Robertson v Repatriation Commission

The Applicant's Case 18 As indicated in [3] above, the applicant's complaint relates to the Tribunal's use of the expression 'integral part' when approaching the task of determining the kind of death suffered by Mr Robertson. This occurs at [13], [14] and [31] of the Tribunal's Reasons: '13. Where multiple medical conditions contribute to a veteran's death, it is sufficient if one of those conditions is related to service … However, a condition must be more than merely present: it must be an integral part of the kind of death: Hayes v Repatriation Commission [2005] FMCA 125 and see Martyn and Repatriation Commission [2006] AATA 895. 14. … [M]edical evidence may support a finding that underlying or contributing causes not cited in the [death] certificate in fact played an integral part in a person's death: Hill v Repatriation Commission [2009] FCAFC 91 at para 61. … 31. In our view, the weight of evidence supports the conclusion that Mr Robertson's atrial fibrillation did not play an integral part in his death.' 19 The applicant contended that the Tribunal did not explain what it meant and that none of the dictionary definitions of the word 'integral' readily appear applicable to consideration of medical cause of death. 20 The applicant referred to the judgment of the Full Court of this Court in Collins for the following propositions: (1) The medical cause of death is to be ascertained by identifying the medical condition or conditions that account for the pathological changes leading to death: at [82] and [84] per Mansfield and Stone JJ; Edmonds J agreeing: [92]. (2) The Act does not draw any legal distinction between ultimate, primary and secondary causes of death: at [88] per Mansfield and Stone JJ; Edmonds J agreeing: [98]. (3) A contributing cause to death may suffice: at [51] - [53] per Mansfield and Stone JJ; Edmonds J agreeing: [92]. 21 The applicant submitted that by its reliance on Re Martyn and Repatriation Commission [2006] AATA 895 and Hayes v Repatriation Commission [2005] FMCA 125 (see [13] of the Tribunal's Reasons reproduced in [18] above) and the omission of any reference to Collins, the Tribunal demonstrated it intended the term 'integral part' to exclude a medical condition that makes a contribution to a death. 22 The applicant further submitted that the Tribunal's use of a wrong, restrictive test is further demonstrated at [29] - [30] of its Reasons (reproduced at [13] and [14] above), as the Tribunal placed Associate Professor Haber's evidence - supportive of atrial fibrillation as the cause of death - on one side of the equation, and Professor O'Rourke's opinion and the death certificate on the other side of the equation, even though the death certificate listed atrial fibrillation as a contributing cause.

Analysis 23 The respondent submitted that it is not possible to reconcile the applicant's contentions with the plain words of the Tribunal's Reasons. I agree. 24 In the first sentence of [13] the Tribunal expressly acknowledged that multiple medical conditions may contribute to a veteran's death. The Tribunal did not instruct itself that medical conditions that contribute to a death can be excluded from consideration. 25 In the second sentence of [13] the Tribunal drew a distinction between a condition that is 'merely present' and a condition that is 'an integral part of the kind of death'. The meaning is clear: the Tribunal used 'integral part' to describe a condition which is 'more than merely present'; the Tribunal did not use 'integral part' to describe a condition that contributes to death but can nonetheless be disregarded. 26 The ultimate decision that the Tribunal made reflected the distinction that it drew in [13]. It concluded at [31], in effect, that atrial fibrillation was merely present and that other conditions that the veteran suffered were the causes of his death. 27 The Full Court which heard the Collins and Hill v Repatriation Commission (2009) 177 FCR 434 appeals observed that identifying a veteran's kind of death is a question of fact, to be determined by the decision-maker on the evidence: Collins at [57], [82], [84] and [94]; Hill at [65]. It is not a question of law. McInnis FM's comment in Hayes at [25] is to a similar effect; his Honour remarked there that the Tribunal's finding that hypertension was not a' kind of death' was 'based upon evidence which was reasonably open to be accepted'. 28 In the present case, the Tribunal was required to decide, on the balance of probabilities, whether atrial fibrillation was a 'kind of death'. It preferred the evidence of Professor O'Rourke, an appropriately qualified expert. The Professor identified atrial fibrillation as a condition that the veteran was found to have developed in 2002, and still had at the time of his death, but said that it 'appears not to have been a factor in his deterioration and death'. It was reasonably open to the Tribunal to accept the Professor's evidence, and the Tribunal explained its reasons for doing so at [29] of its Reasons. It follows that the appeal in this matter does not raise a question of law.

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