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.