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2009

Repatriation Commission v Hill

[2009] FCA 270

COURT Federal Court, Sydney
JUDGE Cowdroy J
DECISION The appeal was allowed
ISSUES Whether Tribunal correctly determined “kind of death” and whether there was an applicable SoP to the “kind of death”. 

Facts

Mrs Hill’s late husband, Dr Walker, served in the Royal Australian Air Force and rendered operational service from 9 October 1942 to 8 December 1945.  Mrs Hill applied for a widow’s pension. The delegate of the Repatriation Commission (Commission) refused Mrs Hill’s claim on the ground that the death of Dr Walker was not related to his war service. The Veterans Review Board (VRB) affirmed the  Commission’s decision. Mrs Hill sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal set-aside the decision under review and substituted its decision that Dr Walker’s death was war-caused. The Commission appealed from the Tribunal’s decision to the Federal Court.

The Tribunal’s reasoning

In setting aside the decision under review, the Tribunal held that Dr Walker suffered two kinds of death: heart failure and kidney failure. The Tribunal did not consider that either dementia or ischaemic heart disease (IHD) was a “kind of death”. The Tribunal went on to note that there was no SoP for either of the kinds of death it had found. As such, the Tribunal then considered whether there was a reasonable hypothesis connecting the veteran’s death with his service according to the principles outlined in Bushell and Byrne. The Tribunal concluded that a hypothesis was established. That hypothesis was that Dr Walker developed a heavy smoking habit during and in consequence of his service which caused IHD and that IHD was one cause of his death. The Tribunal found that such hypothesis was reasonable and that it was not satisfied beyond a reasonable doubt that any element of the hypothesis had been disproved beyond reasonable doubt.

Grounds of appeal

The Commission made the following submissions:

The Respondent’s position

Counsel for Mrs Hill made the following submissions:

The Court’s Consideration

Question of fact or of law

Justice Cowdroy rejected the Respondent’s contention that the Tribunal’s finding concerning the cause of death of the veteran was a finding only of fact. His Honour considered that the ‘kind of death’ to be determined involves the question whether such words should be given their ordinary meaning or some technical meaning. Accordingly, this question of construction raises a question of law.

Misapplication of the IHD SoP

By having regard to the proximate or ultimate cause of death, Justice Cowdroy considered that the Tribunal had committed an error of law similar to the kind referred to in Repatriation Commission v Codd (2007) 95 ALD 619. His Honour considered that by failing to appreciate the underlying nature of the disease and directing its attention to the consequence of the disease, the Tribunal had failed to direct its attention to the circumstances leading to the ‘kind of death’.

Before the Tribunal, it was contended for Mrs Hill that the veteran’s ‘kind of death’ (heart failure) was caused by IHD.  Justice Cowdroy noted that the Tribunal was required to consider the IHD SoP (in accordance with the SoP prevailing at the date of its decision: see Gorton). Applying the IHD SoP, the critical issue for the Tribunal’s determination was the identification of the cause of the IHD, as itemised in the IHD SoP.

Application of section 120(3)

Justice Cowdroy considered that the Tribunal erred by determining that a reasonable hypothesis existed, pursuant to ss 120(1) and 120(3) of the VEA, linking Dr Walker’s service to his death. His Honour considered that since the IHD SoP existed, it was not open to the Tribunal to attempt to find a reasonable hypothesis otherwise than in accordance with that SoP, as was held by the Full Court in Woodwood at [100]:

Once an [sic] SoP is determined in relation to a particular condition, it covers the field in relation to that condition.

Standard of proof

Justice Cowdroy noted that in assessing what the veteran’s ‘kind of death’ was, the Tribunal was required, by s 120(4) of the VEA, to be satisfied on the balance of probabilities. His Honour went on to comment that given that the Tribunal found that IHD was not a ‘kind of death’, it does not follow that IHD could not have contributed to the veterans’ death. The Tribunal’s finding only established that the contribution had not been sufficient to satisfy the high standard found in s120(4) of the VEA.  While his Honour considered that the Tribunal had misapplied the VEA regarding the ‘kind of death’, it had not subverted the standard of proof prescribed by s 120 of the VEA:

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.

Cause of death of the veteran

As 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, Justice Cowdroy considered that 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. 

His Honour held that the error of law made by the Tribunal, treating the proximate or ultimate cause of death as the ‘kind of death’ instead of having regard to the cause of that failure resulted in the provisions of the GN SoP being circumvented in the same manner as the IHD SoP.

Formal decision

Justice Cowdroy allowed the Commission’s appeal and remitted the matter to be heard by a differently constituted Tribunal. His Honour considered that the Tribunal erred in:

Editorial Note

Kind of death

The matter of Hill follows the line of reasoning in Repatriation Commission v Codd (2007) 95 ALD 619 that the “kind of death” met by a person is the medical cause of death, including the contributing or underlying medical cause of death. 

Recently, in Collins v Repatriation Commission [2008] FCA 1982, the Court also emphasised that ‘kind of death’ is a question of medical causation.  Specifically, the Court held that the issue of whether a disease “hastened” a person’s death will only be a relevant consideration where there is evidence that a particular disease is a cause that contributes to the ultimate cause of death.

The Court in Hill makes it plain that it is an error of law to treat the proximate or ultimate cause of a person’s death as the ‘kind of death’. A decision maker must have regard to the underlying nature and the consequences of the relevant disease. 

The decision in Hill also demonstrates that provided a decision maker correctly interprets the phrase ‘kind of death’, as judicially determined, the risk of misapplication of the SoP scheme will be minimised.

All Practice Notes