Repatriation Commission v Codd

THE LEGISLATIVE FRAMEWORK 9 Section 13(1) of the VE Act renders the Commonwealth liable to pay a pension to the dependents of a veteran whose death was war-caused. Section 8(1) of the VE Act sets out the circumstances in which a veteran's death is taken to be war-caused. They include if: "(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; …" (Emphasis added.) 10 The standard of proof to be applied in determining whether a veteran's death was war-caused is prescribed by ss 120(1) and (3) of the VE Act. Section 120 of the VE Act relevantly provides: "(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine … that the death of the veteran was war‑caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) or (2) … 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: … (c) that the death was war-caused or defence-caused; … 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 …death with the circumstances of the particular service rendered by the person." 11 The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's death with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) - namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's death with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. 12 As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41]. 13 Section 120(3) "is affected by s 120A" and, according to s 120A(1), applies to a claim under Part II of the VE Act made on or after 1 June 1994 that relates to operational service rendered by a veteran: ss 120A(1)(a), 120A(3) and 120A(4). Mrs Codd's claim was such a claim. 14 Section 120A was introduced by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). The intent behind the introduction of s 120A (and s 196B) of the VE Act was explained in the Explanatory Memorandum to the Bill, an extract of which was set out by the Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473 at 489, [90]. 15 Sections 120A(3) and (4) of the VE Act provide: "(3) For the purposes of subsection 120(3), a hypothesis connecting … 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." 16 Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting 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 SoP or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 17 It is the function of the Repatriation Medical Authority ("the RMA") to determine SoPs for the purposes of the VE Act: s 196B(1) of the VE Act. Section 196B(2) of the VE Act provides that if the RMA is of the view that there is "sound medical-scientific evidence" that indicates a particular kind of injury, disease or death can be related, inter alia, to operational service then it is for the RMA to determine a SoP in respect of that kind of injury, disease or death setting out the factors that must exist as a minimum and which of those factors must be related to service by the veteran before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. The phrase "sound medical-scientific evidence" is defined in s 5AB of the VE Act. 18 Section 120A(4) of the VE Act qualifies s 120A(3). It relevantly provides that s 120A(3) does not apply in respect of an injury, disease or death if the RMA has not determined a SoP under s 196B(2) nor declared that it does not propose to make such a SoP in respect of the kind of injury suffered by the veteran, the kind of disease contracted by the veteran or the kind of death met by the person. 19 The method by which ss 120(1), 120(3) and 120A(3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. The Full Court set out the course which the Tribunal is to take in a case such as the present in the following terms: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 20 However, the Deledio methodology is subject to at least three important qualifications. First, the methodology is not to be applied mechanistically or to operate in substitution for the requirements of the VE Act: Hill v Repatriation Commission (2005) 218 ALR 251 at [35] and [85]; Hardman v Repatriation Commission [2005] FCAFC 83 at [32] and Dunlop v Repatriation Commission [2003] FCAFC 201 at [33]. 21 Secondly, as was pointed out by the Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473 at 483 at [55], the observation at step 2 of the Deledio analysis that if no SoP is in force the application must fail, must be qualified by reference to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances. 22 Thirdly, as Selway J said in Repatriation Commission v Hancock (2003) 37 AAR 383 at [11], there are at least two additional steps before step one in the Deledio analysis. The steps were described by Selway J in Hancock as being: "First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out… Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. If one or more SoP were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"…" 23 In the present matter then, it was necessary: (1) to establish the pre-conditions for the claim other than causation on the balance of probabilities. (For example, in the present case, it was necessary for Mrs Codd to show that her husband was a veteran; that Mr Codd had died and that Mrs Codd was a widow. None of these pre-conditions was in dispute here); and (2) in order to ascertain whether a SoP applies, to determine on the balance of probabilities the "kind of death" suffered by the veteran: s 120A(2) and (4) of the VE Act. 24 It is the second of these additional steps which is the subject of this appeal. It will be necessary to return to consider the phrase "kind of death met by the [veteran]" in s 120A(4) of the VE Act.

THE TRIBUNAL'S DECISION 25 The Tribunal decided that the death of the veteran was war-caused. The hypothesis of connection between the veteran's death and his operational service was articulated by Dr Epstein in the following terms: "[The veteran's] drinking habits were probably war caused and there is a reasonable hypothesis pointing to the effects of alcohol impairing his concentration and contributing to the collision." 26 The hypothesis was summarised "as the late veteran developing a service related alcohol habit the effects of which impaired his concentration and contributed to the fatal collision." It was that hypothesis the Tribunal accepted as a reasonable hypothesis connecting the veteran's death with the circumstances of his war-service. 27 The Tribunal declared that the "kind of death" met by the veteran was death by road accident. The Commission contends that on a proper construction of ss 120 and 120A of the VE Act, the Tribunal's finding that the kind of death met by the veteran was "death by road accident" was not open to the Tribunal. 28 As a result of the Tribunal's declaration of the "kind of death" as death by road accident, the Tribunal: (1) found that there was no SoP which applied to that kind of death and proceeded on the basis that the application was to be determined by the law prevailing before the introduction of the regime of SoPs; and (2) not being satisfied beyond reasonable doubt that there were sufficient grounds to determine that the death was not war-caused, set aside the decision under review and decided that the death was war-caused.

QUESTIONS OF LAW 29 The Commission contends that the Tribunal's reasons for decision contain two errors of law and therefore, on appeal, raise two questions of law: (1) the proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase "kind of death" in s 120A(4) of the VE Act; (2) even if the Tribunal had properly construed ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase "kind of death" in s 120A(4) of the VE Act in finding that the kind of death met by the veteran was "death by road accident", whether the Tribunal erred in failing to determine the application of pension by applying the reasoning of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 which was endorsed by the Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144 at [20]. (I will describe this as the "McKenna principle"). 30 The respondent contended that the Tribunal's finding of the "kind of death" as death by road accident was a finding of fact which was 'unimpeachable'. That submission should be rejected. For the reasons that follow, it is apparent that in making that finding, the Tribunal erred in the proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase "kind of death" in s 120A(4) of the VE Act. That is an error of law: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 394-5.

(1) Proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase "kind of death" in s 120A(4) of the VE Act 31 The phrase "kind of death met by the person" in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks "questions of medical causation" about the cause of death and does so in a particular context - the VE Act and, in particular, Part VIII of the VE Act: see also Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii. 32 The notion of "causing" has been said to be one of common sense: Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1999] 2 AC 22 at 29 (per Lord Hoffman). But whatever may be conveyed by the reference to "common sense", answers to questions of causation will differ according to the purpose for which the question is asked: Travel Compensation Fund v Tambree (2005) 224 CLR 627 at [45]; Allianz Australia Insurance Limited v GSF Australia Pty Ltd (2005) 221 CLR 568 at [96]-[97]; Chappel v Hart (1998) 195 CLR 232 at [63]-[64] (per Gummow J) and at [122] (per Hayne J). 33 The answer to the question of causation posed by s 120A(4) of the VE Act (the "kind of death met by the person") requires identification and examination of the purpose for which the question is being asked. The purpose or reason for asking the question is not at large. The nature and scope of the purpose for asking the question is to be found in the VE Act. Under Part VIII of the VE Act, the nature and scope of the purpose or, to put the matter another way, the purpose for which the question in s 120A(4) is being asked, is to be found in s 120A(3) of the VE Act. Since s 120A(4) qualifies s 120A(3) of the VE Act, one identifies the nature and purpose of the causal question in s 120A(4) (the "kind of death met by the person") by reference to the matters identified in s 120A(3) - a hypothesis connecting a veteran's death with the circumstances of that veteran's service. 34 Putting the same point another way, s 120A(3) regulates the causation enquiry. Subsection 120A(4) qualifies a particular application of that causation enquiry. Therefore, s 120A(4) is to be construed in a way that gives effect to the evident statutory objective of the Part and, in particular, s 120A(3). 35 What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service. 36 The "kind of death met by the [veteran]" that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that the death was war-caused and that the cause, or at least one of the causes of death, was the veteran's "service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal collision". 37 Section 196B of the VE Act and the SoP the subject of this proceeding provide further support for the view that the "kind of death met by the [veteran]" that is to be identified presents a question about medical causation - that the kind of death is a medical cause of death. Sections 120A and 196B were inserted into the VE Act to address questions of medical causation: see also Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii. Section 120A(3) requires that a claim for pension be measured against a SoP. Moreover, a SoP is not determined unless the RMA is of the view that there is "sound medical-scientific evidence" that indicates that a particular injury, disease or death can be related to inter alia war service. If such a determination is made by the RMA, the SoP sets out the factors that must as a minimum exist and which of those factors must be related to service by the veteran before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. The phrase "sound medical-scientific evidence" in relation to a particular kind of injury, disease or death is defined in s 5AB of the VE Act by reference to, inter alia, published medical or scientific publications that have been subjected to peer review process. All of these matters point to the conclusions earlier expressed. 38 Finally, the SoP which is the subject of this appeal is itself directed to questions of medical causation. To take just one example, cl 8 of the SoP defines "death from alcohol dependence or alcohol abuse" to include "death from a terminal event or condition that was contributed by the person's alcohol dependence or alcohol abuse". The phrase "terminal event" is defined to mean "the proximate or ultimate cause of death and includes …(e) cessation of brain function". 39 On the proper construction of the VE Act, consistent with its evident statutory purpose and existing authority, the "kind of death met by the [veteran]" that is to be considered is the question of medical causation or the kind of death, being a medical cause of death, including the contributing or underlying medical cause of death. 40 In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse. 41 The respondent submitted that the expression "kind of death" was "concerned with the way in which a veteran met his or her death". That submission should be rejected for a number of reasons. First, for the reasons already given, to read the expression in the way suggested by the respondent would be contrary to the scheme of the VE Act and its evident purpose and would be contrary to existing authority. Secondly, the suggested construction of the expression conflates several distinct inquiries including the inquiry about the "way in which" a veteran met his death (as to time or place) and the inquiry about the medical cause of this death. If such an approach were adopted it would circumvent the scheme of the VE Act and in particular, the SoPs determined by the RMA under s 196B of the VE Act. As the Commission submitted, on the respondent's approach, death by suicide could be characterised as death by the means employed, the place where the death occurred or by the time of day when the death occurred. Such a characterisation, if adopted, would permit a veteran to circumvent any SoP which did not uphold the claimant's hypothesis seeking to link the death with war-service. Such an approach should be rejected. 42 Despite the respondent's submissions to the contrary, the decision of Tamberlin J in Repatriation Commission v Towns (2003) 38 AAR 77 does not assist the respondent's case. The decision must be understood having regard to the matters that were in issue in the case. In Towns, there was consensus that there was no relevant SoP and so it was unnecessary to make any analysis of the kind of death met by the veteran: at [28]. It would be wrong, then, to take what was said in that case as supporting or establishing the general proposition that the expression "kind of death" was not concerned with medical causation where the medical cause or causes can be identified. Likewise, the decision of Branson J in Brown v Repatriation Commission [2006] FCA 914 makes plain that the decision in that case was not the occasion to provide general and definitive guidance about the meaning of the expression. 43 It is sufficient, in the present case to say that, for the reasons stated, I consider the Tribunal failed to properly construe ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase "kind of death" in s 120A(4) of the VE Act. The Tribunal did not ask the correct question. That was an error of law.

(2) Failure to apply McKenna principle 44 Even if I am wrong in my view of the proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase "kind of death" in s 120A(4) of the VE Act, it is common ground that the Tribunal proceeded to consider the application for pension contrary to the decision of the Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144 at [20]. 45 In McKenna, the Commission had determined that ischaemic heart disease and atherosclerotic peripheral vascular disease suffered by Mr McKenna were each a war-caused disease within the VE Act. The effect of the decision of Goldberg J at first instance was to reach a contrary conclusion. Goldberg J said (28 AAR 7 at 15): "For the purposes of s 120A(3) of the [VE] Act the hypothesis which has to be upheld by a [SoP] is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a [SoP] and, if need be, by more than one [SofP]. In the instant case the relevant links are: [diseases listed] When the hypothesis is identified this way it is then necessary, consistently with the course identified by the Full Court in Repatriation Commission v Deledio, to ask and answer the question in accordance with s 120A(3)(a) of the Act - is there in force a SoP that upholds the hypothesis, that is to say the hypothesis connecting each of the diseases contracted by the respondent with the circumstances of his operational service? It is therefore necessary to identify whether there is in force a [SoP] which upholds the whole, and not just part, of this hypothesis..". 46 The Full Court endorsed the approach of Goldberg J and said at [20]: "Since the Authority had determined [SoP] in respect of the kinds of diseases suffered by Mr McKenna (s 120A(4)(b)), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant [SoP]. In our view, for either of the hypotheses to be upheld by a [SoP], as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts." (Emphasis added.) 47 In the present case, the Tribunal was bound to apply the McKenna principle. It explicitly rejected that approach. That was an error of law. On any view, one of the sub-hypotheses was that the effects of the veteran's "service related alcohol habit … [had] impaired his concentration and contributed to the fatal collision". As the Tribunal failed to ask the question about the alcohol related sub-hypothesis, it failed to consider whether there was a SoP which upheld that sub-hypothesis. 48 Mr Green SC, counsel for the respondent, contended that even if the Tribunal had applied the McKenna principle to the SoP, it would have reached the same conclusion on the basis that there was no SoP which covered the hypothesis (and one assumes the sub-hypothesis) that the veteran was a heavy drinker. In particular, Mr Green relied upon the following findings of the Tribunal: "Contrary to submissions of the Respondent, there is evidence of the deceased being drunk on the evening prior to his death and hung over on the following morning… Whilst I am satisfied that on the evening prior to the fatal collision the deceased - having regard to the evidence of Mrs Codd - had been drinking heavily - I am satisfied that he metabolised the alcohol during the period between arriving at home at approximately 10.30pm and the collision at approximately 7.30am. In those circumstances any alcohol residue at the time of the collision would have been so minuscule to safely permit a finding that at the time of the collision the deceased was not under the influence of alcohol." 49 Mr Green's submission that there is no SoP relevant to the veteran's alcohol habit because there is a difference between 'a heavy drinker' and a person who suffered from 'alcohol abuse' or 'alcohol dependence' as defined in the SoP should be rejected on at least two bases. First, it is well established that a SoP covers the field: see Woodward v Repatriation Commission (2003) 131 FCR 473 at [100] and the Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) which provided that the RMA will prepare SoPs based on "sound medical-scientific evidence" that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service. 50 Secondly, the threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's death with the circumstances of his service. This branch of the respondent's argument seeks to rely on only part of the material before the Tribunal. 51 The evidence before the Tribunal was that the diagnosis of Dr Epstein was that the veteran was a 'chronic alcoholic'. Dr Epstein's criteria for an alcoholic was "a person whose drinking interfered with their health, with the family life and their working capacity". Dr Epstein's evidence was that there was "certainly no doubt that [the alcohol habit] interfered with his family life". That view was consistent with the respondent's own evidence to the Tribunal that there was disharmony in the marriage because of the veteran's alcohol consumption. Having regard to diagnostic criteria A(1) and (4) for alcohol abuse in the SoP for alcohol abuse or alcohol dependence, the whole of the material before the decision-maker would appear to suggest that at least some of the diagnostic criteria were satisfied. That however is a question of fact for the Tribunal.

CONCLUSION 52 For the reasons set out above, the appeal should be allowed and the decision of the Administrative Appeals Tribunal made on 24 October 2006 must be set aside. The matter will be remitted to the Administrative Appeals Tribunal to be heard and determined according to law by a differently constituted Tribunal. 53 The applicant did not seek an order that the respondent pay the applicant's costs. There will be no order as to costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon .

Counsel for the Applicant: Mr P Hanks QC with Ms J MacDonnell

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr N Green QC with Ms J Bornstein