Margaret Julian and Repatriation Commission
[2012] AATA 426
•6 July 2012
[2012] AATA 426
| Division | VETERANS' APPEALS DIVISION |
| File Number(s) | 2011/4148 |
| Re | Margaret Julian |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | Mr S. Webb, Member |
| Date | 6 July 2012 |
| Place | Canberra |
The decision under review is affirmed.
............................[sgd].....................................
Mr S. Webb, Member
VETERANS’ ENTITLEMENTS – widow pension – death – disease from which the veteran died – medical causes of renal failure – atherosclerotic renovascular disease – hypertension a risk factor that may have contributed – not established that hypertension is a medical cause of the death – decision affirmed
Administrative Appeals Tribunal Act 1975 s 33
Judiciary Act 1903 s 55ZG
Veterans’ Entitlements Act 1986 ss 5D, 8, 68, 70, 119, 120, 120A, 120B, 196B
Australian Investments and Securities Commission v Hellicar & Ors [2012] HCA 17
Collins v Repatriation Commission [2009] FCAFC 90
Director-General of Social Security v Chaney (1980) 3 ALD 161
FVR (WA) Pty Ltd v Federal Commissioner of Taxation [2012] FCAFC 90
Hill v Repatriation Commission [2009] FCAFC 91
Re Julian and Repatriation Commission [2010] AATA 1026.
Re Magill and Repatriation Commission [2007] AATA 9
Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333
Repatriation Commission v Hayes [1982] FCA 107
Repatriation Commission v Law (1980) 47 FLR 57
SCI Operations Pty Ltd & Anor v Commonwealth of Australia (1996) 69 FCR 346
Scott v Handley [1999] FCA 404
Re Shaw and Repatriation Commission [2005] AATA 354
Woodward v Repatriation Commission (2003) 131 FCR 473
Wodrow v Commonwealth of Australia [2003] FCA 403
Statement of Principles concerning Hypertension, Instrument No 35 of 2003 (as amended by Instrument No 3 of 2004 and by Statement of Principles concerning Hypertension No 11 of 2008)
Statement of Principles concerning Hypertension, Instrument No 36 of 2003 (as amended by Instrument No 4 of 2004 and by Statement of Principles concerning Hypertension No 12 of 2008)
Death From An Accepted Disability, Bruce Topperwien, Veterans’ Review Discussion Paper No 7, April 2000.
REASONS FOR DECISION
Mr S. Webb, Member
6 July 2012
Mr Harry Julian died in June 2008. His widow, Margaret, claimed a pension on the basis that her husband suffered from hypertension, a disability accepted by the Repatriation Commission, which contributed to his death. The Commission rejected her claim. The Veterans’ Review Board affirmed the decision and Mrs Julian applied for review.
The issue to be decided is whether Mrs Julian is entitled to a pension by way of compensation under the Veterans’ Entitlements Act 1986. For that purpose it is necessary to determine whether or not Mr Julian’s death was war-caused or defence-caused. That will be so, if the disease from which he died is a disease that has been determined to be war-caused[1] or defence-caused[2]. The sole issue pressed in these proceedings is whether hypertension is a disease from which Mr Julian died.
[1] Section 8(1)(f), Veterans’ Entitlements Act 1986.
[2] Section 70(5)(e).
Background
The following uncontroversial matters are established, on the balance of probabilities. Mr Julian served in the Royal Australian Navy with operational service (5 to 6 April 1968) and defence service (16 August 1976 to 31 December 1984) under the Act.
Under s 11, Mrs Julian is a dependant of the deceased veteran.
On 12 September 1988, essential hypertension was accepted as a service-related disability. I note in passing that this disease was accepted on the basis of stress during eligible service, prior to the commencement of the Statement of Principles regime that commenced on 1 June 1994 by operation of s120A, s120B and s 196B. It is not clear on the present evidence whether essential hypertension was accepted as a war-caused disease or as a defence-caused disease, although when the periods of operational and eligible defence service are considered, the latter is most probable. This conclusion accords with the Commission’s submission on this point, which was not seriously challenged. Thus, it appears that the acceptance of Mr Julian’s hypertension as ‘service-caused’ is, in fact, an acceptance that it was ‘defence-caused’. Nonetheless, as little turns on this distinction and to avoid uncertainty, I will take the phrase ‘service-caused’ to mean ‘war-caused’ or ‘defence-caused’.
On 21 November 2007, Mr Julian made a service disability claim in respect of renal failure, which was diagnosed as atherosclerotic renovascular disease. The claim was rejected and progressed to the Tribunal.
On 13 June 2008, Mr Julian died. The death certificate records ‘renal failure’ and ‘glomerulonephritis’ as the causes of death[3]. It is agreed, and may be accepted, that Mr Julian did not suffer from glomerulonephritis.
[3] T7 folio 53.
On 28 July 2008, Mrs Julian claimed a widow pension on the basis that the death of her husband was service-related. Her claim was rejected and also progressed to the Tribunal.
The Tribunal heard the applications relating to renal failure and widow pension concurrently, and decided to affirm both decisions as hypertension was said to be “the essential connection between Mr Julian’s eligible defence service and RAA [renal atherosclerotic arterial disease] which caused his death”, but the evidence before the Tribunal did not support “a conclusion that his defence service materially contributed to or aggravated his ‘hypertension’” and “Mr Julian did not suffer from hypertension during his defence service”[4]. I note that the current Statements of Principles concerning Hypertension (Statement of Principles 35 and 36 of 2003) set out the factors that must be established connecting hypertension and the person’s service; but these do not include stress during service.
[4] Re Julian and Repatriation Commission [2010] AATA 1026 at [38], [54] and [59].
On 3 February 2011, Mrs Julian lodged a further claim for pension, asserting that her husband’s death was from hypertension, an accepted service-related disability[5]. Her claim was rejected[6] and this decision was affirmed by the Veterans’ Review Board[7]. This decision is the subject of these proceedings.
[5] T9.
[6] T10.
[7] T2.
Is hypertension a disease from which Mr Julian died?
Mrs Julian’s case, it appears to me, arises on three legs. Firstly, she says that, in the particular circumstances, it is not necessary to prove again that her husband’s hypertension was service-caused, as this has already been determined and accepted. Secondly, she asserts that hypertension is a medical condition that led to her husband’s death. And thirdly, she submits that her husband’s death must be taken to be service-caused because hypertension contributed to his death.
Thus, Mrs Julian submits that the decision under review should be set aside and her husband’s death should be found to be service-related, and she should be granted a pension.
While some of these submissions have merit, the conclusion sought does not follow.
Was Mr Julian’s hypertension service-caused?
In Mrs Julian’s submission, it is not necessary to revisit the causal nexus between Mr Julian’s hypertension and his eligible service as this was accepted in 1988.
This is correct.
The Act was amended in 1996 to simplify death claims relating to accepted service-related disabilities; s 8(1)(f) concerning war-caused death and s 70(5)(e) concerning defence-caused death were introduced for this purpose. It is convenient to consider the terms of s 70(5)(e) concerning defence-caused death, noting that s 8(1)(f) is in similar terms, albeit relating to war-caused death –
70(5) For the purposes of this Act, the death of a member of the Forces… shall be taken to have been defence-caused,… if:
…
(e) the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused in jury or defence-caused disease, as the case may be;
Note: The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence-caused, the death is taken to have been defence-caused. Accordingly, the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
As can be seen, the effect of the section is to remove the requirement to determine afresh whether an injury or a disease from which the member (or veteran under s 8(1)(f)) died is defence-caused (or war-caused) when this has previously been positively determined.
Was hypertension a medical cause of Mr Julian’s death?
Mrs Julian asserts that hypertension is a disease from which her husband died. In her submission, it is not necessary, and it would be wrong, to determine the disease from which her husband died only in relation to the terminal event – the medical cause of the pathological change that resulted in death must be ascertained. This enquiry is not confined simply to the direct, proximate or ultimate cause of the death; a contributory factor is sufficient.
She asserts that the role of hypertension in her husband’s death is established by the evidence of Dr George[8], Dr Lanteri[9], Dr Zwartska[10], Dr Bashir[11] and an extract from the Merck Manual, 18th edition[12]. The disease process that led to the death, so the argument goes, is that the death was from renal failure; the renal failure was caused by atherosclerotic renovascular disease; and the atherosclerotic renovascular disease was contributed to by a number of factors, including hypertension.
[8] Exhibit A1, T13 folios 87 to 89 and ST4.
[9] Exhibit R1.
[10] T8 folio 54.
[11] ST 5.
[12] T13 folio 90.
Under the Act, there are essentially three distinct matters that must be addressed when determining a pension claim[13]. The first concerns the nature of the injury, disease or death of the veteran or member, and the particular service he or she has given. It should be noted that ‘disease’ is given meaning at s 5D. The second concerns the relationship of the injury, disease or death to the particular service of the veteran or member; and the third concerns the extent of the veteran’s entitlement to benefits in respect of the war-caused or defence-caused injury, disease or death.
[13] Collins v Repatriation Commission [2009] FCAFC 90 at [42]
Mrs Julian’s submission goes to the first of these matters; the second has already been dealt with. Nevertheless, in order to properly construe the legislative provisions presently in issue, it is necessary to understand the legislative context and purpose. Importantly, the word ‘death’ in ss 8, 13 and 70 refers to the nature of the injury or disease which causes the particular death, being the medical cause or causes of the death[14]. It is necessary for this to be determined in order to ascertain the correct procedure in relation to the second matter, concerning service causation and the applicability of ss 8, 9, 70, 120, 120A or 120B[15] when determining whether the ‘death’ is war-caused or defence-caused, and whether there is a Statement of Principles relevant to the particular ‘death’ or ‘kind of death’.
[14] Ibid at [44]-[45]
[15] Hill v Repatriation Commission [2009] FCAFC 91 at [60].
The standards of proof that apply when determining issues of causation of a death are set out in s 120. As can be seen, s 120A and s 120B require the assessment of causation, applying the particular standard of proof, in reference to any applicable Statements of Principles determined by the Repatriation Medical Authority under s 196B(2) in respect of the particular kinds of injury, disease or death. The conception of ‘the kind of death’ in ss 120A, 120B and 196B refers to the medical cause or causes of the death and it “is not intended to introduce any refined or different concept of causation, but simply to describe the circumstances in which a Statement of Principles must be determined and, if applicable, applied”[16].
[16] Collins v Repatriation Commission [2009] FCAFC 90 at [46]-[47].
Thus, it is necessary to determine ‘the disease from which the member (or veteran) died’ in order to ascertain the correct decision-making procedure under s 120: if the disease from which the member (or veteran) died is one that has already been determined as defence-caused (or war-caused), as in this case, that is the end of the enquiry in respect of service-causation, leaving only the extent of entitlement to be determined. If it is not, then the issue of war-causation or defence-causation must be determined by the processes set out in ss 120 and 120A or 120B, as applicable.
In this context, therefore, when determining ‘the disease from which the member (or veteran) died’ for the purposes of s 70(5)(e) (or s 8(1)(f) in respect of war-causation), it is necessary to determine the medical cause or causes of the death – the medical condition or conditions that account for the pathological changes leading to death. This is synonymous with determining the nature of the ‘death’ or the ‘kind of death’. There may be more than one condition or medical cause of the particular death. These are matters of fact to be determined on the evidence.
The evidence of Dr George, Dr Lanteri, Dr Zwartska, Dr Bashir and the extract of the Merck Manual on which Mrs Julian relies do not establish that hypertension is a disease from which Mr Julian died. While hypertension may have been a factor in the development of atherosclerotic renovascular disease, it was atherosclerotic renovascular disease that accounted for the pathological changes which led to Mr Julian’s death.
Dr George reported that it is likely that Mr Julian suffered from atherosclerotic renovascular disease, hyperlipidaemia and elevated blood pressure from an early age, noting that “Hyperlipidaemia and long standing hypertension are well accepted predisposing factors to atherosclerotic renovascular disease”[17]. In a supplementary report, Dr George set out a helpful explanation of the mechanisms involved in renal failure:
… the mechanisms involved include hypertension causing or being associated with chronic vascular disease including renal vascular disease. The renal vascular disease leads to chronic renal failure/chronic kidney disease by causing renal ischaemia. The kidneys in chronic renal failure then fail to receive sufficient blood flow to enable them to excrete substances that build up in the body and ultimately poison the patient. The likely terminal events in a person dying from renal failure are one or more or all of respiratory failure, cardiac arrest, circulatory failure, cessation of brain function and pneumonia.
The Doctor proceeded to draw the following conclusion:
My summary of this information is that Commander Julian suffered from hypertension since at least 1988. He received treatment for this but the treatment failed to prevent it from causing (or otherwise associating with) complications that included atherosclerotic renal vascular disease. This deprived his kidneys of adequate blood supply (renal ischaemia), producing progressive chronic renal failure and ultimately his death. I therefore consider that his hypertension played a major role in the disease process that eventually killed him.
[17] T13 folio 88.
The diagnosis of atherosclerotic renovascular disease and progressive chronic renal failure is consistent with the evidence of Dr Talaulikar[19], Mr Julian’s treating renal physician, and with that of Dr Lanteri, a consultant nephrologist. Dr Lanteri reported that:
The presumptive diagnosis of atherosclerotic renovascular disease is reasonable, and it is the most likely explanation for his ultimate renal failure and death.
…
Although hypertension was one contributing factor to renal failure, other factors (age, vascular disease, and chronic infection of the prosthetic hip) were more significant. His blood pressure had been more elevated many years before, when his renal function was better, and the hypertension was reasonably well controlled at the time of death. Hypertension was not the cause of his death.[20]
[19] See ST 1, ST2 and ST3.
[20] Exhibit R1, page 2.
In oral evidence, Dr Lanteri clarified his remarks about the contribution of hypertension to renal failure – the hypertension may have contributed in some degree to damage Mr Julian’s kidneys and in that regard may have contributed to the development of renal failure (or chronic kidney disease) over many years, “but it was not really the cause of the kidney stopping” – Mr Julian’s blood pressure levels were not sufficient, in his opinion, to cause kidney failure or the end stage renal failure that led to the terminal event or events. Under cross-examination, Dr Lanteri explained that the degree of hypertension was not sufficient to cause the pathological changes that led to his death – disease processes relating to age, hyperlipidaemia and chronic infection of Mr Julian’s hip prosthesis were probably more significant than those relating to hypertension. Nevertheless, each of these factors contributed to Mr Julian’s renal disease in varying degrees; the renal disease led to chronic progressive renal failure; and the renal failure inevitably led, over a number of years, to end stage renal failure and the terminal events from which Mr Julian died.
On Dr George’s evidence “Appropriate clinical management of proven hypertension would be likely to improve a patient’s longevity and reduce his risk of complications of the hypertension”[21]. It is germane to consider the relevant history. When dealing with Mrs Julian’s previous claim for a widow pension, the Tribunal (differently constituted) determined that Mr Julian did not suffer from hypertension during the period of his defence service[22].
[21] ST4, page 2.
[22] Re Julian and Repatriation Commission [2010] AATA 1026.
In 1989 Dr Graham reported that Mr Julian was suffering from “transient hypertension”[23]. On 4 September 2000, Dr Lim reported that Mr Julian’s blood pressure was controlled by medication; blood pressure levels from January to September 2000 were between 150/70 and 160/80 and the Doctor queried whether Mr Julian had developed hypertensive nephropathy[24]. The present evidence does not reveal whether this was resolved at the time.
[23] T4 folio 31.
[24] T5 folio 49.
On 20 February 2007, Dr Talaulikar reported that Mr Julian’s blood pressure was 130/70. On 12 June 2007, the Doctor reported that “Blood pressure is marginally high at 148/68 but this is a one of [sic] reading which if persistent will warrant a change in his antihypertensive medication”[25]. In subsequent reports Dr Talaulikar reported blood pressure readings of 140/60 on 9 October 2007[26], 120/80 on 5 December 2007[27] and 110/70 on 17 December 2007[28]. On 14 January 2008 Dr Lim reported that Mr Julian’s blood pressure was 130/55[29] with a history of “mild renal impairment since 1990s, last 3 years increasing severity and worsening of function”[30].
[25] ST2.
[26] ST3.
[27] T4 folio 46.
[28] T4 folio 45.
[29] T5 folio 40.
[30] T5 folio 40.
Dr George’s evidence is that Mr Julian’s hypertension from 1998 to 2008 “resisted easy control”[31], whereas Dr Lanteri considered that Mr Julian’s “blood pressure control [was] optimal, given the limitations imposed by his co-morbidities”[32]. On balance, it appears likely that Mr Julian’s hypertension was reasonably well controlled, especially in the period before his death and I accept Dr Lanteri’s evidence on this point.
[31] Exhibit A1, page 1.
[32] Exhibit R1, page 2.
Dr George’s opinion that hypertension played a major role in the disease process that caused Mr Julian’s death is in stark contrast to Dr Lanteri’s conclusion that hypertension may have played some minor role in atherosclerotic renovascular disease, but it did not cause his death. To my mind, for the purposes of the Act, Dr Lanteri’s assessment is preferred because it most closely approaches the correct test: identifying the disease that accounts for the pathological changes from which Mr Julian died, and thus the medical cause or causes of the death. Dr George’s assessment was made on the basis that hypertension contributed to disease processes that ultimately caused the pathological changes that led to death.
This is not a matter of simply looking to the terminal or ultimate physiological or pathological event that caused the death; nor is it a matter of identifying any factor in the span of a life now ended that may in some way have contributed to the onset or progress of, in this case, a renal vascular disease, where the vascular disease accounted for the pathological changes (narrowed vessels and reduced blood flow) that caused chronic and progressive renal failure processes over a period of years and led, ultimately, to the terminal events that caused the death.
The correct approach is to determine whether the disease or diseases from which Mr Julian died, having regard to the medical cause or causes of his death, included hypertension – did he die from, or partly from, hypertension? No assistance is obtained by inverting the question – did hypertension cause his death? – or by focussing the enquiry on contributory factors – did hypertension contribute to the death or to disease processes that led to death? No exegetical gloss is required to properly apply the legislative test when determining the injury or disease and the medical causes of pathological changes from which Mr Julian died.
To my mind, the medical evidence in respect of the pathological disease processes that led to Mr Julian’s death is quite clear: atherosclerotic renovascular disease caused renal ischaemia that resulted in chronic renal failure which progressed over a period of years, ultimately reaching end stage renal failure, in the course of which Mr Julian’s kidney function failed or ceased, causing the terminal or ultimate event from which he died. It can be accepted that hypertension and other factors including age and hyperlipidaemia may have contributed in varying degrees to the atherosclerotic renovascular disease Mr Julian suffered; but it does not follow and the present evidence, including that of Dr George, does not establish on the balance of probabilities that hypertension played any real part in the pathological changes that led to Mr Julian’s death, or that hypertension is a disease from which he died. Whether any other factor, such as hyperlipidaemia for example, played any real role in the medical causes of Mr Julian’s death was not agitated in these proceedings.
Weighing the evidence, I am reasonably satisfied that Mr Julian died from progressive chronic renal failure caused by atherosclerotic renovascular disease. I am reasonably satisfied that the medical causes of the death are reduced blood flow as a result of renal ischaemia, causing progressive and chronic renal failure over a period of years and leading, ultimately, to end stage renal failure and the terminal events that killed Mr Julian. It follows that atherosclerotic renovascular disease and renal ischaemia are medical causes of Mr Julian’s death. These conditions have not been claimed or determined to be service- caused, nor has any such connexion with service been agitated in these proceedings. As I said during the hearing, these are matters for Mrs Julian to claim and, if she does, for the Commission to determine on the merits. Presently, I can go no further.
It can be accepted that hypertension is a risk factor, or a predisposing factor, for atherosclerotic renovascular disease, and it is possible, on the evidence of Dr George, Dr Lanteri and Dr Bashir , that it was implicated in causing that disease in Mr Julian’s case, but the present evidence does not establish to the reasonable satisfaction standard that hypertension accounts for the pathological changes that led to Mr Julian’s death. Dr George and Dr Lanteri discussed the causal linkage between hypertension and atherosclerotic renovascular disease in terms that do not establish that it was a medical cause of Mr Julian’s death. Dr George put it thus – “the treatment [for hypertension] failed to prevent it from causing (or otherwise associating with) complications that included atherosclerotic renovascular disease”[33]. Dr Lanteri clarified his written opinion that “hypertension was one contributing factor to renal failure”[34] in his oral evidence: the degree of Mr Julian’s hypertension and the contribution it may have made to the onset or progress of atherosclerotic renovascular disease is not sufficient to establish that it was a medical cause of his death.
[33] Exhibit A1, page 2.
[34] Exhibit R1, page 2.
In this case, general propositions concerning risks and predisposing factors, such as set out in the extract of the Merck Manual in respect of hypertension, do not advance the matter. It can be accepted, generally, that hypertension is a risk or pre-disposing factor in the development of atherosclerotic renovascular disease; but it is not presently established that hypertension played any real role, as a matter of fact, in the pathological changes that led to Mr Julian’s death.
Was Mr Julian’s death service-caused?
In Mrs Julian’s submission, if hypertension contributed to her husband’s death that is sufficient to satisfy the ‘from which’ test under s 8(1)(e) or 70(5)(f). In her submission reference may be made to the applicable Statement of Principles when “determining the relationship between the Veteran’s accepted disability and his death”[35], namely Statement of Principles 35 or 36 of 2003 concerning Hypertension. These instruments contain the following definitions –
[35] Applicant’s Statement of Facts and Contentions, 18 April 2012 at [4.8].
“death from hypertension” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s hypertension;
…
“terminal event” means the proximate or ultimate cause of death and includes:
(a)pneumonia;
(b)respiratory failure;
(c)cardiac arrest;
(d)circulatory failure; or
(e)cessation of brain function.
This list of terminal events is inclusive and Mrs Julian asserts that it may include renal failure. Thus, if the hypertension contributed to the renal failure, she argues that the definition of ‘death from hypertension’ would be satisfied, establishing Mr Julian’s kind of death. On this basis, she maintains that no different, or more restrictive, result should be obtained when determining whether hypertension is one of the medical causes ‘from which he died’ under s 8(1)(f) or s 70(5)(e).
In Mrs Julian’s submission, to construe these provisions in a manner that would produce a different, and more restrictive, result than the regime that would otherwise apply under the standards of proof set out in s 120A and 120B in relation to Statement of Principles determined by the Repatriation Medical Authority under s 196B, would be wrong. This, Mrs Julian argues, would give rise to inconsistency and anomalous results that could not have been intended by the legislature. Furthermore, the ambiguity in the provision requires a generous interpretation in the context of beneficial legislation: the phrase ‘from which’ should be construed in a manner that is consistent with and no more restrictive than phrases including ‘attributable to’ or ‘contributed to’.
While there is merit in aspects of these submissions, the result for which Mrs Julian contends is not made out.
The present evidence establishes that hypertension may have contributed to atherosclerotic renovascular disease, but it was the atherosclerotic renovascular disease which led to renal ischaemia and chronic renal failure, ultimately resulting in death. As I have said, it is not established to the reasonable satisfaction standard that hypertension contributed to or played any real role in the pathological changes that led to Mr Julian’s death, or in the medical causes of his death. The contributory connection for which Mrs Julian contends between hypertension and Mr Julian’s death is at a remove and it is indirect to the extent that it cannot properly be accepted that hypertension is a disease from which Mr Julian died.
The operation and meaning of s 8(1)(e) and s 70(5)(f) are not limited or extended by any terms contained in a Statement of Principles. The beneficial nature of the Act does not demand a different interpretation. Statements of Principles are instruments subsidiary to the Act that are determined for the express purpose of relating particular kinds of injury, disease or death to service. They are not instruments that may be used for the purposes of diagnostic assessment when determining the kind of disease or death in a particular case, even though it may be permissible to have regard to a Statement of Principles in order to address legal issues of the kind presently raised.
The meaning given to ‘death by hypertension’ in Statements of Principles 35 and 36 of 2003 concerning Hypertension applies a contribution test – ‘death from a terminal event or condition that was contributed to by the person’s hypertension’. This requires evidence to support a finding that the person’s hypertension contributed to the terminal event or condition from which the person died. This, in terms, is an expressly different test than the ‘from which’ test to be applied under s 8(1)(f) and s 70(5)(e).
The phrase ‘contributed to’ does not expressly impose an evaluative threshold of proximity or materiality, or other like conception of contributory degree below which a causal connection may be disregarded. Nevertheless, it is quite clear that a causal contribution is required to satisfy this test under the Statement of Principles. Linguistic gymnastics aside, the key element is whether hypertension played any real causal role in the terminal event or medical condition from which death resulted. To my mind, on the present evidence, it did not; and no different result would be obtained under either formulation.
Much was said about Keely J’s statement of the law in Repatriation Commission v Hayes[36] and a Veterans’ Review Discussion Paper[37], which appears to have been adopted by the Tribunal in previous cases[38], concerning the proposition that the ‘from which’ test of causation is more direct or proximate than the ‘arising out of’ or ‘attributable to’ tests, under s 8(1)(a) or 70(5)(a) for example, or the ‘results from’ test. Keely J was very clear –
The second submission was that the words “from which he has died” in s.24(2)(a) [of the Repatriation Act 1920] apply “a more strict test of causation” than the words “results from” or “arising out of” which appear in Workers’ Compensation statutes, or the words “has arisen out of or is attributable to his war service” which are used in s.101(1)(b) of the Act. In my opinion there is nothing in the words “from which he has died” or in their context which manifests an intention to require “a more strict test of causation” than if the words used in s.24(2)(a) were “from which death resulted”.
…
I am not prepared to hold that the words “the incapacity… from which he has died” in s.24(2)(a) could not, as a matter of law, apply to a case where “the ordinary answer of an ordinary man” (in the words of Windeyer J [in Commonwealth v Butler (1958) 102 CLR465 at 479-480]) would be that death has “resulted” from incapacity in the left eye.[39]
[36] [1982] FCA 107.
[37] Death From An Accepted Disability, Bruce Topperwien, Veterans’ Review Discussion Paper No 7, April 2000.
[38] See Re Shaw and Repatriation Commission [2005] AATA 354 and Re Magill and Repatriation Commission [2007] AATA 9, for example.
[39] Repatriation Commission v Hayes [1982] FCA 107 at pages 5 and 6.
Keely J set aside the Tribunal’s decision on the basis that it had incorrectly considered “whether the incapacity ‘played some material part’ in the car accident [that led to Mr Hayes’ death]” and it “failed to properly consider the meaning of the words ‘from which’ in s. 24(2)(a) and their correct application to the facts of the case”[40]. To this exposition of the law in 1982, in reference to the Repatriation Act 1920, must be added the current expression of the law in 2009 by Full Federal Courts in Collins v Repatriation Commission[41] and Hill v Repatriation Commission[42], whereby it is clearly established that, in the statutory setting of the current Act, the phrase “the disease from which the member (or veteran) died” imports questions of causation (and attributability) that must be answered by reference to the medical cause or causes of the death – “the medical condition which accounts for the pathological changes leading to death”[43].
[40] Ibid, at page 7.
[41] [2009] FCAFC 90.
[42] [2009] FCAFC 91.
[43] Collins v Repatriation Commission [2009] FCAFC 90, per Mansfield and Stone JJ at [82].
The words ‘from which’ refer to a causal connection between the death and the injury or disease. This connection is consistent with the causative question that arises when determining the ‘kind of death’ for the purposes of s 120A and 196B[44]. Both require determination of the medical causes of the particular death. It is also consistent with the causal relationship expressed by the phrase ‘results from’, which requires “a causal link”[45] between an occurrence during service and injury, disease or death - “a relationship between that occurrence and the death”[46] – for the purposes of s 8(1)(a) for example.
[44] Ibid, per Mansfield and Stone JJ at [78].
[45] Woodward v Repatriation Commission (2003) 131 FCR 473 at 488.
[46] Repatriation Commission v Law (1980) 47 FLR 57 at 66.
It follows, to my mind, that there is no apparent inconsistency in the legislative provisions that must be applied when determining whether a particular death is war-caused or defence-caused.
Conclusion
It is not established to the reasonable satisfaction standard that hypertension is a disease from which Mr Julian died. The decision under review is affirmed.
Alleged breaches of the Legal Services Direction
Finally, at the conclusion of the hearing, Mrs Julian’s representative, Peter Jorm, raised issues concerning the behaviour of the Commission in the course of proceedings before the Tribunal, alleging “eight separate breaches of the Attorney-General’s Legal Services Direction of 2005”[47]. The first two alleged ‘breaches’ concern a jurisdictional point in relation to which Mr Jorm says the Commission acted inconsistently. The third allegation concerns inconsistency in relation to an earlier concession by the Commission. The fourth concerns alleged inconsistency by the Commission in respect of the present relevance of particular Statements of Principles. The fifth, Mr Jorm says, relates to the Commission’s failure to participate in alternative dispute resolutions processes. In Mr Jorm’s submission, the Commission did not accept reports to it by Dr Zwartska and Dr Bashir that supported Mrs Julian’s claim, but rather put her to proof, thereby committing a sixth ‘breach’. The seventh concerns an allegation that the Commission failed to use its best endeavours to assist the Tribunal pursuant to the obligation imposed by s 33(1AA) of the Administrative Appeals Tribunal Act 1975. Mr Jorm asserts that Dr Lanteri did not address “important issues” as a result of information the Commission provided when briefing him (that a statement of principles was not applicable). The final allegation is that by requiring proof of matters it knew to be true, the Commission put both parties to the additional cost of obtaining expert medical reports.
[47] Transcript, 13 June 2012, page 40.
I stood the matter over in order to provide the Commission time to make a properly considered response. This was provided in documentary form[48], without further oral submissions.
[48] Respondent’s Submissions Regarding Alleged Breaches of the Model Litigant Obligations, 27 June 2012.
The Commission denies that it has breached any model litigant obligation as alleged or at all.
Under s 55ZG(3) of the Judiciary Act 1903, non-compliance with a Legal Services Direction may not be raised in proceedings before the Tribunal unless it is raised by or on behalf of the Commonwealth. The Tribunal has no authority to determine any breach of the Legal Services Directions2005. Insofar as Mr Jorm’s allegations concern alleged breaches of the Legal Services Directions, these are not matters for me to address.
Nonetheless, as a matter of general principle established by long-standing authority[49], the Commonwealth, including in this case the Commission, is expected to behave in a model or exemplary manner as a party to litigation, including in proceedings before the Tribunal, acting fairly, honestly and diligently, with complete propriety and with the highest professional standards. This imposes an obligation on those instructed to legally represent the Commonwealth to behave in accordance with these exemplary standards. In proceedings before the Tribunal there is an additional obligation on a decision-maker to use his or her best endeavours to assist the Tribunal to make the correct or preferable decision[50].
[49] See FVR (WA) Pty Ltd v Federal Commissioner of Taxation [2012] FCAFC 90 at [41]-[42]; Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333 at 342.
[50] S 33(1AA), Administrative Appeals Tribunal Act 1975.
It is in this light that I have carefully considered the matters Mr Jorm has raised and make the following comments. My comments do not reflect upon Ms Dowsett of counsel, who ably represented the Commission at the hearing.
To my mind, the manner in which the Commission approached the jurisdiction issue does not reveal inconsistency, but rather it points to uncertainty. The particular issue raised by the Commission related to potential re-litigation of matters previously decided by the Tribunal. That was a reasonable issue for it to raise early in the Tribunal proceedings. Resolution of the issue required a proper understanding of the specific issues to be decided by the Tribunal when dealing with Mrs Julian’s application and the particular matters she intended to press. It appears that those matters were considered in two conferences, although I have no knowledge of the content of those discussions. It appears that the Commission did not settle its position in respect to the jurisdictional question until an interlocutory hearing had been listed to deal with the issue. The only observation I would make is that the necessity for a listing of this kind may have been avoided if the matters contended for by Mrs Julian and the Commission’s response had been clarified at an earlier point in the proceedings.
There is an obligation on all decision-makers to address the correct legal question within a reasonable time[51]. Considering the history of Mrs Julian’s claim, it appears that the correct legal questions under s 8(1)(e) or s 70(5)(f) were not squarely addressed by earlier decision makers when determining her claim. Even though it was noted that Mr Julian’s hypertension was accepted as service-caused and the decision makers applied themselves to determining the kind of death he suffered, they did so without reference to the words of the applicable legislation, referring, instead, to Statements of Principles that were not strictly applicable. This failing cannot be answered simply by pointing to the case raised by Mrs Julian or prosecuted on her behalf. It was for the Commission or its delegates to properly determine the correct legal question when addressing her claim. Nonetheless, it does not follow that a different result would have been obtained or that the proceedings in the Tribunal would have been avoided if the correct legal question had been addressed. Issues of this kind underscore the importance of the statutory rights of a claimant, such as Mrs Julian, to obtain impartial merits review and the independent tribunal mechanisms provided by the Commonwealth for that purpose.
[51] SCI Operations Pty Ltd & Anor v Commonwealth of Australia (1996) 69 FCR 346, per Beaumont and Einfeld JJ at 368.
The concession that Mr Julian suffered from hypertension as defined by the Statement of Principles is not determinative of the issues to be decided by the Tribunal in these proceedings. The manner in which it was dealt with in the course of the proceedings does not reveal anything worthy of comment, although I struggle to see why the Commission had any difficulty standing by its earlier concession. The evidence clearly establishes that the concession was well made and hypertension was accepted as service-caused, but it does not follow that Mr Julian died from hypertension.
It is not correct to say that the Commission required Mrs Julian to prove a matter it knew to be true. The point to be tested was not whether Mr Julian suffered from hypertension or whether the Statement of Principles concerning hypertension was satisfied; it was whether hypertension was a disease from which he died.
This issue and the medical condition or conditions from which Mr Julian died are not adequately addressed by the reports of Dr Zwartska and Dr Bashir. Those reports serve to establish that atherosclerotic renovascular disease caused the pathological changes that led to Mr Julian’s death and identified factors that may have contributed to that disease – hypertension, hyperlipidaemia, aging, smoking and diabetes. Additional evidence of an expert medical kind was required to assess whether hypertension was a disease from which Mr Julian died. Whether or not one or both parties decided to obtain additional evidence of an expert kind addressing this point was a matter for them. The expert reports of Dr George and Dr Lanteri assisted the Tribunal in its deliberations on this point, and it was reasonable and appropriate for the parties to obtain them.
The case raised by Mrs Julian’s application could not be determined by reference to Statements of Principles, as the issue of service causation had already been decided. Mr Jorm’s reliance on the definitional content of the Statement of Principles concerning hypertension, namely ‘death by hypertension’, raises a legal point of construction. The manner in which the Commission dealt with this point, and with issues relating to Statements of Principles, does not raise any issue that requires further comment, although it is appropriate to observe that these are matters of some legal complexity.
In any event, it appears that the Commission put the Statement of Principles for Hypertension to Dr Lanteri when briefing him. It appears to me that Dr Lanteri addressed relevant issues in his report, although, as I said during the hearing, if the Commission considered his report to be insufficiently detailed in particular regards, the appropriate course would have been to obtain a supplementary report from the Doctor to rectify the deficiency and to provide this to the Tribunal and to Mrs Julian well ahead of the hearing. In so doing, it may not have been necessary to call the Doctor to give oral evidence, as he was not required for cross-examination.
With the benefit of hindsight, it is likely that areas for improvement could be identified in the conduct of many proceedings, and these proceedings are no exception. But it does not well serve to dress up lack of clarity, points of disputation or minor delays as behaviour that transgresses upon the obligation of the Commission to assist the Tribunal or to adhere to the standard of fair play that must be observed more generally[52]. The obligation on the Commonwealth to act as a model litigant imposes a high standard that influences the way in which it conducts litigation, but it does not impinge upon the Commonwealth’s ability to assert its substantive rights, as with any other litigant[53].
[52] Scott v Handley [1999] FCA 404 at [43] to [46].
[53] Wodrow v Commonwealth of Australia [2003] FCA 403 at 42; Australian Investments and Securities Commission v Hellicar & Ors [2012] HCA 17 per Heydon J at [240].
On balance, it appears to me that the matters raised by Mr Jorm do not require me to take any further action. They do not rise to the level where referral to the Office of Legal Service Coordination is justified. No unfairness or injustice has resulted. The orderly conduct and reasonably prompt resolution of these proceedings has not been adversely affected. This is not a case that has arisen “at the whim of those who fund their enthusiasm for the fray, not from their own purses but from the long purse of Government”[54], and it is not one in which additional costs have unnecessarily been incurred. The Commission has not failed to assist the Tribunal to arrive at the correct or preferable decision, and it has not taken purely technical points of practice and procedure, or taken advantage of its own default. That said, the opportunity for improvement should not be passed over too lightly.
[54] Director-General of Social Security v Chaney (1980) 3 ALD 161, per Deane J at 181.
| I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of |
...............................[sgd]......................................
Associate
Dated 6 July 2012
| Date of hearing | 13 June 2012 |
| Date final submissions received | 27 June 2012 |
| Advocate for the Applicant | Peter Jorm |
| Counsel for the Respondent | Cathy Dowsett |
| Solicitors for the Respondent | Cassandra Madden, Australian Government Solicitor |
[18] Exhibit A1, page 2.
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