Collins v Repatriation Commission

Case [2009] FCAFC 90

FEDERAL COURT OF AUSTRALIA

Collins v Repatriation Commission [2009] FCAFC 90

ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension – decision of Administrative Appeals Tribunal that veteran’s death was not “war-caused” – appeal dismissed by primary judge – Tribunal found that the cause of death was pulmonary embolism – widow accepted that pulmonary embolism was not war-caused – Tribunal found that ischaemic heart disease was not a cause of death, but that the death would not have occurred as and when it did but for ischaemic heart disease – whether if a medical condition contributes to the death of a veteran only by affecting its timing, it is an error of law on the part of the Tribunal to conclude that for the purposes of the Veterans’ Entitlements Act 1986 (Cth), the cause of death does not include that medical condition

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 8, 120, 120A, 196B

T Honoré, “Necessary and Sufficient Conditions in Tort Law” in DG Owen (ed) Philosophical Foundation of Tort Law (Oxford University Press, 2004)
EJ Weinrib, “A Step Forward in Factual Causation” (1975) 38 Modern Law Review 518
Workers Compensation, The Laws of Australia, (Law Book Co)
Corcoran, “Theories of Statutory Interpretation” in Corcoran and Bottomley (eds) Interpreting Statutes (The Federation Press, 2005)

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 discussed
Barnett v Chelseaand Kensington Hospital Management Committee [1969] 1 QB 428 discussed
Benjamin v Repatriation Commission (2001) 70 ALD 622 discussed
Bonnington Castings Ltd v Wardlaw [1956] AC 613 cited
Brown v Repatriation Commission [2006] FCA 914 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Commonwealth v Butler (1958) 102 CLR 465 discussed
Doolette v Repatriation Commission (1990) 21 ALD 489 discussed
Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 16 FCR 410 cited
Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 cited
Fogarty v Repatriation Commission [2003] FCAFC 136 cited
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1 cited
Henville v Walker (2001) 206 CLR 459 cited
Jobling v Associated Dairies Ltd [1982] AC 794 cited
Kerry v England [1898] AC 742 discussed
Langley v Repatriation Commission (1993) 43 FCR 194 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Repatriation Commission v Codd (2007) 95 ALD 619 discussed
Repatriation Commission v Cooke (1998) 90 FCR 307 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Hancock (2003) 37 AAR 383 applied
Repatriation Commission v Law (1980) 147 CLR 635 discussed
Repatriation Commission v Law (1980) 31 ALR 140 discussed
Repatriation Commission v Towns (2003) 38 AAR 77 cited
Roads and Traffic Authority v Royal (2008) 245 ALR 653 cited
Smith v Leech Brain & Co Ltd [1962] 2 QB…

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Collins v Repatriation Commission [2009] FCAFC 90
Case
[2009] FCAFC 90
Decision Date

CaseChat Overview and Summary

Collins v Repatriation Commission involved the appellant, Mrs Collins, appealing the decision of the Tribunal regarding the eligibility of her late husband, a veteran, for a war-caused death pension under the Veterans' Entitlements Act 1986 (Cth). The primary issue was whether the Tribunal correctly determined the "kind of death" and whether there was a reasonable hypothesis that the veteran's ischaemic heart disease was war-caused. Mrs Collins argued that ischaemic heart disease, resulting from a war-caused alcohol habit and hypertension, contributed to the veteran's death, which was due to pulmonary embolism.

The court examined the legislative framework, particularly sections 8, 120, 120A, and 196B of the VE Act, which establish criteria for determining war-caused deaths and the role of Statements of Principles. The court clarified that the term "death" in the relevant provisions refers to the medical cause or causes of death, not any condition that may hasten death. The court noted that the Tribunal had correctly identified the "kind of death" as death by pulmonary embolism, finding that ischaemic heart disease, while present, was not the cause of death.

The court concluded that the Tribunal's decision was consistent with the statutory requirements and correctly applied the provisions of the VE Act. There was no authority directly addressing the precise issue, but the court found the Tribunal's reasoning sound based on the evidence presented. The appeal was dismissed, and Mrs Collins was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay to the respondent costs of the appeal.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is also appropriate, in that context, to consider the circumstances in which a Statement of Principles is to be determined. It is determined, pursuant to s 196B(2) if the Repatriation Medical Authority considers that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be (inter alia) related to operational service rendered by veterans. The term “sound medical-scientific evidence” has the meaning given by s 5AB(2). That is:(2)Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:(a) the information:(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and(b)in the case of information about how that kind of injury, disease or death may be caused – meets the applicable criteria for assessing causation currently applied in the field of epidemiology. As can be seen, information about a particular injury, disease or death taken to be sound medical-scientific evidence involves two elements: the diagnostic element in (a) and the causative element in (b). That is, paraphrasing, a particular kind of death is one which, in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition, and then requires also a certain type of information about causation. 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. Moreover, having regard to the very detailed and (to claimants) helpful provisions facilitating proof of an injury, disease or death being war-caused, it would be surprising if Parliament intended to incorporate into the VE Act such a proposition without expressly saying so. Indeed, when the VE Act was amended by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) to introduce s 120A and the Repatriation Medical Authority with its powers and functions in Part XIA of the VE Act, nothing was said to indicate such a purpose although the Explanatory Memorandum to the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth), pp i-ii, explained clearly how it was intended to facilitate proof of the connection between an injury, disease or death and war service.

Decision

Reasons for decision

It is also common ground on this appeal that those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker: Benjamin at 634-5 per Moore, Emmett and Allsop JJ; Cooke at 310 per French J (as he then was), Drummond and Carr JJ and Hancock at [9] per Selway J. There is no issue about the first and second of those inquiries. The third is really the focus of the issue at first instance and on appeal. The relevant decision-maker is the Tribunal.THE TRIBUNAL’S DECISION The Tribunal identified that it was necessary first to determine the “kind of death” suffered by the veteran, and then to determine whether there is a connection between that kind of death and his war service (applying s 120; and if appropriate because of the existence of a relevant Statement of Principles, s 120A). Mrs Collins claimed that the veteran died, at least partly, as a result of ischaemic heart disease, and that – in terms of s 120(1) and (3) – the Tribunal could not be satisfied beyond reasonable doubt that there is no sufficient ground for determining that his ischaemic heart disease (and so his death) was war-caused because, on the material, it could not hold the opinion that there was no reasonable hypothesis connecting the death with the veteran’s operational service. That material, she asserted, revealed that the veteran developed a war-caused alcohol habit that led to hypertension that led to ischaemic heart disease. There is a Statement of Principles (Statement of Principles No 35 of 2003 as amended by Statement of Principles No 3 of 2004) concerning hypertension. There is also a Statement of Principles (Statement of Principles No 53 of 2003 as amended by Statement of Principles No 9 of 2004) concerning ischaemic heart disease. By applying s 120(3) and s 120A(3), Mrs Collins argued that there was a reasonable hypothesis that the veteran’s ischaemic heart disease was war-caused, because then in terms of s 120(1) the Tribunal could not be satisfied beyond reasonable doubt that there is no sufficient ground for making such a determination. There was clear medical evidence that the veteran had died from pulmonary embolism. As noted, Mrs Collins did not claim that death from pulmonary embolism was war-caused. She focused her claim on the death being, in part, from ischaemic heart disease. After reviewing the medical evidence, the Tribunal found on the balance of probabilities that the “kind of death” of the veteran was “death by pulmonary embolism”. It accepted, at the time of his death, the veteran suffered from ischaemic heart disease, as well as pulmonary embolism and motor axonal neuropathy. Its finding about the cause of death is in the following passage:[the medical evidence was that] ischaemic heart disease hastened, but was not the cause of, the veteran’s death. What caused his death was the pulmonary embolism, which occurred as a consequence of the motor axonal neuropathy which the veteran had suffered for many years. While the veteran may have died when he did – rather than some hours or days later – because he had ischaemic heart disease, it is not correct to say that the ischaemic heart disease was the cause, or even one of the causes, of his death. The cause of death was the pulmonary embolism. In the language of ss 120 and 120A of the [VE] Act, the “kind of death” met by the veteran was “death by pulmonary embolism”.[original emphasis]

Ratio Decidendi

Legal Principle Established

It was acknowledged that there was no authority which directly considered the precise point.CONSIDERATION As the primary judge observed, there is some difficulty arising from the language of the relevant provisions. Sections 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 ss 120A(2) and (4) and 196B(2) in the expression “particular kind of injury, disease or death”. That expression refers to the circumstances in which a Statement of Principles may be determined and then applied to decide whether an hypothesis connecting an injury or disease or death is reasonable as assessed under ss 120(1) and (3) as informed by s 120A(3). The proper construction of those different terms was not a matter of debate on the appeal. It was common ground that, where the word “death” appears in ss 8 and 13 it means the medical cause of the death. In any claim under the VE Act, there are generally three fundamental and logically separate though often inter-related questions. The first is to determine the nature of the injury, disease or death of the veteran. That is anterior to, and distinct from, the second question, namely the relationship of the injury, disease or death to the service of the veteran. The third question is to determine the extent of the entitlement to benefits under the VE Act in respect of the war-caused injury, disease or death. Generally, but not always, the first question is not contentious. The claimant asserts the nature of the injury, disease or death, and the focus is upon whether it is war-caused. If the nature of the claimed injury, disease or death is contentious, the decision-maker first has to decide that issue. Sometimes there is a dispute as to whether the claimed injury or disease in fact exists. That may be because there is an issue as to whether the claimed symptoms are genuine. Sometimes there is a dispute as to whether the medical symptoms and signs show the existence of the claimed injury or disease. There may be other reasons why the first question is contentious. It is not necessary to speculate about that. In our view, the word “death” used in s 8, and in the phrase “injury, disease or death” in s 13 has the same meaning, that is the nature of the condition which causes the death. To be more precise, it is the medical cause or causes of the death. That flows from the context of the relevant provisions and the structure of s 13(1). It specifies the criteria for eligibility for a pension under the VE Act. It treats death on the one hand and injury or disease on the other separately, apparently because the pension is payable in one instance to the dependants of the veteran, and in the other instance to the veteran. (In the case of the death of a veteran, in addition, ss 13(2), (3) and (4) extend the entitlement of that veteran’s dependants beyond a “war-caused” death, but those provisions deal with special cases). The eligibility criterion in each instance is the same: that the death or injury or disease be war-caused. To proceed to determine if an injury or a disease is war caused, it is first necessary to identify the nature of the injury or disease. Its nature is a question of fact, based upon the medical diagnosis and other evidence. As noted, generally that is not contentious. Similarly, to proceed to determine if a death is war-caused, it is first necessary to identify the cause or causes of the death. That too is a question of fact, based upon the medical diagnosis and other evidence. Without identifying the cause or causes of death, it is not possible to determine if the death is war-caused. That is the second general issue referred to above. It is the foundation for applying s 120, and where appropriate s 120A, to the question of whether it is war-caused. Section 120(1) directs how the decision-making process on the issue of causation is to be made in relation to a claim for a pension in respect of incapacity from injury or disease of a veteran, or of the death of a veteran. It thereby ties to, and follows from, the first issue, namely the nature of any relevant injury, disease or death.