McKenzie and Repatriation Commission
[2007] AATA 81
•14 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 81
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/129
VETERANS' APPEALS DIVISION ) Re JUDITH McKENZIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date14 March 2007
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Ian McKenzie's death was war caused.
..............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - Death of veteran - Kind of death - Real or operative cause of death – Reasonable satisfaction – Statement of principles – Hypertension – Reasonable hypothesis not disproved – Decision set aside.
Veterans' Entitlements Act 1986 ss 6A, 8, 9, 13, 120, 120A
Statement of Principles concerning Hypertension Instrument No. 35 of 2003, as amended by Instrument No. 3 of 2004
Bull v Repatriation Commission (2001) 188 ALR 756; [2001] FCA 1834
Spencer v Repatriation Commission (2002) 118 FCR 453; (2003) 34 AAR 379; [2002] FCA 229
Woodward v Repatriation Commission [2003] FCAFC 160
Gerzina v Repatriation Commission [2004] FCAFC 96
Byrnes v Repatriation Commission (1993) 177 CLR 564; [1993] HCA 51
Hayes v Repatriation Commission [2005] FMCA 125
Repatriation Commission v Towns (2003) 38 AAR 77; [2003] FCA 1262
Treloar v Austalian Telecommunications Commission (1990) 26 FCR 316; (1990) 97 ALR 321
Re Martyn and Repatriation Commission [2006] AATA 895
Repatriation Commission v Hancock (2003) 37 AAR 387; [2003] FCA 711
REASONS FOR DECISION
14 March 2007 Mr S. Webb, Member 1. Judith McKenzie is the widow of Ian McKenzie, a veteran with World War Two operational service. Mrs McKenzie made a claim for pension following the death of her husband For that claim to succeed the death of her husband must be war-caused. Successive decision makers, including the Veterans’ Review Board, have determined that the death was not war-caused. Mrs McKenzie is unhappy with this outcome.
2. The issue for the Tribunal to determine is whether or not Mr McKenzie’s death was attributable to his war service. His Honour Justice Selway set out the correct approach to be adopted by the Tribunal in cases such as this in Repatriation Commission v Hancock [2003] FCA 711 at paragraph 11. Thus it is first necessary to determine the preconditions for a claim, other than causation. The standard of proof is the reasonable satisfaction standard, on the balance of probabilities.[1] There is no dispute and I find that:
(a)Mr McKenzie died on 17 March 2005.
(b)Mrs McKenzie is his widow.
(c)Mr McKenzie had operational service within the meaning of that term pursuant to section 6A of the Veterans’ Entitlements Act 1986 (Cth) from 11 September 1940 to 2 January 1949. The total period of his service was from 11 September 1940 to 31 July 1956.
[1] Subsection 120(4).
3. It is not disputed that the Commission previously accepted that Mr McKenzie’s essential hypertension, chronic blepharo-conjunctivitis and pityriasis capitis were due to his service.
4. The next step, applying the same reasonable satisfaction standard, is for the Tribunal to determine the ‘kind of death’ Mr Mckenzie suffered.[2] In order to determine the ‘kind of death’ it is necessary to consider the conditions that cause the particular death, and there may be more than one such cause.[3] Furthermore, the Tribunal is to establish the real or operative cause of the death and not merely the medical event by which life was terminated. Whether or not a particular illness or disease can fairly and properly be considered the cause of death must be determined in the particular circumstances on the balance of probabilities.
[2] Subsection 120A(2) and (4).
[3] Repatriation Commission v Hancock [2003] FCA 711 at paragraph 8.
5. It was common ground that the ‘kind of death’ Mr McKenzie suffered was as specified on the Coroner’s Certificate, being cardiac tamponade and aortic dissection.[4] However, it was also common ground that if the ‘kind of death’ was death by hypertension, then the death would be accepted as war-caused pursuant to paragraph 8(1)(f) of the Act, hypertension having previously been determined as war-caused. In the Commission’s submission the approach adopted by agreement of the parties and the Veterans Review Board and the Commission’s delegates in this matter concerning the ‘kind of death’ are correct.
[4] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), T5.
6. As will appear, I do not agree.
7. Although the parties were not in dispute concerning the ‘kind of death’, the Tribunal must determine the ‘kind of death’ to its reasonable satisfaction with reference to any and all Statements of Principle and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which are applicable to the particular death.[5]
[5] Repatriation Commission v Hancock [2003] FCA 711 at paragraph 11.
8. The Tribunal is not limited in its determination to the case articulated by or on behalf of Mrs McKenzie if the material before it raises a case not so articulated.[6] With that in mind, and with an eye to the rules of procedural fairness, the parties were invited to make written submissions on the evidence concerning the particular ‘kind of death’ following the hearing. I have carefully considered those submissions.
[6] Benjamin v Repatriation Commission (2003) 70 ALD 622 at 633.
9. The Commission maintains that Mr McKenzie’s ‘kind of death’ was aortic dissection causing cardiac tamponade, being a terminal medical event. It is said that hypertension is part of the chain of causation of aortic dissection as opposed to being part of the kind of death. In the Commission’s submission a terminal event is not a defined disease process, but is a final event such as cessation of breathing or cessation of heartbeat. Thus, in the Commission’s submission, cardiac tamponade (being a kind of cardiac failure) is a terminal event that was caused by aortic dissection (being the real or operative cause of death). Reference is made to the definition of aortic dissection in the MedlinePlus Medical Encyclopaedia in which aortic dissection is said be “a condition in which there is bleeding into and along the wall of the aorta (the major artery from the heart)”.[7] This, it is said, is a disease process that is not directly comparable to a terminal event and is, therefore, the ‘kind of death’ of which hypertension was not an integral part.
[7] T10 folio 44.
10. However, when one carefully considers the information concerning aortic dissection in the MedlinePlus Medical Encyclopaedia to which the Commission has referred, it is plain enough that the bleeding association with aortic dissection most often occurs because of a tear or damage to the inner wall of the aorta. High blood pressure is said to be a risk factor and a symptom that is associated with the disease.[8]
[8] T10 folios 44-45.
11. Dr Lavinia Hallam conducted a post mortem examination for the Coroner following Mr McKenzie’s death. She reported “haemopericardium due to ruptured aortic dissection” and commented that this condition is “most commonly associated with hypertension” and “is rarely related to atheroma”, and in Mr McKenzie’s case “there were no features to suggest an inherited connective tissue disorder”.[9] She found only moderate atheroma without aneurysm formation in the aorta[10] and reported:
“The aorta shows splitting of the media and dissection. There is atheroma but no features to seriously raise a connective tissue disorder as the aetiology for the dissection. The heart did show features of hypertrophy that could reflect hypertension, a well known association of aortic dissection.”
[9] Exhibit A4, p. 6.
[10] Exhibit A4, p. 3.
Dr Hallam concluded that the direct cause of death was cardiac tamponade and the antecedent cause was ruptured aortic dissection. She noted that hypertension was a significant condition “contributing to the death but not relating to the disease or condition causing it”.[12]
[12] Exhibit A4, p. 7.
12. Dr Hallam was not called to give evidence. However, careful consideration of her autopsy report indicates that hypertension was in all likelihood a significant operative factor that was associated with the medical events that led to Mr Mckenzie’s death, even though it did not relate to the cardiac tamponade that directly caused Mr McKenzie’s death. Mr McKenzie’s blood pressure levels on or immediately prior to 17 March 2005 are not known, however it is not disputed that Mr McKenzie suffered from essential hypertension for many years, that is his blood pressure levels were elevated above 140/90 and he required regular antihypertensive therapy to reduce his high blood pressure.
13. Dr Harrex gave evidence that was substantially consistent with Dr Hallam’s conclusions concerning the causes of death. He estimated that at least in 80 percent of cases, ruptured aortic dissection is caused by hypertension.
14. Accepting that evidence I am reasonably satisfied that hypertension was an operative factor in the medical events leading to Mr McKenzie’s death.
15. In the Commission’s submission there is a distinction to be made between a disease that contributes to the development of another disease, and the disease which is the ‘kind of death’.[13] While the Commission appears to accept that hypertension was the underlying cause of aortic dissection, it submits that Mr McKenzie’s hypertension was a contributing factor to the condition that caused his death and was not an integral part of the ‘kind of death’. Relying on Hayes v Repatriation Commission [2005] FMCA 125 and Re Martyn and Repatriation Commission [2006] AATA 895 the Commission submits that the concept of ‘material contribution’ as discussed in Treloar v Austalian Telecommunications Commission (1990) 97 ALR 321 is not one that is appropriate to introduce when determining the ‘kind of death’ in claims such as this under the Act.
[13] Respondent’s Amended Submissions, 8 February 2007, p. 4.
16. I agree. The concept of ‘material contribution’ that arises in relation to diseases under the Safety, Rehabilitation and Compensation Act 1988, or antecedent compensation legislation such as considered in Treloar’s case, is not appropriately imported into the consideration of the ‘kind of death’ suffered by a veteran. What is required are findings concerning the real and operative cause or causes of death, that is the elements or factors or events that were integral to the particular death. The term ‘kind of death’ is wide reaching and is not limited to the precise medical causation of death.[14] Whether or not a factor is an operative factor that is integral to the ‘kind of death’ is a matter of fact and degree for determination by the Tribunal in consideration of the particular circumstances and all of the material before it.
[14] Repatriation Commission v Towns [2003] FCA 1262 at paragraph 30.
17. In Hayes’ case the Tribunal determined the ‘kind of death’ to be multiple myeloma and rejected submissions that either hypertension or hypertension-related artheroschlerotic disease was a medical cause of death, despite some evidence that artherosclerosis may have contributed in a small way to Mr Hayes death (but any contribution was insufficient to be included on the death certificate). Furthermore the Tribunal found that Mr Hayes did not suffer from hypertension within the meaning of the Statement of Principles concerning that condition.[15] In Martyn’s case there was (contested) evidence before the Tribunal that Mr Martyn’s diabetes may have materially contributed to cause recurrent infections that may have hastened his death. The Tribunal found that Mr Martyn’s death was due to metastatic cholangiocarcinoma and that the terminal cancer and the biliary obstruction were the likely causes of the infections Mr Martyn suffered prior to his death. Furthermore while the Tribunal accepted that diabetes may increase the risk of infection in certain circumstances, it concluded that Mr Martyn’s was not such a case.[16]
[15] Hayes v Repatriation Commission [2005] FMCA 125 at paragraph 27.
[16] Re Martyn and Repatriation Commission [2006] AATA 895 at paragraphs 29-35.
18. Thus both Hayes and Martyn are distinguished on the facts from the present case, in which there is consistent medical evidence indicating that:
(a)Mr McKenzie suffered from essential hypertension for many years;
(b)hypertension was identified as a significant contributing factor to Mr Mckenzie’s death at autopsy;
(c)other causes of aortic dissection were not supported by the findings at autopsy;
(d)high blood pressure is a symptom of aortic dissection; and
(e)aortic dissection is most commonly caused by hypertension.
19. The Commission says that if, according to the post mortem, hypertension is accepted as the ‘kind of death’ then diabetes mellitus, cirrhosis of the liver and presumed alcoholic liver disease were also ‘kinds of death’. I do not agree. It is true that diabetes, cirrhosis of the liver and presumed alcoholic liver disease are mentioned under the heading “Other significant conditions contributing to the death but not relating to the disease or condition causing it” at page 7 of Dr Hallam’s autopsy report. It is possible that those conditions may be ‘kinds of death’. However neither Dr Hallam’s autopsy report nor Dr Harrex’s evidence indicate that these conditions, separately or together, were operative factors integral to Mr McKenzie’s death. Dr Hallam did not report that the appearance of “relatively quiescent cirrhosis” and the possibility of alcoholic liver damage were causally associated with aortic dissection. She made no other reference to Mr McKenzie’s diabetes. However, she did report a strong causal association between hypertension and aortic dissection and made autopsy findings pointing to that conclusion.[17] Thus, in the particular circumstances there is not sufficient evidence to establish to the Tribunal’s reasonable satisfaction, nor was it contended by Mrs McKenzie that diabetes, cirrhosis of the liver and/or presumed alcoholic liver disease are the kind or kinds of death from which Mr McKenzie suffered. The same cannot be said in relation to hypertension.
[17] Exhibit A, pp 5 and 6.
20. Having carefully considered all of the evidence, the submissions of the parties and the relevant caselaw, I am reasonably satisfied that hypertension was the kind of death Mr McKenzie suffered.
21. That being so, Mr McKenzie’s death by hypertension is taken to be war-caused by effect of paragraph 8(1)(f) of the Act as his hypertension was accepted as a war-caused disease. Thus, the decision under review will be set aside and in place thereof a decision entered that Mr McKenzie’s death was war-caused.
22. In conclusion I make the following observations. It is accepted that Statements of Principle have no role to play in determining the diagnosis of the particular kind of disease or death.[18] Nevertheless, I note that there is a Statement of Principles concerning Hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004) in which ‘death from hypertension’ is defined to include “death from a terminal event or condition that was contributed to by the person’s hypertension”. As the Commission correctly noted the term “terminal event” is further defined to mean the proximate or ultimate cause of death in relation to which particular causes of death are set out: pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function. The list is not exclusive and does not necessarily exclude disease processes if the particular process is a proximate or ultimate cause of death. Nevertheless, death from a ‘terminal event’, as defined, is but one aspect of the meaning of ‘death from hypertension’. The second aspect of the definition is death from a condition that was contributed to by the person’s hypertension. Plainly enough, when determining the Hypertension Statement of Principles the Repatriation Medical Authority adopted a sufficiently broad approach to ‘death from hypertension’ to include death from a condition that was contributed to by the person’s hypertension. On the facts of this case that would include ruptured aortic dissection. There is no inconsistency between the findings I have made in Mr McKenzie’s case and the approach adopted in the Statement of Principles concerning the meaning of hypertension and death thereby (albeit that the purpose of the Statement of Principles is to determine scientific standards relating the claimed condition or death to the relevant service).
[18] Gerzina v Repatriation Commission [2004] FCAFC 96 at paragraphs 12 and 13.
23. Finally, even if I was wrong in concluding that hypertension is the kind of death from which Mr McKenzie suffered, or if I had concluded differently, the matter would still resolve in Mrs McKenzie’s favour. If, as contended by the Commission, the kind of death was not hypertension and was instead aortic dissection, for which there is no Statement of Principles, the connection between that kind of death and Mr McKenzie’s war-service would need to be determined using the methodology set out by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.[19] That approach would mean, in the absence of a ‘head’ Statement of Principles that is applicable to Mrs McKenzie’s claim,[20] that any intermediate Statements of Principles would not apply.[21] The standards of proof that would then apply to Mrs McKenzie’s hypothesis of connection between her late husband’s death and his war-service are set out at subs 120(1) and 120(3) of the Act.
[19] Applying Repatriation Commission v Hancock [2003] FCA 711, Woodward v Repatriation Commission [2003] FCAFC 160 at paragraph 58.
[20] Subsection 120A(3).
[21] See Spencer v Repatriation Commission (2003) 34 AAR 379.
24. The hypothesis posited on Mrs McKenzie’s behalf is that her late husband’s aortic dissection was caused by hypertension that was a result of alcohol consumption that was consequent upon stress during active service and/or a drinking culture on service.
25. In the Commission’s submission there is no material pointing to the necessary causal relationship between the late veteran’s hypertension in 1956 and his war-service. I do not agree.
26. Proof of facts is not in issue at this stage. The relevant part of Mrs McKenzie’s hypothesis is that her late husband consumed more alcohol after he returned from active service than previously, and he started to drink heavily when posted to the Military College of Science, Shrivenham, England in 1948 during the period of his operational service, and he continued to drink heavily thereafter. His drinking in the Military College of Science, she says, was part of a drinking culture that existed at the time in which it was expected that her late husband would participate in the social life of the college in the mess, at official and unofficial functions, and in private gatherings on and off the campus, for example in relation to rugby activities. The research material tendered by the Commission concerning habituation to alcohol on service[22] does not constitute ‘known scientific facts’. Nevertheless, it is appropriate for the Tribunal to have regard to Ministerial or department policy if it is appropriate to do so and unless there is a good reason not to do so. The Departmental Advisory Note No. 2/2000 concerning Alcohol Habituation states that:
“The link to service for the consumption of low doses of alcohol not defined as alcohol dependence or alcohol abuse must be considered on an individual case by case basis.
…
Each case would need to be examined to see if there is a connection between service and the consumption of alcohol. What those connections might be will depend on the claim submitted.”[23]
[22] Exhibit R1, see attachments.
[23] Exhibit R1.
27. Following Bull v Repatriation Commission (2001) 188 ALR 756 at 759-762 and noting that it is necessary to consider all of the material in order to determine whether the hypothesis is reasonable,[24] considering all of the material, there is material that points to the necessary elements of the hypothesis.
[24] Repatriation Commission v Owens (1996) 70 ALJR 904 at 904.
28. Mrs McKenzie gave written and oral evidence to the best of her recollection concerning her late husband’s consumption of alcohol during the latter part of his operational service and thereafter.[25] Her evidence was tested under cross-examination and was consistent with the hypothesis cited above. Mr McKenzie’s brother, Kenneth McKenzie, gave written and oral evidence concerning stress during active service, albeit in a different location than the area of his late brother’s service.[26] Aspects of the history of the Balikpapan campaign, in which the late veteran saw active service, were tendered in evidence and were not challenged.[27] The late veteran’s blood pressure was recorded to be elevated, but within the normal range (132/90) in February 1946.[28] It is not disputed that the late veteran was posted to the Military College at Shrivenham in England in 1948, during the period of his operational service. In or about July 1956 his blood pressure was recorded in excess of the normal range (150/90)[29] and in August 1956 was recorded to be at the upper end of the normal range (135/90)[30]. On 11 August 1984 Dr P. Bosanquet reported that the late veteran “Has had hypertension for 23 yr” and sets out numerous blood pressure readings from 1973.[31] Dr Harrex reported on 8 November 2005 that it was likely the late veteran was consuming at least 400 g of alcohol per week on a regular basis[32] and gave evidence that his hypertension was causally related to the aortic dissection that led to cardiac tamponade.
[25] Exhibit A1.
[26] Exhibit A2.
[27] Exhibit A3.
[28] Exhibit R6.
[29] Exhibit R7.
[30] T3 folio 4.
[31] T4 folio 31.
[32] T13 folios 60 - 62.
29. Thus it can be seen that there is material pointing to each essential element of Mrs McKenzie’s hypothesis connecting her late husband’s death to his operational service. The hypothesis is neither fanciful nor too remote nor untenable. It is not contrary to known scientific facts and it is within the parameters of the departmental advice concerning alcohol habituation on service. It is a reasonable hypothesis on all the material pursuant to subs 120(3) of the Act. That being so, it follows that the late veteran’s death will be war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. No fact that is essential to the hypothesis is disproved beyond reasonable doubt and, applying the same standard, no fact contrary to the hypothesis is proved. It follows, therefore, that the late veteran’s death was war-caused pursuant to subs 120(1) and subs 8(1) of the Act.
decision
30. The decision under review is set aside and in place thereof the Tribunal determines that the death of Ian McKenzie was war-caused.
31. The earliest date of effect of this decision is 18 March 2005, the day following the death of the late veteran.
32. The matter is remitted to the Commission to determine Mrs McKenzie's pension entitlements.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 5 & 6 February 2007
Date of Final Submissions 8 February 2007
Date of Decision 14 March 2007
Representative for the Applicant Mr J Orr
Solicitor for the Applicant Capital Lawyers
Representative for the Respondent Mr N Bunn
Solicitor for the Respondent Department of Veterans’ Affairs
[11] Exhibit A4, p. 5.
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