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Robertson v Repatriation Commission

[2011] FCA 937

COURT Federal Court, Sydney
JUDGE Edmonds J
DATE OF DECISION 22 August 2011
DECISION Appeal dismissed and appellant to pay costs
ISSUES Whether Tribunal identified the correct test under the Act in determining veteran’s ‘kind of death’

Facts

On 27 October 2006, Mrs Robertson claimed a pension on the ground that her husband’s death was attributable to war caused arthritis. A delegate of the Commission decided on 27 January 2007 that Mr Robertson’s death was not related to service. The Veterans’ Review Board affirmed this decision on 9 July 2008. On 21 August 2008 the applicant appealed to the Tribunal. The Tribunal found that the weight of the evidence supported the conclusion that Mr Robertson’s atrial fibrillation did not play an integral part in his death. As there was no evidence before the Tribunal to indicate any condition other than those in the death certificate led to his death, and as it was not contended that any other condition in his death certificate was service related , the tribunal affirmed the decision under review.

Mrs Robertson then appealed to the Federal Court.                                                                     

Grounds of appeal

The Applicant’s complaint related to the Tribunal’s use of the expression ‘ integral part’ when approaching the task of determining the kind of death suffered by Mr Robertson.

The Applicant contended 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 the medical cause of death.

The Applicant submitted that by the Tribunal’s reliance on Re Martyn and Repatriation Commission and Hayes v Repatriation Commission 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 death.

The Applicant further submitted that the Tribunal’s use of a wrong, restrictive test is further demonstrated 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.

The Court’s Consideration

The Court agreed with the respondent’s submission that the applicant’s contentions did not reconcile with the plain words of the Tribunal’s reasons.

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.

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.

The ultimate decision the Tribunal made reflected the distinction that it drew, that atrial fibrillation was merely present and that other conditions that the veteran suffered were the causes of his death.

The Full Court which heard Collins and Hill v Repatriation Commission observed that identifying a veteran’s kind of death is a question of fact, to be determined by the decision maker on the evidence.

In the present case the Tribunal was required to decide on the balance of probabilities whether atrial fibrillation was  kind of death. It preferred the evidence of Professor O’Rourke. It was reasonably open to the Tribunal to accept the Professor’s evidence and the Tribunal explained its reasons for doing so.

The appeal in this matter does not raise a question of law.

Formal decision

appeal was dismissed.

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