Austen and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 923

Austen and Repatriation Commission (Veterans’ entitlements) [2016] AATA 923 (18 November 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2015/2724

Re

Patricia Austen

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 18 November 2016

Place Sydney
The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member J F Toohey
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim by widow – whether veteran’s death related to service – kind of death – whether ischaemic heart disease was veteran’s kind of death – whether ischaemic heart disease hastened death – whether ischaemic heart disease played any real role in pathological changes – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8(1), 13(1), 120(1), (3) and (4), 120A(3)
CASES
Benjamin v Repatriation Commission [2001] FCA 1879
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90
Hill v Repatriation Commission [2009] FCAFC 91
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law [1981] HCA 57
SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease (Reasonable Hypothesis) No. 1 of 2016
Andre Hebra et al, ‘Intestinal Volvulus’, Medscape (online), 20 January 2012
Rachel Nall and Ana Gotter, ‘Hypovolemic shock’, Healthline (online), 28 April 2016
REASONS FOR DECISION
Senior Member J F Toohey
18 November 2016
Background

Mr Jeffrey Austen served in the Royal Australian Navy from November 1944 to April 1946. He died in hospital on 10 May 2014 at the age of 86. His widow, Mrs Patricia Austen claims a war widow’s pension on the basis that her husband’s death was war-caused. The Repatriation Commission has refused her claim and the Veteran’s Review Board has affirmed that decision.
The whole of Mr Austen’s service is operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). Mrs Austen will be entitled to a pension if her husband’s death was “war-caused”: subsection 13(1). The meaning of “war-caused death” is set out in subsection 8(1) and includes, relevantly, where “the death arose out of, or was attributable to, any eligible war service rendered by a veteran”: subsection 8(1)(b).
The standard of proof
Where a veteran’s death relates to operational service, the standard of proof in s 120(1) of the Act applies, the effect of which is that the Tribunal must determine that Mr Austen’s death was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In applying subsection 120(1) the Tribunal will be so satisfied if the material before it does not raise a reasonable hypothesis connecting Mr Austen’s death with the circumstances of his service: subsection 120(3).
The steps to determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must determine whether the material before it points to a hypothesis connecting a veteran’s death with the circumstances of his service and, if so, ascertain whether there is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 923
Decision Date: 18 November 2016

CaseChat Overview and Summary

This matter concerned a claim by Mrs Austen for veterans' entitlements following the death of her husband. The dispute centred on whether her husband's death was related to his service, specifically whether his ischaemic heart disease played a role in his death from midgut volvulus. The case was heard by J F Toohey SM.

The court was required to determine whether the veteran's ischaemic heart disease was a medical cause of his death, or whether it hastened his death in a way that would qualify for entitlement under the Veterans' Entitlements Act. The legal issue was whether a pre-existing condition that may have contributed to the decision not to operate, and potentially hastened death, constituted a "death" or "kind of death" for the purposes of the Act, even if another condition was the direct pathological cause.

The court reasoned that the inquiry under the Act is essentially a question of fact about the medical cause or causes of death. Applying the principles from *Collins*, the court held that a medical condition which hastens death by a measurable period, but does not otherwise play a real role in the pathological changes leading to death, is not a medical cause of death under the Act. The evidence indicated that the veteran died from hypovolaemic shock caused by a midgut volvulus. While his ischaemic heart disease and the medication he was taking made him unsuitable for surgery, and may have influenced the decision not to operate, the court was not satisfied that the heart disease played any real role in the pathological changes leading to the volvulus and shock. The court noted that the veteran had also refused surgery, although the extent of his capacity to make that decision was debated.

The court affirmed the decision under review, finding that the veteran's ischaemic heart disease was not a medical cause of his death for the purposes of the Veterans' Entitlements Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Peter Austen recalls this conversation occurring shortly after he and his wife arrived at the hospital but the clinical notes suggest only one conversation along these lines occurred, around midday. It is probable, in the circumstances, that there were several conversations about the seriousness of Mr Austen’s condition. He cannot recall any discussion of his father giving consent or not to surgery. He says it seemed “a foregone conclusion” that his death within the next few days was inevitable. He was not involved in any further discussions with doctors. He could not recall his father having a CT scan.Associate Professor Haber’s evidence In a report dated 24 February 2016, written after review of documents which included clinical notes from Dr Schibeci, the hospital’s clinical notes and statements by Mrs Austen and her adult children, Associate Professor Haber stated that as he did not have hospital notes for Mr Austen’s admission, “[he could] only presume that he did not have surgery to midgut volvulus because of his general condition, age and ischaemic heart disease as he seemed so well the day before his death.” He concluded:[Mr Austen] died apparently as a result of the volvulus of the midgut causing hypovolaemic shock. Considering his ischaemic heart disease he would obviously not be a surgical candidate. One can consider therefore that his age and ischaemic heart disease have contributed to the decision not to operate for the volvulus, but I do not have the hospital notes that such assessment was considered. Associate Professor Haber went through the hospital notes in detail at the hearing. He gave evidence that, generally, a minor volvulus would not be fatal but was likely to have been so in Mr Austen’s case because he had severe metabolic acidosis (raised white cell count) and was “really sick”. His condition was so serious that it had progressed to hypovolaemic shock and, considering his age, his ischaemic heart disease for which he was on blood-thinning aspirin, and his volvulus, there was a “high probability” that he would not have survived surgery. As he read the hospital notes, Associate Professor Haber said they indicated there was a “high probability” that Mr Austen would die, and the doctors had decided only to make him comfortable. Asked about the relationship to Mr Austen’s ischaemic heart disease, Associate Professor Haber agreed that, if nothing was done surgically, he would have died as a result of the hypoglycaemic shock resulting from his midgut volvulus; he confirmed that Mr Austen was “unsuitable for surgery”. He gave evidence that, if Mr Austen did not have hypovolaemic shock, if he did not have his heart condition and was not on aspirin, an otherwise healthy man of his age would be operated on “happily these days”. However, by the time the CT scan was done and a diagnosis made, he was he was not a healthy man; he was a “very, very sick man” and “everybody decided it’s a bit late”. He gave evidence that a CT scan would likely have been called for regardless of Mr Austen’s history of heart disease.

Decision

Reasons for decision

Mr Austen’s death certificate shows he was pronounced deceased at 2.32pm. As Peter Austen recalls, there was some time between when he died and when the doctor arrived to certify him deceased. The clinical notes show his blood pressure was taken at 1.30pm, indicating that Mr Austen died sometime during the following hour. The decision concerning surgery Mrs Austen gave evidence that she was present when several doctors at her husband’s bedside agreed that he needed major surgery but there was “no way” he would cope with it because his heart was so weak and his blood pressure so low. She could not recall details of the doctors’ conversation, and says she was in and out of the room, but it was “obvious” they “were all in agreement” that her husband’s heart condition was the reason they could not perform surgery. It is submitted that, were it not for his heart condition, surgery could have proceeded and, in all likelihood, Mr Austen would have survived. The respondent submits that the decision not to perform surgery, and Mr Austen’s death a short time later, were not materially affected by his ischaemic heart disease. Further, that Mr Austen himself refused surgery. It is not clear how lucid Mr Austen was at various times throughout the morning. Mrs Austen says when she arrived she was “amazed” that he was so aware of what was going on. She also recalls that he was “in and out of consciousness”, coherent one minute and “off with the fairies” the next, and deteriorating rapidly. According to the clinical note made at 12.50pm, a doctor had a “family discussion” with Mr Austen and his wife explaining that the pathology and progress of the disease and that Mr Austen needed “urgent laparotomy to fix the problem”; it was explained that, if not done, the disease would progress and he “might die”. The note records that Mr Austen was “competent [and] alert”; he “refused to have the operation”; he “understood the disease process” and “advanced medical care” was discussed with him and Mrs Austen. Giving evidence, Mrs Austen acknowledged that her husband did not want surgery because he had had so many operations over the years, and she remembers him saying “no operation”, but she disagrees that he “refused” surgery; rather, he “sort of said he didn’t want it”. She says he was “a fighter” and “probably thought he would get better” as he had on previous occasions. As she recalls, he did say once that morning, that he did not want surgery but it was “a long way down the track”. She thinks she was the only person who heard him say that but she acknowledged there might have been a conversation to that effect when she was not present. As the clinical notes show, Mr Austen said words to the effect of “no operation”. Peter Austen gave evidence that Mrs Austen was present when he and his wife were asked to speak with two registrars in a conference room. They summarised his father’s condition and explained that he would have been considered a candidate for surgery for the volvulus were it not for his low blood pressure and heart condition; as it was, they had decided to let things “take their natural course”.

Ratio Decidendi

Legal Principle Established

In a report dated 1 September 2014, Dr Schibeci advised Mrs Austen’s then advocate that her husband “died from a small bowel volvulus which had no relationship to his ischaemic heart disease”. He added, however, that “his body’s response to this significant pathological onslaught would probably have been adversely affected due to the fact that he had ischaemic heart disease.Consideration In Collins (above), the veteran’s death certificate listed his cause of death as pulmonary embolism. It was accepted that this condition was not war-caused but his widow contended that his ischaemic heart disease, which developed as a result of hypertension caused by his service-related drinking, was one of the causes of his death. There was evidence on the one hand that the heart disease had “little or no impact” on his death and, on the other, that probably contributed to his death in the sense that it occurred hours or a few says earlier than would otherwise have been the case. Upholding the decision of the Tribunal that ischaemic heart disease was not a medical cause of the veteran’s death, the Full Federal Court said at [82]:[The relevant provisions in the Act] support the conclusion that the inquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of death. It does not support the proposition on behalf of Mrs Collins that there is a legislative intention that any medical condition which hastens the time of death of a veteran 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 death. At [84]:For these reasons, 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 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 (emphasis added). As the Full Court observed, had Mr Collins during his lifetime claimed a pension for ischaemic heart disease, he may have established that disease was war-caused. Even so, however, it would not automatically have followed that Mrs Collins was entitled to a pension following his death; his ischaemic heart disease would still have to be a medical cause of his death. For the following reasons, I am not satisfied that Mr Austen’s ischaemic heart disease played any real role in the pathological changes leading to the hypovolaemic shock and midgut volvulus from which he died. The evidence shows that Mr Austen was apparently in reasonable health when he arrived at hospital on 10 May 2014 other than for severe abdominal pain, and constipation over the previous week. Similar episodes in the past had resolved with treatment and there was no apparent reason the same would not happen again. The evidence shows, however, that was not to be. Within three hours he had a condition which Associate Professor Haber thought likely to be fatal, and from which he died approximately four hours later. Whether that condition was present when he arrived or developed subsequently, is not material in this case. There was a “high probability”, according to Associate Professor Haber, that Mr Austen was going to die.

Division	VETERANS' APPEALS DIVISION
File Number	2015/2724
Re	Patricia Austen
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	18 November 2016
Place	Sydney