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No. 6 September 2009

Hill v Repatriation Commission

[2009] FCAFC 91

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”

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 grounds 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. Justice Cowdroy allowed the Commission’s appeal and remitted the matter to be heard by a differently constituted Tribunal. Mrs Hill appealed against this decision, and in effect, sought to re-instate the Tribunal’s decision.

Grounds of appeal

It was argued on behalf of Mrs Hill that the primary judge erred in interpreting ss 5D and 120A of the VEA by concluding that neither "heart failure" nor "kidney failure" was capable of constituting a "kind of death". Specifically, the primary judge had failed to consider the definition of "disease" in s 5D of the VEA and had erroneously drawn a distinction between the terms "condition" and "disease". Counsel for Mrs Hill argued that the definition of "disease" in s5D of the VEA indicates that the "condition" which leads to the death of a veteran may be determined as the medical cause of death. As such, Dr Walker’s “conditions” of renal failure and heart failure were each kinds of death.

The Court’s Consideration

Cause of death of the veteran

Their Honours noted that the Tribunal was required to make a finding about the medical cause or causes of the death of the veteran. This was a question of fact for the Tribunal on the balance of probabilities.

In respect of the death certificate, their Honours noted that it was not, itself, determinative of the cause or causes of the veterans’ death. It was a part of the evidence, that included extensive expert evidence, on which the medical cause or causes of the veterans’ death was to be determined.

Their Honours considered that the primary judge correctly held that the Tribunal erred in law by concluding that Dr Walker’s death was caused by heart failure. Specifically, their Honours noted:

The Tribunal erred in law because it failed to determine why the veteran’s heart gave up and why his renal function ceased. It failed to identify the cause or causes of his death. It recognised the issue between the two specialists as to the extent to which, if at all, ischaemic heart disease (in context, also the damage caused by the myocardial infarct which the ischaemic heart disease caused) contributed to the veteran’s heart failing. For the purposes of ss 8, 120 and 120A, in our view, it was required to determined whether, on the balance of probabilities, ischaemic heart disease was a cause of the veteran’s death.

... By focusing erroneously on the cause of death only in a general way, by looking at the medical processes leading to the veteran’s death and not to the medical cause or causes of the death, the Tribunal in effect found that a particular kind of death, namely death from ischaemic heart disease, was war-caused (in accordance with the reverse onus of proof prescribed by s 120(1) and (3)) even though it had rejected the claim that ischaemic heart disease was a cause of, or a particular kind of, death. It also, by its error, failed to apply the IHD SoP to determine if the death was war-caused in accordance with ss 120 and 120A (assuming it had found ischaemic heart disease to have been a medical cause of death).

The definition of "disease"

In respect of Mrs Hill’s argument concerning the definition of "disease", their Honours considered that the provision recognises that a “medical condition” is one which is to be identified at a proper level of specificity and to be capable of diagnosis and management. Similarly, their Honours considered that the definition of "disease" also contemplates that a morbid condition requires the identification of the particular medical condition, based upon medical diagnosis, not a description only in a general way.

Decision

Mrs Hill’s appeal was dismissed.

Editorial Note

Kind of death

The matter of Hill follows 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, including thecontributing or underlying medical cause of death.1 It is a question of medical causation.2

The Full Court’s decision emphasises the importance of a decision maker making a finding as to the medical cause or causes of death, and the synchronicity between that finding and the finding as to whether the death was war-caused. That is because, once the cause of death is determined, that finding will inform the question whether there is an SoP applicable to that particular kind of death. That in turn indicates how the question of whether the death is war-caused is addressed in accordance with the method set out in Deledio.

The definition of "disease"

The comments of their Honours in Hill regarding the “definition of disease” are consistent with Parliament’s intent, when the definition of a disease was amended in 1991. The Explanatory Memorandum to the Veterans’ Affairs Legislation Amendment Bill 1991 said:

“…The amended definition is intended to prevent conditions which are not medically defined as a disease being regarded as such for the purposes of the Act.”

The 1991 amendment followed a decision of the Tribunal where an applicant had claimed hypertension, and the Tribunal had found that the applicant had a “disease” even though medical specialists agreed that he was not suffering from hypertension but rather “borderline” or “pre hypertension”.


1 Repatriation Commission v Codd (2007) 95 ALD 619
2 Collins v Repatriation Commission [2008] FCA 1982

 

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