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No.5 September 2009

Collins v Repatriation Commission

[2009] FCAFC 90

COURT Federal Court, Adelaide (heard in Sydney)
JUDGE Mansfield, Stone and Edmonds JJ
DECISION The appeal was dismissed
ISSUES Whether Tribunal correctly determined “kind of death” – whether a medical conditions contributes to death of veteran by only affecting its timing

Facts

Mr Collins rendered operational service in the Royal Australia Air Force from January 1943 until January 1946. He died in 2005 and the death certificate recorded the following as "cause of death and duration of last illness":

(1)(a) Pulmonary Embolism, days
(1)(b) Myocardial Infarction (Acute), days
(2) Motor Axonal Neuropathy, years
Hypertension, years

Ms Collins claimed a war widow’s pension. The Repatriation Commission (Commission), refused the claim and the Veterans Review Board (VRB) affirmed that refusal. Ms Collins then applied to the Administrative Appeals Tribunal (Tribunal) who affirmed the decision under review. She then appealed from the Tribunal’s decision to the Federal Court. Justice Emmett dismissed the appeal. Ms Collins then appealed to the Full Federal Court.

Grounds of appeal

It was argued on behalf of Ms Collins that the Tribunal erred in law when it found that ischaemic heart disease had contributed to the time of death of the veteran but did not constitute a “kind of death”. It was then argued that the primary judge had also erred in not recognising that error of law, and in focusing on what his Honour identified as the “ultimate” cause of death. Specifically, by asking whether ischaemic heart disease contributed to the “ultimate” cause of death, rather than whether it contributed to the veterans’ death.

Question of law

The question of law was 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 the kind of death (or medical cause or causes of death) does not include that medical condition.

The Court’s Consideration

Cause of death of the veteran

At the outset, Justices Mansfield and Stone noted that where the word “death” appears in ss 8 and 13 it means the medical cause or causes of death. Hence, the “kind of death” referred to in ss 120A(2) and (4) is also one which refers to the medical cause or causes of death. In addition, their Honours noted that:

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 the resolution of such an issue (if it arises) is anterior to, and unrelated to, whether the death is war caused.

Their Honours then turned their attention to the Tribunal’s decision, particularly the following passage:

[the medical evidence was that] ischaemic heart disease hastened, but was not the cause of, the veteran’s death. What caused his death was the pulmonary embolism, which occurred as a consequence of the motor axonal neuropathy which the veteran had suffered for many years. While the veteran may have died when he did – rather than some hours or days later – because he had ischaemic heart disease, it is not correct to say that the ischaemic heart disease was the cause, or even one of the causes, of his death. The cause of death was the pulmonary embolism. In the language of ss 120 and 120A of the [VE] Act, the "kind of death" met by the veteran was "death by pulmonary embolism.

In Justices Mansfield and Stone’s view, the passage above did not demonstrate any legal error on the part of the Tribunal. It asked what was the medical cause of the veteran’s death. It did not overlook the evidence that the veteran also suffered from ischaemic heart disease. It made a finding of fact, that the cause of death was pulmonary embolism. There was evidence upon which it could have reached that conclusion.  Justice Edmonds, while giving separate reasons, also agreed that the Tribunal’s findings did not involve an error of law.

Issue of time of death

Justices Mansfield and Stone concluded that inquiry about the death or the kind of death for the purposes of the VEA is a question of fact about the medical cause or causes of the death. There is not a legislative intention that any medical condition which hastens the time of death 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. Their Honours said:

…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.

Findings of the primary judge

In relation to the Primary judge’s findings, Justices Mansfield and Stone considered that the reference to "the ultimate cause of death" may be capable of being misunderstood. However, their Honours did not consider the primary judge to have made any distinction between the ultimate or primary and secondary medical causes of death, 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). Justice Edmonds, also agreed that  the primary judge had not drawn any distinction in his use of the phrase “the ultimate cause of death.”

Decision

Mrs Collins’ appeal was dismissed with costs.

Editorial Note

Kind of death

This appeal was argued at the same time as Hill v Repatriation Commission [2009] FCAFC 91. The legal issue in both appeals was, in essence, the same. Consequently, both Hill and Collins, follow the line of reasoning in a number of recent Federal Court cases that the “kind of death” met by a person is the medical cause or causes of death.

The matter of Collins differs slightly from Hill in that the issue in relation to kind of death was focussed upon the time of death. Specifically, whether a medical condition contributes to the death of a veteran if it only affects its timing.  Justice Mansfield and Stone’s conclusion that a medical condition that only affects timing, but does not play a real role in the pathological changes leading to the death, should not be considered a kind of death in terms of the VEA, follows the line of reasoning of the Court in Repatriation Commission v Codd (2007) 95 ALD 619. Specifically, that kind of death is concerned with causation, it is not concerned with how slow, fast or otherwise the death occurred.

For an example of a practical application and further reading on the primary judge’s decision please see VeRBosity Vol 24 No 2, pages 120 – 122.

All Practice Notes