Repatriation Commission v Hill

Repatriation Commission v Hill - [2009] FCA 270 - FCA 2009 case summary — Zoe

[20]

THE TRIBUNAL'S DECISION 22 The Tribunal, in setting aside the decision of the Veterans' Review Board dated 13 April 2006, found that the veteran's death was 'war-caused' as defined in s 8(1) of the VE Act. 23 The Tribunal considered the 'particular kind of…death' (see s 196B(2)) suffered by the veteran as referred to in s 120A(2) of the VE Act. It referred to the medical evidence, which was not in dispute, that the veteran developed acute focal necrotising glomerulonephritis, a kidney disease, in 1993 and almost simultaneously developed hypertension in consequence of such condition. In February 1996 the veteran's renal function was mildly impaired and in November 2000 there was moderate renal dysfunction which deteriorated markedly in 2002. The veteran also suffered a myocardial infarct in 1999. An angiogram revealed triple vessel disease necessitating coronary artery bypass surgery. The veteran suffered cardiac failure in June 2002 associated with a chest infection and deterioration of renal function. The veteran encountered difficulties with his memory from approximately 2000 and by August 2002 he was diagnosed as suffering from a type of Alzheimer's dementia. 24 Professor O'Rourke, a cardiologist, attributed the veteran's heart failure at the time of death to glomerulonephritis which caused the veteran's hypertension and renal failure and maintained that there was no evidence of IHD being a factor in his death. Professor O'Rourke believed that following the veteran's successful by-pass surgery in 1999 the veteran had made a complete recovery from IHD. 25 Dr Butler, a consultant physician, opined that the effects of the previous myocardial infarct had contributed to heart failure and that there was a likelihood of approximately twenty per cent that the veteran had IHD at the time of his death. 26 The Tribunal made the following finding (at [39]): On the evidence, including that of Professor O'Rourke and Dr Butler, we find that there were two kinds of death: heart failure and kidney failure. We do not consider that either dementia or IHD was a "kind of death". There is no SoP for either of the kinds of death we have found.

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SUBMISSIONS 34 The Commission submits that the Tribunal was required, when characterising the 'kind of death' met by the veteran, to have regard to the characterisation of such death as provided by the IHD SoP. The veteran must have met a death with which that SoP is concerned in order to link such death with his war service: see Lees v Repatriation Commission (2002) 125 FCR 331 at [16]. 35 The Commission submits that the Tribunal erred in its finding that the 'kind of death' sustained by the veteran was heart failure and kidney failure, and that such finding conflates the medical cause of death with the actual death of the veteran. The Commission referred to paragraph 8 of SoP No. 89 of 2007 which defines 'death from [IHD]'to include'death from a terminal event or condition that was contributed to by the person's [IHD]'. As mentioned earlier, this was not the applicable SoP, however, the relevant wording is identical to the SoP that was in force. 'Terminal event' is defined in the IHD SoP and includes cardiac arrest. The Commission contends that the Tribunal's finding did not consider the cause of heart failure or kidney failure. Instead the Tribunal wrongly made its finding on the 'kind of death' based upon the proximate cause or terminal event. 36 The Commission also submits that given that the Tribunal found that IHD was not a 'kind of death', it follows that the Tribunal must, as a consequence of that decision, have not been satisfied, on the balance of probabilities, that IHD had contributed to the veteran's death. That is, the Tribunal's hypothesis connecting the veteran's death to his service was erroneous because it was premised on IHD contributing to the veteran's death. 37 Further, by the finding that IHD was not a cause of death of the veteran, but that glomerulonephritis was such cause, the Commission submits that the Tribunal should have concluded that the GN SoP was applicable. However, the application of the GN SoP would not have assisted the respondent because the GN SoP did not include cigarette smoking as a cause of glomerulonephritis. 38 The respondent submits that the determination of the 'kind of death' was a question of medical causation and as such comprised a factual finding which could not be the subject of an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'); that the factual finding was open to the Tribunal since there was evidence that heart failure occurred; and that heart failure was a cause of the veteran's death. 39 The respondent also submits that there is no SoP applicable where heart failure 'constituted a kind of death'. The respondent submits that the correct interpretation of a 'terminal event or condition' as contained in the IHD SoP comprises the 'terminal event or terminal condition.' Any finding that the veteran's heart failure was the 'proximate' or 'ultimate' cause of death or that the IHD was the 'underlying' or 'contributing' 'medical cause of death' was a factual consideration made on the medical evidence before the Tribunal. 40 The respondent submits that if the Tribunal made a factual finding to the effect that the heart failure sustained by the veteran was the proximate or ultimate cause of death, and was therefore a terminal event or terminal condition as defined in the IHD SoP, the SoP would have been applicable to the 'kind of death' sustained by the veteran. 41 The respondent submits that no party made any submission to the Tribunal that a 'kind of death' of the veteran was mesangial IgA glomerulonephritis and that no party referred to the GN SoP.

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62 Given that the Tribunal found that IHD was not a 'kind of death', it must be assumed that the Tribunal was not satisfied on the balance of probabilities that IHD was the 'kind of death' met by the veteran. However, failure to satisfy a balance of probabilities test does not lead to the conclusion that IHD cannot have had any contribution whatsoever to the veteran's death. That is, it does not follow that such conclusion has the consequence that IHD could not have contributed to the veteran's death, as the Commission has submitted. The Tribunal's finding only establishes that the contribution has not been sufficient to satisfy the high standard found in s 120(4) of the VE Act. 63 In finding that the veteran's 'kind of death' was heart failure (erroneously, as has been discussed) the Tribunal found that the possibility of IHD contributing to the veteran's death was sufficient to find that it was a cause of the veteran's 'kind of death' and thus ground a reasonable hypothesis under ss 120(1) and 120(3) of the VE Act. While based on a misapplication of the VE Act regarding the 'kind of death', from the Tribunal's perspective it was logical (though again, erroneous) for it to consider the IHD SoP as providing a grounding for a reasonable hypothesis, namely that cigarette smoking caused the veteran's IHD which in turn was a cause of heart failure. The Tribunal has not 'subverted the standard of proof prescribed by s 120 of the VE Act'. 64 It is understandable that the Commission wishes to prevent the Tribunal using the methodology it adopted in the proceedings before it to subvert the purpose of the SoP scheme. However, the mischief in this instance arose not because the Tribunal subverted the correct standard of proof, but rather because the Tribunal reached an incorrect answer to the 'kind of death' involved. Provided that the Tribunal correctly interprets the phrase 'kind of death', such that it accords with the meaning of that phrase as judicially determined, the risk of the misapplication of the SoP scheme will be minimised.

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69 The Tribunal found that IHD was not a 'kind of death' on its apparent acceptance of the evidence that glomerulonephritis caused the veteran's hypertension and renal failure. Following such conclusion, the Tribunal should have asked itself whether glomerulonephritis was a 'kind of death' in respect of which a SoP existed. 70 Having established that the GN SoP had been made, it would have been necessary for the respondent to satisfy the Tribunal that any claim in respect of death by glomerulonephritis was caused by a disease referred to in the SoP, which resulted in renal failure. That is, the Tribunal should have then asked itself whether the hypothesis of a connection between the veteran's death and his operational service was upheld by the GN SoP. 71 The Tribunal overlooked inquiring whether a SoP for glomerulonephritis existed, resulting in the Tribunal's failure to apply the GN SoP template, as was required by s 120A(3) of the VE Act. Further, the finding of the Tribunal that the veteran died of kidney failure erroneously conflated a 'terminal event or condition' with the underlying cause of the veteran's death. Such misinterpretation caused the Tribunal to make an error of law by treating the veteran's kidney failure (the proximate or ultimate cause of death) as a 'kind of death' instead of having regard to the cause of that failure. 72 As such, the provisions of the GN SoP were circumvented in the same manner as the IHD SoP was circumvented. 73 The Commission submits that no new hypothesis can be formulated to connect the veteran's death to his operational service through his glomerulonephritis and claimed 'war-caused' smoking habit since smoking is not a cause of glomerulonephritis recognised by the GN SoP. The Commission refers to the fact that the veteran's nephrologist, Dr Johnson, rejected smoking as a cause of the veteran's glomerulonephritis and renal failure. The Commission therefore submits that it would be futile to remit the matter to the Tribunal. 74 The GN SoP identifies several causes of such disease, but cigarette smoking is not included as a cause of glomerulonephritis for the purpose of the SoP hypothesis. Accordingly, it is arguable that the respondent's claim could not have succeeded because there was no reasonable hypothesis prescribed by the SoP, and therefore as a matter of law, linking the veteran's smoking to his renal condition. Such question however was not the subject of any submissions to the Tribunal and the Court will decline to exercise its power under s 44(7) of the AAT Act to determine that the veteran's death was not 'war-caused'.

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