ has been said to be one of common sense...
[33] The answer to the question of causation posed by s 120A(4)...requires identification and examination of the purpose for which the question is being asked. The purpose or reason for asking the question is not at large. The nature and scope of the purpose for asking the question is to be found in the VE Act...the purpose for which the question in s 120A(4) is being asked, is to be found in s 120A(3)....one identifies the nature and purpose of the causal question in s 120A(4) (the ‘kind of death met by the person’) by reference to the matters identified in s 120A(3) – a hypothesis connecting a veteran ’s death with circumstances of that veteran ’s service...
[35] What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
[36] The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that the death was war-caused and that cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit [,] the effects of which [had] impaired his concentration and contributed to the fatal collision’...
[56] Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD at [31]-[36]/625-626, principles of which the Full Federal Court in Collins and Hill agreed.
The cause of death listed on a death certificate is not necessarily conclusive of the cause of death. The Tribunal is not bound by the terminology used in the death certificate it must consider the medical evidence and reach an independent conclusion based on that evidence in the context of the specific inquiry required by the Act.[57]
[57] Willman and Repatriation Commission [2007] AATA 1480 at [23] and Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434 at [61].
In Collins, Mansfield and Stone JJ dealt with medical conditions which hasten the death of a veteran, but which do not otherwise place any real role in the pathological changes leading to the death of a veteran:[58]
82 Those provisions support the conclusion that the inquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of the death. It does not support the proposition on behalf of Mrs Collins that there is a legislative intention that any medical condition which hastens the time of death of a veteran by a measurable period, even a short one, where in medical terms another medical condition is clearly the medical condition which accounts for the pathological changes leading to death, is itself a medical cause of the death...
84 For those reasons, we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act. The medical cause or causes of death are to be determined by the relevant decision-maker on the evidence. That is what the Tribunal did. In our judgment, it committed no error of law in doing so.
[58] Collins v Repatriation Commission [2009] FCAFC 90 at [82]-[83].
It is the ‘kind of death’ met by the Veteran that is the main issue in contention in this matter. The Respondent contended that the ‘kind of death’ met by the Veteran is COPD. The Applicant contended that the ‘kind of death’ met by the Veteran was more than just COPD, it was a combination of the conditions listed on his death certificate as well as pleural plaques and asbestosis.
The expert evidence before the Tribunal in relation to the death of the Veteran was provided by Dr Allen and Dr Zappala. That evidence is at this juncture relevant to the extent of determining what kind of death the Veteran met, not to the cause of any identified conditions or whether they are related to his service.
In reviewing the evidence of Adjunct Professor Allen in this regard, the Tribunal notes that he did not provide an opinion with regards to the cause or ‘kind of death’ met by the Veteran. Rather, the report of Adjunct Professor Allen provides opinion in relation to the impact of the Veteran’s pleural plaques on his development of COAD and emphysema.[59]
[59] Exhibit 1, T Documents, T46, page 209, Report of Adjunct Professor Allen.
The Applicant did not seek a further report from Adjunct Professor Allen in light of the report provided by Dr Zappala, nor did she call him to give evidence at the Hearing. As such, the Tribunal does not have the benefit of knowing what Adjunct Professor Allen’s view is in relation to the cause or kind of death met by the Veteran. It is also relevant to note that Adjunct Professor Allen was not provided with the summons material or coroner’s reports.
On the other hand, Dr Zappala provided that in his opinion the kind of death met by the Veteran was COPD. As set out above, he was unequivocal in both his report and oral evidence at the Hearing. Dr Zappala’s opinion was consistent with that provided on the death certificate and the coroner’s cause of death certificate.
Dr Zappala helpfully clarified that the terms COPD and COAD are used interchangeably, and that COPD is sometimes used as an umbrella term that encompasses the chronic narrowing of the airways or chronic obstruction of the airways plus emphysema, as is the case in relation to the Veteran. Dr Zappala outlined (as provided above and not outlined here again in full) that the progression for patients that have an airways disease as well as emphysema is that they lose respiratory function and eventually reach the point of having respiratory failure.
Dr Zappala explained that the cause of the Veteran’s death was COPD which caused respiratory failure. He explained that the reference to type 1 respiratory failure was referring to the physiologic state where oxygen levels are too low which in this case meant a level of severity had been reached where ventilation and gas exchange were not occurring sufficiently for the Veteran to keep his oxygen levels in the normal range.
Dr Zappala further explained that in his opinion the hypoxic seizure, right neck of femur fracture and right apical segment pulmonary embolism were a result of the Veteran’s extremely parlous respiratory situation and frailty that was evident when he presented to hospital. Dr Zappala opined that as such those conditions while they would have had an effect on the Veteran’s death were not the cause of his death. This opinion is consistent with the progress notes completed at The Prince Charles Hospital on 13 June 2021 (as outlined in the Respondent’s contentions set out above).
Dr Zappala was unequivocal in both his report and evidence at the Hearing that pleural plaques do not cause respiratory failure or any significant degree of lung function impairment and that there was no evidence of the Veteran suffering from asbestosis.
In the Tribunal’s view the Applicant did not provide any evidence that displaces that provided by Dr Zappala. The Tribunal found Dr Zappala to be an impressive witness. He answered the questions asked of him directly and in a way that demonstrated his experience and expertise.
The Tribunal considers that the evidence before it clearly supports that on the balance of probabilities,[60] the ‘kind of death’ suffered by the Veteran was COPD (which includes emphysema).
[60] Repatriation Commission v Hancock [2003] FCA 711 at [11].
Having considered the preliminary issues, the issue before the Tribunal is whether the Veteran’s death was ‘war caused’, which is considered in accordance with the principles set out in Deledio.
Deledio Principles – Step 1
The first step of the Deledio Principles looks to ensure that section 120(3) of the Act is properly applied. At this stage the Tribunal does not engage in a fact-finding exercise and is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon.[61] Whether that material points to or supports a hypothesis can be determined by inference or assumption.[62]
[61] Forrester v Repatriation Commission [2013] FCA 898 at [14].
[62] Forrester v Repatriation Commission [2013] FCA 898 at [30].
The exact hypothesis being raised by the Applicant in relation to COPD as the ‘kind of death’ suffered by the Veteran is unclear. It appears that the Applicant is contending that the Veteran’s asbestos exposure, which lead to his plural plaques, which is accepted to relate to his operational service, contributed to the development of COPD.
The Tribunal notes that the evidence of Dr Scott, Adjunct Professor Allen and Dr Zappala reference a possibility of asbestos exposure leading to the development of COPD. Further, the hospital summons material make reference to asbestos exposure.
Accordingly, the Tribunal finds that the hypothesis raised has some support in the material, which points to and is not merely left open. As such, step 1 of the Deledio Principles is met.
Deledio Principles – Step 2
It is not disputed that the SoP determined under section 196B of the Act that relates to COPD is Statement of Principles concerning Chronic Obstructive Pulmonary Disease No.17 of 2023 (Cth).[63]
[63] This Statement of Principles replaced the Statement of Principles concerning Chronic Obstructive Pulmonary Disease No. 37 of 2014.
The Tribunal notes that as it has found that the kind of death that the veteran suffered was COPD, it is neither necessary or appropriate to apply the other SoP’s raised by the Applicant.
As such the Tribunal is satisfied that step 2 of the Deledio Principles is met.
Deledio Principles – Step 3
The third step of the Deledio Principles requires that the Tribunal must form an opinion as to whether the hypothesis raised is a reasonable one. To do this the Tribunal is required to determine if the hypothesis fits or is consistent with the template found in the COPD SoP.
In considering the issue of reasonableness, assistance is provided by the following observations of Mortimer J in Forrester v Repatriation Commission [2013] FCA 898 at [32]:
The reasonableness of a hypothesis is in the context of a determination under
s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…Although it is not necessary for every element of a hypothesis to be supported, or pointed to in the material by the Tribunal, the essential elements of the hypothesis must be addressed.[64] It is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met, the material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.[65]
[64] Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [59]/364.
[65] Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [63]/365.
It is not disputed that the Veteran had suffered from long standing COPD (inclusive of emphysema). The Respondent’s decision in 2008 in effect found that the Veteran’s COPD was not service related.
The Statement of Principles concerning Chronic Obstructive Pulmonary Disease No.17 of 2023 (Cth) (COPD SoP) relates to COPD and death from COPD. It sets out at clause 7 the meaning of COPD as follows:
Meaning of chronic obstructive pulmonary disease
(1)For the purposes of this Statement of Principles, chronic obstructive pulmonary disease:
(a)means a chronic progressive inflammatory pathology occurring with different proportions of involvement of the airways, lung parenchyma and vasculature; and
(b)includes:
(i)chronic bronchitis;
(ii)emphysema; and
(iii)persistent airflow limitation; and
(c)excludes:
(i)asbestosis;
(ii)asthma;
(iii)bronchiectasis;
(iv)bronchiolitis obliterans;
(v)fibrosing interstitial lung disease and other fibrosing lung disease;
(vi)hypersensitivity pneumonitis (extrinsic allergic alveolitis); and
(vii)surgical, traumatic or localised emphysema.
Clause 7 of the COPD SoP further sets out that:
(5)For the purposes of this Statement of Principles, chronic obstructive pulmonary disease, in relation to a person, includes death from a terminal event or condition that was contributed to by the person's chronic obstructive pulmonary disease.
The COPD SoP provides that at least one of the factors set out in clause 9 must exist before it can be said that a reasonable hypothesis has been raised connecting death from COPD with the circumstances of a person’s relevant service.[66]
[66] Clause 9 of the COPD SoP.
Relevant to this application, clause 9 of the COPD SoP provides:
(1)having smoked tobacco products:
(a)in an amount of at least 5 pack-years before the clinical onset of chronic obstructive pulmonary disease; and
(b)if smoking has ceased before the clinical onset of chronic obstructive pulmonary disease, then that onset occurred within 20 years of cessation;
Note: one pack-year is defined in the Schedule 1 – Dictionary.
(2)being exposed to second-hand smoke:
(a)for at least 10,000 hours before the clinical onset of chronic obstructive pulmonary disease; and
(b)if exposure to second-hand smoke has ceased before the clinical onset of chronic obstructive pulmonary disease, then that onset occurred within 20 years of cessation;
Note: being exposed to second-hand smoke is defined in the Schedule 1 – Dictionary.
…
(5)inhaling a respiratory tract irritant from the specified list of respiratory tract irritants resulting in:
(a)signs and symptoms of severe acute lower respiratory damage requiring medical attention within 48 hours after exposure; and
(b)the persistence of respiratory symptoms and signs for at least one week after exposure, within the 10 years before the clinical onset of chronic obstructive pulmonary disease;
Note: specified list of respiratory tract irritants is defined in the Schedule 1 – Dictionary.
(6)inhaling vapour, gas, or fumes of a substance from the specified list of substances in an enclosed space:
(a)for a cumulative period of at least 10,000 hours before the clinical onset of chronic obstructive pulmonary disease; and
(b)if that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation;
Note: specified list of substances is defined in the Schedule 1 – Dictionary.
(7)inhaling vapour, gas, or fumes of a substance from the specified list of substances, in an open environment:
(a)for a cumulative period of at least 20 000 hours before the clinical onset of chronic obstructive pulmonary disease; and
(b)if that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation;
Note: specified list of substances is defined in the Schedule 1 – Dictionary.
(8)inhaling organic or inorganic dust at a concentration of greater than 5 milligrams per cubic metre:
(a)for a cumulative period of at least 10,000 hours before the clinical onset of chronic obstructive pulmonary disease; and
(b)if that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation;
Note: dust is defined in the Schedule 1 – Dictionary.
…
As set out above, the Respondent contended that none of the factors set out in the COPD SoP exist. The Respondent at the Hearing contended that its contentions in this regard continue through to the new COPD SoP of which is overall consistent with the previous SoP despite having different numbering.
The Applicant conceded that the smoking related factors set out in clause 9 of the COPD SoP do not apply.[67] The Applicant sought to rely on factor (6) of clause 9 of the COPD SoP which refers to the inhaling of vapour, gas or fumes of a substance from the specified list of substances in an enclosed space:
for a cumulative period of at least 10,000 hours before the clinical onset of chronic obstructive pulmonary disease; and
if that exposure has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation.
[67] Exhibit 2, Hearing Book, S6, page 356, Applicant’s Statement of Facts, Issues and Contentions, paragraph 2. The Tribunal notes evidence set out by the Respondent at Exhibit 2, Hearing Book, S4, pages 336-352, Respondent’s Statement of Facts, Issues and Contentions.
The Applicant did not however advance any evidence or detailed support of that contention. As such there is insufficient evidence before the Tribunal with regards to the period of exposure or to which vapour, gas or fumes the Applicant says the Veteran was exposed to.
The Tribunal notes that the Applicant contended that the Veteran’s asbestos exposure contributed to the development of his COPD. Clause 7 of the COPD SoP specifically excludes asbestosis and the ‘specified list of substances’ set out in Schedule 1 to the COPD SoP does not refer to asbestos.
The COPD SoP does not make reference to pleural plaques being a factor giving rise to a reasonable hypothesis. The Tribunal notes that the Applicant made reference to the decision in Kattenberg v Repatriation Commission [2002] FCA 412. The Tribunal considers that the decision in that case does not assist the Applicant as the principles it establishes do not provide for an exemption that a SoP factor does not have to be met before a reasonable hypothesis can be raised connecting a disease or death with the circumstances of a person’s relevant service.
Consequently, in the absence of a factor set out in clause 9 of the COPD SoP existing, it cannot be said that a reasonable hypothesis can be raised connecting the Veteran’s death from COPD with his relevant service.
Further as step 3 of the Deledio Principles has not been met, it follows by logic neither is step 4.
DECISION
Based on the evidence before it, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the Veteran’s death from COPD was war-caused.
Consequently, the reviewable decision is affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
............................[SGD]..............................
Associate
Dated: 29 November 2023
Date of Hearing: 18 September 2023 Representative for the Applicant:
Mr Ken Cullen
Gaythorne RSLSolicitors for the Respondent: Ms Rachel Blake
HWL Ebsworth Lawyers
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