Collins v Repatriation Commission

GENERAL DIVISION NSD 2007 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

INTRODUCTION 1 The appellant June Collins is the widow of Donald Collins (the veteran). The veteran died on 30 March 2005, at the age of 83. Mrs Collins applied for a war widow's pension under the Veterans' Entitlements Act 1986 (Cth) (the VE Act) on the basis that the veteran's death was war-caused. The Repatriation Commission, the Veterans' Review Board, and then on review the Administrative Appeals Tribunal (the Tribunal) refused that claim. 2 Each of them decided that the death of the veteran was not war-caused, relevantly that it did not arise out of, and was not attributable to, eligible service rendered by the veteran. 3 Mrs Collins appealed to this Court (under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)), claiming that the Tribunal's decision on that issue was infected by an error of law. The appeal was dismissed by a judge of the Court: Collins v Repatriation Commission [2008] FCA 1982. 4 This is an appeal from that decision. 5 Ultimately, the issue on this appeal is a short one. It is whether the decision of the Tribunal about the cause of death of the veteran involved an error of law. It decided that the cause of his death was pulmonary embolism, and that ischaemic heart disease was not one of the causes of his death. That is important because Mrs Collins accepted that the veteran's pulmonary embolism was not war-caused. She claimed that his ischaemic heart disease was war-caused, and that it was one of the causes of his death, so that she was entitled to a pension under the VE Act.

THE LEGISLATION 6 Section 13 of the VE Act provides that where the death of a veteran was "war-caused", or the veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran or to the veteran in accordance with its terms. 7 Section 8 addresses the expression "war-caused" in relation to the death of a veteran. It relevantly provides: (1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if: (a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; … (d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or … (f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be; but not otherwise. Section 9 addresses the expression "war-caused" in relation to injury suffered or disease contracted by the veteran. Section 9(1) largely mirrors s 8(1) in relevant respects. 8 The terms "operational service" and "eligible war service" are defined in ss 6A and 7A of the VE Act. Because the veteran served in the Royal Australian Air Force from 30 January 1943 to 18 January 1946, and served overseas, the whole of his service falls within those two definitions. 9 There are special provisions under the VE Act facilitating proof of the relationship between injury, disease or death and war-service where the injury, disease or death is said to relate to operational service. 10 Section 120(1) of the VE Act relevantly directs the decision-maker where it is claimed that the veteran is incapacitated by injury or disease related to operational service, or that the veteran's death related to operational service, to determine that the injury, disease or death was war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. 11 Section 120(3) then provides: (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: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (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. 12 Each of those provisions is affected by s 120A of the VE Act, which imposes in certain circumstances a further structure on the decision-making process they require. 13 To identify its significance, it is first helpful to refer to s 196B of the VE Act. Section 196B provides for the Repatriation Medical Authority to determine Statements of Principles for the purposes of the VE Act. Section 196B(2) relevantly provides that, if the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that "a particular kind of injury, disease or death" can be related to operational service rendered by a veteran, it must determine a Statement of Principles in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by the veteran, before it can be said that a reasonable hypothesis has been raised connecting the injury, disease or death of that kind with the circumstances of that service. That formulation is, of course, a reference back to s 120(3) of the VE Act, and in turn back to s 120(1) of that Act. 14 Section 120A(3) and (4) provides: (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 subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); 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: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be. 15 Consequently, for the purposes of considering whether the material before the Tribunal raises a reasonable hypothesis connecting the veteran's injury, disease or death with his operational service, the Tribunal has to inquire whether there was in force a relevant Statement of Principles, and if so to apply it in addressing the existence of such an hypothesis. 16 The expressions "kind of injury", "kind of disease" and "kind of death" do not appear in ss 8, 9, 13 or 120 of the VE Act. They are introduced by s 120A(2) and (4) by reference to s 196B(2) and the Statements of Principles which that provision contemplates. Section 120A(2) has no relevance to the present appeal. It operates where the Repatriation Medical Authority has given notice under s 196G that it proposes considering whether to determine a Statement of Principles in relation to a "particular kind of injury, disease or death". 17 The steps involved in making the decision required by ss 13(1) and 120(1) and (3) of the VE Act as to whether an injury, disease or death is war-caused are explained in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at 97-8 (per Beaumont, Hill and O'Connor JJ). If there is no applicable Statement of Principles, the decision-making process is that as explained in Byrnes v Repatriation Commission (1993) 177 CLR 564. The decision in Deledio, it is recognised by the parties, sets out the steps required to be taken where there is no issue about the cause of death (in the words used in s 196B and the relevant Statements of Principles "the kind of death") of the veteran on which the claim for a war widow's pension was made. That is not the issue which presently needs to be addressed. 18 It is common ground that there are necessarily antecedent inquiries before applying ss 120 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: see Repatriation Commission v Hancock (2003) 37 AAR 383 (Hancock) at [9] per Selway J; and 3. the nature or kind of injury or disease suffered by the veteran, or in the case of a claim under s 13(1)(a) the cause of death or the "kind of death" of the veteran: see Hancock at [9] per Selway J; Repatriation Commission v Codd (2007) 95 ALD 619 (Codd) at [22] per Gordon J. It was made plain in Repatriation Commission v Cooke (1998) 90 FCR 307 (Cooke) at 310 per French J (as he then was), Drummond and Carr JJ that ss 120 and 120A assume the existence of a relevant injury or disease or a death which is attributable to a medical cause or causes. Benjamin v Repatriation Commission (2001) 70 ALD 622 (Benjamin) at 635 also recognised that matter. The Full Court (Moore, Emmett and Allsop JJ) at 634-5 [54] said: Section 120(1) of the [VE] Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the [VE] Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]. 19 It may be observed that the Full Court variously referred to the "diagnosis" of the injury or disease or the "characterisation" of the injury or disease. The same concept is conveyed by the use of the expression "medical cause" of the injury or disease or death. That is a question of fact to be decided by the decision-maker. 20 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 21 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). 22 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. 23 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. 24 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". 25 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] 26 The Tribunal then considered whether there was a connection between that kind of death of the veteran and the circumstances of his operational service. It adopted the decision-making process explained in Deledio at 97-8. The first step was, therefore, to decide whether the material pointed to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. If no such hypothesis arose, the claim had to fail. There was no Statement of Principles in respect of injury, disease or death by pulmonary embolism. Hence, s 120A(3) was not engaged. As it noted, there was no attempt on the part of Mrs Collins to connect the veteran's operational service with his death from pulmonary embolism. The Tribunal understandably found that there was no material which pointed to a hypothesis connecting his death by pulmonary embolism with his operational service, and so it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that his death was war-caused. 27 Consequently, the claim of Mrs Collins failed.

THE DECISION AT FIRST INSTANCE 28 The primary judge recognised that there is some difficulty in the language of the relevant provisions of the VE Act. 29 He said at [18] that, if death is hastened because of the accelerated progress of a disease, where the acceleration itself was caused by a war-caused condition, the death may be attributable to war service (eg Doolette v Repatriation Commission (1990) 21 ALD 489 (Doolette) at 492 per O'Loughlin J). His Honour also recognised that, where a veteran contracts a disease that he was likely to have contracted in any event but, because of war service, the contraction of the disease had been accelerated, it may be possible to conclude that the disease is attributable to war service: see eg Langley v Repatriation Commission (1993) 43 FCR 194 at 204 per Lockhart and Beazley JJ. His Honour, however, regarded the present situation as different. That is because, he said, the ischaemic heart disease did not contribute in any way to the pulmonary embolism that was the cause of the veteran's death. 30 The primary judge also recognised at [19] that multiple medical conditions may cause a particular death, and that, if one of those conditions is war-caused that may be sufficient to establish an entitlement to a person, referring to Hancock at [8] per Selway J. 31 His Honour then continued at [20]-[21]: Certainly, in order to ascertain whether a statement of principles applies, it is necessary to identify the kind of death met by the Veteran. The identification of the kind of death is the critical step in the analysis, but in determining the kind of death, the proof is on the balance of probabilities (see Hancock [2003] FCA 711 at [9]). Clearly enough, the phrase "kind of death met by a person" is concerned with causation. It is not a question about whether the death was slow, fast or otherwise, it asks questions of medical causation about the cause of death in the context of the [VE] Act. The question of the kind of death met by a veteran is a question of medical causation of the death, although that might include contributing or underlying causes in the sense to which I have already referred (see, for example, [Codd]at [31] and [39]). That is to say, if there is a cause that contributes to the ultimate cause of death, then that cause may have some relevance. The factual finding made by the Tribunal in the present case, however, is that, while the ischemic heart disease may have caused the Veteran's death to occur hours or days earlier, it did not in any way contribute to the pulmonary embolism, which was the actual cause of death. [emphasis added] 32 Hence, the appeal was dismissed.

THE CONTENTIONS ON THE APPEAL 33 The only matter argued on the appeal was that the Tribunal erred in law in its application of ss 8, 120A and 196B of the VE Act, when the Tribunal had found that ischaemic heart disease had contributed to the time of death of the veteran but did not constitute a "kind of death" of the veteran for the purpose of s 120A of the VE Act. So expressed, the contention does not highlight the real issue as it implicitly assumes that ischaemic heart disease was a contributing cause to the death of the veteran. 34 It was then argued that the primary judge had also erred in not recognising that error of law, and in focusing on what his Honour identified as the "ultimate" cause of death. 35 The proposition as developed on the appeal was that the Tribunal, having accepted as a fact that the veteran's death would not have occurred when it did but for his ischaemic heart disease, erred in law in not concluding that the "kind of death" which he suffered did not extend beyond death by pulmonary embolism to include ischaemic heart disease. It would then have been necessary for the Tribunal to have considered whether the ischaemic heart disease was war-caused under s 120, including whether there was a relevant Statement of Principles for ischaemic heart disease (as there was) and to have applied it to the circumstances in accordance with ss 120 and 120A of the VE Act. The Tribunal did not take those steps. 36 Accordingly, Mrs Collins argued that the Tribunal erred in law by failing to conclude, upon its findings of fact, that the "kind of death" of the veteran included death by ischaemic heart disease, and so to consider whether it was war-caused. It was submitted that the primary judge had in turn erred in considering that issue by asking whether the ischaemic heart disease contributed to the "ultimate" cause of death, rather than whether it contributed to the veteran's death. 37 Counsel for the Commission confronted that contention head on. She submitted that the question of whether the veteran's death was war-caused was to be tested by reference to s 8(1) of the VE Act, relevantly in terms of s 8(1)(b) whether his death "arose out of, or was attributable to, his service". She then submitted that, although the ischaemic heart disease may have affected the precise timing of his death, it did not follow that the death arose out of, or was attributable to his service. 38 It was acknowledged that there was no authority which directly considered the precise point.

CONSIDERATION 39 As the primary judge observed, there is some difficulty arising from the language of the relevant provisions. 40 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). 41 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. 42 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. 43 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. 44 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. 45 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. 46 In our view, the expression "particular kind of injury, disease or death" in ss 120A and 196B(2) 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. That is apparent from s 196B itself. Section 196B(14) refers to when a factor causing or contributing to "an injury, disease or death" is related to service rendered by a veteran. The specified factors reflect in a general way the matters specified in ss 8 and 9 as to when the injury, disease or death of a veteran is war- caused. So much is clear from the consideration given to that expression by Selway J in Hancock at [9] and by Gordon J in Codd at [31]-[39]. We will not repeat their Honours' reasoning, with which we respectfully agree. There was no submission by the parties to the contrary. 47 Hence, the "kind of death" in terms of ss 120A(2) and (4) is also one which refers to the medical cause or causes of death (see eg per Selway J in Hancock at [8]-[9]; per Gordon J in Codd at [36]-[39]; per Spender, Tamberlin and Kenny JJ in Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]; per Moore, Emmett and Allsop JJ in Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53]-[54]; per Branson J in Brown v Repatriation Commission [2006] FCA 914 at [22]-[33]; and Per Tamberlin J in Repatriation Commission v Towns (2003) 38 AAR 77 at 86-7). The decision about the "kind of death" is also not made by applying ss 120 or 120A or any Statement of Principles under s 196B(2) of the VE Act. It is made independently of them. Once it is made, then for the purpose of deciding whether the "kind of death" is war-caused, in accordance with the Deledio principles, those provisions and any relevant Statement of Principles are to be applied. 48 In Codd, it was concluded that the decision of the Tribunal that the kind of death was "death by road accident" was in error. The Tribunal had not correctly construed ss 120 and 120A of the VE Act. The Tribunal had not asked itself what was the medical cause (or causes) of the death so it had not then correctly considered whether there was any applicable Statement of Principles (as there may have been) and then applied the Deledio principles in deciding whether the death was war-caused. In Hancock also, it was concluded that the Tribunal had wrongly applied ss 120 and 120A in determining the kind of death (see per Selway J at [14]-[16]). Each of those decisions reflects the analysis referred to above, even though the focus in each of them was upon the "kind of death" because the Tribunal itself had focused on that question. 49 Their Honours' focus in each of those decisions was whether the kind of death was war-caused (see eg per Selway J in Hancock at [28] and per Gordon J in Codd at [28]). 50 In the event of a dispute about the "death" or the medical cause or causes of death, the issue is to be decided on the balance of probabilities: Cooke. That decision confirms that resolution of such an issue (if it arises) is anterior to, and unrelated to, whether the death is war-caused. 51 There may be more than one medical cause for a veteran's incapacity or death. Repatriation Commission v Law (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. That was not in issue. That finding did not attract adverse judicial comment. The hypothesis presented by the widow of the veteran was that, as a result of his war service, the veteran had taken up smoking, which had led to the onset of his carcinoma and so to his death. The issue was whether, in terms of s 101 of the Repatriation Act 1920 (Cth), his death had arisen out of or was attributable to his war service. Section 101 was generally to the same effect as s 8(1)(b) of the VE Act and s 47(2) of that Act generally was to the same effect as s 120(1) of the VE Act. That Act was repealed and replaced by the VE Act: see s 3 of the VE Act. For present purposes, it is sufficient to note the similarity between the relevant wording of s 101 referred to and s 8(1)(b) of the VE Act: see also per O'Loughlin J in Doolette at 492, and the absence of any suggestion in the judgment of Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) that there could not be multiple medical causes of death. 52 The High Court upheld the decision of the Full Court of this Court (Bowen CJ, Brennan and Lockhart JJ): Repatriation Commission v Law (1980) 31 ALR 140. Their Honours at 151 said of the expression "attributable to": 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. 53 That passage was adopted, and applied, by O'Loughlin J in Doolette. That case concerned a claim by the widow of a veteran for a pension under the VE Act, following his death. The veteran had died following a myocardial infarction, to which his condition of diabetes mellitus type 2, first diagnosed in 1954, had been a significant contributing factor. The hypothesis put forward to connect the death to the veteran's service was that the veteran's death was war-caused because the diabetes was war-caused, either through stress experienced during war service, or by that stress leading to obesity which in turn produced diabetes, or by that stress aggravating a latent condition of diabetes. The fact that the veteran had suffered stress during his operational service was not in dispute. 54 His Honour said at 492 that: if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service. Although the Tribunal had properly considered that the medical cause of the death included the diabetes, it was satisfied beyond reasonable doubt that no reasonable hypothesis existed connecting the veteran's death to his war service. That conclusion was not shown to have resulted from any error of law on the part of the Tribunal. 55 In the light of those considerations, we return to the question of whether, in considering the cause or causes of death of the veteran, the Tribunal erred in law. 56 The relevant part of its reasons is set out in [25] above. 57 In our view, that passage does not demonstrate any legal error on the part of the Tribunal. It asked what was the medical cause of the veteran's death. It acknowledges in that passage that there may be one or more medical causes contributing to the death of a veteran. It made a finding of fact, on the basis of the medical and other evidence, that the cause of death was pulmonary embolism. There was evidence upon which it could have reached that conclusion. It revealed a massive pulmonary embolism originating from venous thrombosis in the presence of a debilitating neurological disease. 58 The Tribunal did not overlook the evidence that the veteran also suffered from ischaemic heart disease. There was evidence on the one hand that the ischaemic heart disease had "little or no impact" on the veteran's death, and on the other that it probably, or may have (the medical evidence from the doctor concerned is summarised both ways) contributed to his death in the sense that it occurred hours or a few days earlier than would otherwise have been the case, apparently because his heart may have failed as a result of the combination of the pulmonary embolus and the ischaemic heart disease a little earlier than if there were no ischaemic heart disease. 59 The Tribunal's findings on the evidence, as to the significance of the ischaemic heart disease, do not amount to a finding on the balance of probabilities that that disease was one of the medical causes of death of the veteran. It has expressly found that it was not. Its reasons, as indicated by the emphasis it included in the passage quoted above, recognise that that disease may have hastened his death but they do not amount to a finding on the balance of probabilities that it did. 60 If we are wrong in that understanding of the Tribunal's reasons, the point of law argued on behalf of Mrs Collins is acutely raised. The Tribunal, in that event, would have been satisfied that the veteran's death would not have occurred when it did but for his ischaemic heart disease, although its findings indicate that it would have occurred how it did irrespective of that disease. The question of law is 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 ss 8, 13, 120 and 120A of the VE Act, the death (or a medical cause of death) or the kind of death does not include that medical condition. Unless the proposition is so stated, that is unless affecting time of death is to be identified as a death (or a medical cause of death) and a kind of death, there will be no error of law but merely a finding of fact by the Tribunal as to the death and the kind of death. The contention necessarily carries with it the proposition that any particular effect upon the time of death must as a matter of law be a death and a kind of death. 61 On the particular (assumed) findings, the time of death was accelerated by a few hours or days, but the same proposition of law must apply if the time of death is accelerated by a few hours or a few minutes or indeed to any measurable extent by the medical condition. Otherwise, the proposition must incorporate some degree of materiality (or some similar expression) about the effect upon the time of death. If it does, then it could not be said that it was not open to the Tribunal in this matter to have concluded, as it did, that notwithstanding that the death of the veteran was accelerated to some degree by ischaemic heart disease, that was not a medical cause of his death. Counsel for Mrs Collins did not assert that, if some degree of materiality (or some other expression) is to be included in the test, the Tribunal had erred in law in understanding or applying it. 62 The thesis of Hart and Honoré in Causation in the Law (1959), was that an event is causally relevant only if it is a necessary element in a set of conditions that is together sufficient to produce the consequence: T Honoré, "Necessary and Sufficient Conditions in Tort Law" in DG Owen (ed), Philosophical Foundations of Tort Law (Oxford University Press, 2004) at 364. In Bonnington Castings Ltd v Wardlaw [1956] AC 613, the question was posed as to whether the defendant's conduct was a substantial factor in producing the injury. The fact that such a question is really tautological was described by EJ Weinrib in "A Step Forward in Factual Causation"(1975) 38 Modern Law Review 518 at 523 as it may possibly "merely indicate that the inquiry has reached the irreducible minimum, the level below which further analytic excavation is impossible". In any event, the solution is generally (as here) not one of more evidence. It is a problem of definition, and the solution will depend on construction of the relevant provisions. 63 Causation in tort almost always concerns the connection between the loss or damage suffered and the allegedly delictual conduct (or omission). Conventionally, the inquiry in that context is twofold: was the conduct (or omission) a necessary condition of loss or damage (factual causation test); and secondly whether the conduct should attract legal liability in respect of that loss or damage. For the purposes of the VE Act, the latter question, namely the connection between injury, disease and death and war service is governed by ss 8, 120 and if applicable s 120A of the VE Act. 64 However, it may be helpful in considering the present issue to consider how the common law might approach the question of the cause of a death in respect of which a claim for damages is brought, where there is an issue as to the medical cause of that death. It may also be helpful to consider, in a statutory context (such as the various enactments providing for compensation for work-caused or work-related conditions), how the medical cause of death is determined where there is an issue as to the medical cause of the death. 65 There is not likely to be any benefit in looking at claims based on injury or disease, because of necessity, the medical nature of the injury or disease must be determined. Where the issue is whether a tortiously caused particular medical condition has affected only the timing of the onset of a disease, such claims readily lend themselves to resolution: it is only the extent to which, if at all, the condition has accelerated the onset of disability that damages or compensation is awarded: see eg Von Hartmann v Kirk [1961] VR 544; Smith v Leech Brain & Co Ltd [1962] 2 QB 405. The plaintiff in such cases has been put in the same position as would have occurred without the tortious conduct, including where consequences of tortious conduct have been overcome by subsequent events: Jobling v Associated Dairies Ltd [1982] AC 794. An example in a claim for damages under s 82(1) of the Trade Practices Act 1976 (Cth) is provided by Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1. There a claimant had obtained insurance based upon a misleading representation by the insurer that the policy would provide benefits if he became totally disabled from following his occupation as a builder. The insured did become so disabled following an injury, but was not totally disabled from other occupations. In fact, the policy only responded if the insured were totally disabled from any occupation. The insured's claim for damages, equal to the benefits he would have been entitled to if the representation were true, was unsuccessful. He failed to show that, but for the misrepresentation, he could and would have procured a policy which would have given him the benefits anticipated if he became totally disabled from following his occupation as a builder. He also failed to show that there was any difference between the premium paid and the value of the disability clause in the policy, so the claim failed in its entirety. 66 At common law, in cases alleging wrongful death, if the negligent conduct does not contribute to the death or its timing, no damages are recoverable for the negligent conduct. That was the outcome in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. The deceased died of arsenic poisoning. He had reported to a hospital for treatment but, negligently, had been sent home rather than being admitted for treatment. The factual finding was that, had the deceased been admitted to the hospital and properly managed, his death would have occurred as and when it did in any event. 67 Where the negligent conduct has accelerated death, a "materiality" test has been applied. In Kerry v England [1898] AC 742, the deceased died from an illness known as "La Grippe". Shortly before her death she had taken influenza medication negligently labelled by the appellant, but it was found that her death had been accelerated, "but not to any appreciable degree", by that medication. The advice of the Board of the Privy Council contained the following laconic remark at 746: As the jury have found that the death of the [deceased] was not accelerated by the poison to any appreciable extent, it follows as a legal consequence that the damage attributable to the defendants is inappreciable. There was no discussion of the expression "appreciable extent". It was a term introduced by the jury in its answer to the question whether the mistaken taking of the poison caused the death. 68 The formulation was apparently adopted in Von Hartmann v Kirk [1961] VR 544. The widow of a person injured in a car accident sued the other driver for damages under the Wrongs Act 1958 (Vic), on the ground that the other driver's negligence caused the accident and the death of her husband. As a result of the car accident, the deceased suffered various injuries, including a coronary occlusion. The deceased died some two years later from a subsequent coronary occlusion. It was argued that his death from the subsequent coronary occlusion was the natural and probable consequence of the earlier coronary occlusion and so attributable to the negligent driving. 69 Scholl J at 545-6 distinguished two circumstances. Firstly, if the tortious conduct follows on a predisposing condition and death from the predisposing condition is appreciably accelerated in time by the tortious conduct, then the tortious conduct is a cause of death. Secondly, his Honour said that where the tortious conduct causing injury precedes some other (tortiously caused) injury or disease "to which death is directly attributable", then the earlier tortious conduct is a cause of the death only if the subsequent injury or disease is the "natural and probable result" of the tortious conduct. Otherwise, his Honour said, the subsequent injury or death breaks the chain of causation. To support the latter proposition, his Honour relied upon Commonwealth v Butler (1958) 102 CLR 465 (Butler). His Honour then concluded that, on the evidence, the contention connecting the two coronary occlusions could not reasonably be drawn by the jury so that case was withdrawn from the jury. 70 It is not clear that the application of Butler in the process of reasoning in that case is entirely apt, simply because it was a claim by the widow of a deceased employee under the Commonwealth Employees' Compensation Act 1930 (Cth), and involved the construction of the expressions "personal injury by accident arising out of or in the course of" employment in s 9(1) and "where the death of the employee results from the injury" in cl 1(a) of the first schedule to the Act. The deceased died in July 1957 as the result of a coronary occlusion. He had suffered three previous coronary occlusions in 1952 and in 1955 (one of which happened at work). The claim was based upon the coronary occlusion at work in 1955 being personal injury by accident arising out of or in the course of employment (a proposition assumed in the claimant's favour), and secondly that there was a connection between the injury and the death so that the deceased's death resulted from it. Fullagar J said that the effect of the medical evidence, accepted by the decision-maker, was that the deceased had progressive arterial atheroma or sclerosis for a number of years, and then a series of coronary occlusions which each led to damage to the heart muscle. Each occlusion did not mean a subsequent occlusion was more likely, but it did mean that a subsequent occlusion, if one occurred, was more likely to be fatal, but the final occlusion may have been fatal irrespective of the damage to the heart muscle. 71 His Honour concluded at 473 that the evidence "could not be said to establish that any prior occlusion 'contributed to' the death in the sense that the death 'resulted from' it": See also Taylor J at 477 and Windeyer J at 480-1. Dixon CJ and Kitto J agreed with each of the other judgments. 72 The type of issue addressed in Butler is not atypical of the like expressions used in each of the States and Territories in respect of their respective workers' compensation schemes, although there are some differences in the legislative expressions. The Safety Rehabilitation and Compensation Act 1988 (Cth) and the Seafarers Rehabilitation and Compensation Act 1992 (Cth) also have similar expressions. The expressions concerning the relationship of incapacity or death with the claimed compensatable injury or disease are summarised in "Workers Compensation", The Laws of Australia (Law Book Co) at[64]. 73 In Butler, Windeyer J said at 480 of the issue to be addressed: Yet the application of the statute to the facts of this or any other case does not depend upon metaphysical speculation or the actual physiological circumstances accompanying death. It depends upon asking only whether death resulted from the injury (in this case from the occlusion of September, 1955) in the ordinary acceptance of those words. The question obviously involves an idea of causal sequence. But it tends to misconception if the question that the Act postulates, namely "did death result from the occlusion", be inverted to be "was the occlusion the cause of death". The inversion is merely linguistic; yet in its inverted form the question somehow seems more prone to attract to its answer expressions such as "contributing factor", which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses. 74 In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 concerning a statutory cause of action under the Fair Trading Act 1987 (NSW) as well as common law negligence, Gummow, Hayne and Heydon JJ said at [101] that the policy and scope of the cause of action concerned should inform the issue of causation in fact. In Travel Compensation Fund v Tambree t/as R Tambree and Associates (2005) 224 CLR 627, Gummow and Hayne JJ at [45] made the same point, as did Gleeson CJ at [28], albeit reinforcing that it is necessary to formulate principles from policy. See also Kirby J in Roads and Traffic Authority v Royal (2008) 245 ALR 653 at [83]. That approach also accords with the approach of Lord Hoffmann in Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22. 75 In the present circumstances, their Honours' remarks are apposite. The purpose of the VE Act is primarily to provide for the payment of pensions and other benefits to veterans and their dependants. It is beneficial legislation, and progressive amendments to the VE Act have demonstrated an intention to make pensions easier to obtain: see per Aickin J in Law at 652. 76 In an inquiry such as the present, in our view, the particular question is to be resolved by having regard to the purpose and scope of the relevant legislative provisions in their context. It is a matter of statutory construction. To state what is apparently an obvious proposition is not necessarily to advance the answer to the question. There are various theories of statutory construction, each of which appears to have had been used by the High Court from time to time: see Corcoran, "Theories of Statutory Interpretation" in Corcoran and Bottomley (eds) Interpreting Statutes (The Federation Press, 2005) at Ch 2. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 would indicate that the language of the relevant provisions and the scope and object of the VE Act will indicate whether, in the present (assumed) circumstances, the medical cause or causes of the death of the veteran included ischaemic heart disease (see per McHugh, Gummow, Kirby and Hayne JJ at 390-1). 77 It is also important to recognise that construing the relevant provisions of the VE Act may not be usefully informed by reference to examples of constructional approaches in relation to other statutes or in relation to common law causes of action: see per Gummow J in Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-9. 78 As noted above, it is common ground that the reference to "death" in ss 8 and 13 of the VE Act is to the medical cause or causes of death. It is also common ground that the reference to "kind of death" in ss 120A and 196B is also to the medical cause or causes of death. The link between those expressions through ss 120 and 120A is clear. They each ask "a causative question", to use the expression used by Gordon J in Codd at [31], even though that is not express. 79 The purpose for identifying the death, that is the medical cause or causes of the death, of a veteran is to determine the issue as to whether the death is war caused. That is the criterion of eligibility for a pension under s 13(1)(a), or more accurately the criterion for the liability of the Commonwealth to pay a pension. Without identifying the medical cause or causes of the death it is not possible to progress to consideration of whether the death is war-caused. When addressing that question, moreover, because of the facilitated proof of the connection through ss 120 and 120A, it is also necessary to know the medical cause or causes of death to determine how to apply those provisions. In particular, without knowing the kind of death, that also being the medical cause or causes of death, it is not possible to determine whether there is a Statement of Principles to be applied in the application of those provisions. 80 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. 81 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. 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. 83 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. 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. 85 It is desirable to make a few other observations. 86 In Law Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) at 649 said: It was also argued that it was anomalous that a pension should be paid on death when during the lifetime of the member of the Forces the disease was not pensionable. That argument overlooks the fact that if there had been a period of actual incapacity due to that disease prior to death it would have been pensionable. In both cases the assumption is that it arose out of or was attributable to war service. 87 For the reasons given that "anomalous" outcome has not occurred here. If the veteran during his lifetime had claimed a pension for ischaemic heart disease, and been incapacitated as a result of it, he may have established that the disease was war-caused. There would apparently have been no issue about him suffering that disease. His entitlement to a pension for any incapacity caused by it would have depended on that disease being war-caused. To determine that issue, the Deledio principles would have been applied as required by ss 120 and 120A. Even if he was in receipt of a pension under the VE Act at the time of his death for incapacity resulting from ischaemic heart disease, however, that would not automatically entitle Mrs Collins to a pension following the veteran's death. The decision-maker would still have to consider whether the medical cause, or one of the medical causes, of the death of the veteran was ischaemic heart disease, even though the issue as to whether his ischaemic heart disease was war-caused would have been determined. Whether subs 8(1)(b), (e) or (f) is applied, the first and necessary inquiry is to determine whether the veteran died from, or partly from, that disease. 88 We also refer to the paragraphs of the reasons of the primary judge set out at [31] above. The reference to "the ultimate cause of death" may be capable of being misunderstood. We do not consider that the VE Act draws any legal distinction between the ultimate or primary and secondary medical causes of death of a veteran. It requires that the medical cause or causes of death be ascertained. We do not understand his Honour to have been drawing such a distinction, but simply to be recording the finding of the Tribunal in this instance that ischaemic heart disease was not a medical cause of the death of the veteran. The immediately preceding paragraph of his Honour's reasons also set out in [31] above indicates that that was the approach his Honour took. 89 For those reasons, in our judgment the appeal should be dismissed with costs. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield & Stone.

GENERAL DIVISION NSD 2007 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

EDMONDS J: 90 I agree that the appeal must be dismissed. 91 I have had the advantage of reading the reasons of Mansfield and Stone JJ in draft setting out, inter alia, the factual background, the legislative context and a summary of the decisions below, all of which I gratefully adopt. 92 I also generally agree with their Honours' reasons for dismissing the appeal, but would put my reasons more shortly. 93 The critical finding of the Tribunal appears at [22] of its reasons under the heading: "Our Finding as to the Veteran's 'Kind of Death'". The Tribunal said: … we have the evidence of both experts, Dr Butler and Professor O'Rourke, 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 Act, the "kind of death" met by the veteran was "death by pulmonary embolism". 94 In my view, that finding does not involve any error of law on the part of the Tribunal and, indeed, as the primary judge below observed at [17] of his reasons, "…it may be that there is really no question of law raised". I agree. 95 Nevertheless, his Honour, in deference to the submissions that had been put and the complexity of the provisions, made the following observations: It may be that, if death is hastened because of the accelerated progress of a disease, being acceleration caused by a war-caused condition, the death was attributable to war service (see Doolette v Repatriation Commission (1990) 21 ALD 489 at 492). Further, where a veteran contracts a disease that he was likely to have contracted in any event but, because of war service, the contraction of the disease has been accelerated, it may be possible to conclude that the disease is attributable to war service (see Langley v Repatriation Commission (1993) 43 FCR 194 at 204). However, the situation in the present case is different from the circumstances to which I have just referred. In the present case, the ischemic heart disease did not contribute in any way to the pulmonary embolism that was the cause of the Veteran's death. If the ischemic heart disease had been shown to have had some cause or connection with the pulmonary embolism, the position might have been different. However, there was no material before the Tribunal that would support such a contention. It may be that multiple medical conditions cause a particular death. In such a case, it may be necessary that all of those conditions be considered for the purpose of determining whether there is a relevant statement of principles applicable. If one of the multiple medical conditions is a cause of death and that condition was itself caused by war service, then that may be sufficient to establish an entitlement to a pension (see Repatriation Commission v Hancock [2003] FCA 711 at [8]). … The question of the kind of death met by a veteran is a question of medical causation of the death, although that might include contributing or underlying causes in the sense to which I have already referred (see, for example, Repatriation Commission v Codd (2007) 95 ALD 619 at [31] and [39]). That is to say, if there is a cause that contributes to the ultimate cause of death, then that cause may have some relevance. The factual finding made by the Tribunal in the present case, however, is that, while the ischemic heart disease may have caused the Veteran's death to occur hours or days earlier, it did not in any way contribute to the pulmonary embolism, which was the actual cause of death. 96 These observations are not infected with any error, either of law or fact. 97 The appellant's claim that the veteran's ischemic heart disease was war-caused, and that it was among the causes of his death, were not the subject of any findings, one way or the other, by the Tribunal because it found that the cause of his death was pulmonary embolism. 98 Finally, I totally agree with Mansfield and Stone JJ at [88] of their Honours' reasons: "that the VE Act [does not] draw any legal distinction between the ultimate or primary and secondary medical causes of death of a veteran. It requires that the medical cause or causes of death be ascertained." In this regard, I agree with their Honours' observation that the primary judge, at [31] of his reasons, was not drawing any such distinction in his use of the phrase "the ultimate cause of death". 99 The appellant must pay the respondent's costs of the appeal. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 5 August 2009 Counsel for the Appellant: M Vincent

Solicitor for the Respondent: Australian Government Solicitor