FEDERAL COURT OF AUSTRALIA Robertson v Repatriation Commission [2011] FCA 937 Citation: Robertson v Repatriation Commission [2011] FCA 937 Appeal from: Robertson and Repatriation Commission [2011] AATA 80 Parties: CLARA ROBERTSON v REPATRIATION COMMISSION File number: NSD 239 of 2011 Judge: EDMONDS J Date of judgment: 22 August 2011 Catchwords: ADMINISTRATIVE LAW – veteran's entitlements – widow's pension – appeal from decision of Tribunal affirming a decision of the respondent that veteran's death was not 'war-caused' – standard of proof under s 120(4) of the Veterans' Entitlements Act 1986 (Cth) – identification by the Tribunal of the correct test under the Act in determining veteran's 'kind of death' – no error of law, appeal dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Veterans' Entitlements Act 1986 (Cth) ss 13, 120, 120A, 196B Cases cited: Collins v Repatriation Commission (2009) 177 FCR 280 applied Hayes v Repatriation Commission [2005] FMCA 125 cited Hill v Repatriation Commission (2009) 177 FCR 434 applied Re Martyn and Repatriation Commission [2006] AATA 895 cited Repatriation Commission v Smith (1987) 15 FCR 327 applied Date of hearing: 1 June 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Kemp & Co Lawyers Counsel for the Respondent: Miss RM Henderson Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 239 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: CLARA ROBERTSON Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: EDMONDS J DATE OF ORDER: 22 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 239 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: CLARA ROBERTSON Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: EDMONDS J DATE: 22 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This application is an appeal from a decision of the Administrative Appeals Tribunal ('Tribunal') ([2011] AATA 80) in reliance on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act'). 2 The Tribunal affirmed a decision of the respondent refusing the applicant's claim for a widow's pension under the Veterans' Entitlements Act 1986 (Cth) ('Act') in respect of the death of her late husband, Frederick Charles Robertson ('Mr Robertson'). 3 According to the applicant, the question of law raised by the notice of appeal is whether the Tribunal misdirected itself in identifying and/or applying the correct test for determining whether the death of Mr Robertson was a 'war-caused death'; specifically, whether, by using the expression 'integral part' in its Reasons (see [13], [14] and [31]), the Tribunal intended to exclude a medical condition even if it makes a contribution to a death. The applicant submitted that such an intention can be gleaned from a number of matters and that the Tribunal therefore used 'a wrong, restrictive test'. Factual Background 4 Mr Robertson enlisted in the Australian Army on 3 August 1940, and served in Darwin from 9 April 1942 to 17 March 1943. As a result, the whole of his service in the Army (from 1 October 1941 to 19 March 1946) during World War II is 'operational service' for the purposes of the Act: s 6A of the Act. 5 Mr Robertson was admitted to Maitland Hospital on 7 May 2005 and died there on 20 May 2005. The cause of his death and duration of his last illness, according to his death certificate was: I (a) Septicaemia, days (b) Pneumonia, days (c) Cholecystitis, days (d) Cellulitis limb, days II Atrial fibrillation, days/weeks 6 Part I is explained by reference to the Medical Certificate of Cause of Death: 'Part 1 Line (a) Disease or condition directly leading to death Lines (b) to (e) Antecedent Causes (morbid conditions, if any, giving rise to the abovementioned cause, stating the underlying condition last' 7 Part II is explained in the same certificate: 'Part 2 Other significant conditions contributing to the death, but not related to the disease or condition causing it' 8 On 27 October 2006, the applicant claimed a pension on the ground that her husband's death was attributable to war-caused arthritis. Mr Roberson had developed rheumatism and arthritis during service. A delegate of the Commission determined on 27 January 2007 that Mr Robertson's death was not related to service. 9 The applicant's request to the Veterans' Review Board for a review of the delegate's decision was received on 5 March 2007. She contended before the Board that atrial fibrillation contributed to her husband's death, and that the atrial fibrillation was war-caused because service caused him to develop an alcohol habit which in turn caused his atrial fibrillation. The Board affirmed the delegate's decision on 9 July 2008. 10 The applicant applied to the Tribunal for a review on 21 August 2008. On 1 and 2 February 2011 the Tribunal heard evidence from the applicant, Mr Frederick Robertson (the applicant's son), Dr Anthony Dinnen (consultant psychiatrist), Associate Professor Richard Haber (consultant physician), Dr John Roberts (psychiatrist) and Professor Michael O'Rourke (cardiologist). 11 Associate Professor Haber considered that there was 'no evidence in the notes to confirm that [the veteran] had a significant infection, in particular septicaemia'. He characterised the veteran's cholecystitis as 'an incidental ultrasound finding … not contributing significantly to the cause of his death'. 12 Professor O'Rourke attributed the veteran's death to septicaemia, probably affected by cholecystitis, and opined that the veteran's atrial fibrillation, which had first been diagnosed in 2002 'appears not to have been a factor in his deterioration and death'. The Tribunal Decision 13 The Tribunal preferred the evidence of Professor O'Rourke to that of Associate Professor Haber, commenting that: '29. We found Professor O'Rourke particularly thorough and careful in his evidence. He had clearly reviewed and analysed the clinical notes in detail. He has extensive experience in cardiology and could explain the absence of signs considered significant by Dr Haber, and point to others which positively supported the death certificate. For these reasons, we prefer his evidence to that of Dr Haber.' 14 It expressed its conclusion in the following terms: '30. Considering all of the evidence, we have on one hand the death certificate supported by clinical notes with no evidence to suggest they do not properly reflect Mr Robertson's conditions and treatment, and Professor O'Rourke's evidence. On the other hand is the evidence of Dr Haber. 31. In our view, the weight of the evidence supports the conclusion that Mr Robertson's atrial fibrillation did not play an integral part in his death. As there is no evidence before the Tribunal to indicate any condition other than those in the death certificate led to his death, and as it is not contended that any other condition in his death certificate was service-related, it follows that Mrs Robertson's claim must fail.' Legislation 15 Section 13 of the Act imposes a liability on the Commonwealth to pay a pension to a veteran's dependants '[w]here … the death of a veteran was war-caused'. 16 Since 1994, the expression 'kind of death' has appeared in the Act (see s 120A and s 196B); it refers to 'the medical cause or causes of death': Collins v Repatriation Commission (2009) 177 FCR 280 at [47] per Mansfield and Stone JJ; Edmonds J agreeing: [92]. 17 Section 120 prescribes the standard of proof that is to be applied when making various determinations under the Act. When determining a veteran's 'kind of death' the relevant standard is that prescribed by s 120(4), namely, 'reasonable satisfaction' – the civil standard: Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J; Northrop and Spender JJ agreeing. 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. Conclusion 29 Appeals to this Court under s 44 of the AAT Act are confined to questions of law. 30 It follows that this appeal must be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 22 August 2011