Costa and Repatriation Commission (Veterans' entitlements) - [2018] AATA 3035

Costa and Repatriation Commission (Veterans' entitlements) [2018] AATA 3035 (23 August 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3200
Re:Erlinda Costa
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:23 August 2018
Place:Sydney

The decision of the Repatriation Commission made 22 March 2016 is set aside.
In substitution, it is decided that the death of the late Ian Gordon Costa on 19 October 2013 was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) and that Mrs Costa qualifies for the widow’s pension.
The date of effect of this decision is 4 April 2014.
.................[sgd].......................................................
J W Constance
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for widow’s pension – whether spouse’s death was war-caused – hypertension – cerebrovascular accident – atrial fibrillation – smoking and alcohol related condition – hypothesis connecting injury or disease with the circumstances of operational service – Statement of Principles No. 63 of 2013 – Statement of Principles No. 65 of 2015 – Statement of Principles No. 49 of 2014 – decision set aside
LEGISLATION
Veterans' Entitlements Act 1986 (Cth)
CASES
Bull v Repatriation Commission [2001] FCA 1832
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
Deputy President J W Constance
23 August 2018
A: INTRODUCTION
Mrs Costa is the widow of the late Mr Ian Costa who died on 19 October 2013.[1]
[1] Date of marriage 28 May 1988: exhibit R1 at 18; Death Certificate: exhibit R1 at 19.
On 4 July 2014 Mrs Costa applied to the Repatriation Commission for a widow’s pension under the provisions of the Veterans’ Entitlements Act 1986 (Cth). Her application was refused on the ground that Mr Costa’s death was not war-caused. Mrs Costa has applied to the Tribunal to review this decision.
For the reasons which follow the Commission’s decision will be set aside. In substitution, it will be decided that Mr Costa’s death was war-caused and that Mrs Costa qualifies for a widow’s pension.
B: LEGISLATIVE FRAMEWORK
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be war‑caused. The relevant parts of that section are:
War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Section 8(1)(b) provides:
War-caused death
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused…

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: [2018] AATA 3035
Decision Date: 23 August 2018

CaseChat Overview and Summary

This case concerned an application for a widow's pension by Mrs Costa, following the death of her husband, Mr Costa. The central dispute was whether Mr Costa's death was "war-caused" within the meaning of the *Veterans' Entitlements Act 1986* (Cth). The matter came before Deputy J W Constance P.

The legal issues before the court were whether the evidence pointed to a hypothesis connecting Mr Costa's death, which involved hypertension, a cerebrovascular accident, and atrial fibrillation, with the circumstances of his operational service. This required consideration of various Statements of Principles, including No. 63 of 2013, No. 65 of 2015, and No. 49 of 2014, and whether the established medical conditions were sufficiently linked to his service.

The court considered evidence from Associate Professor Haber and Professor O’Rourke, as well as statements from Mrs Costa and Mr Barry Costa. Associate Professor Haber opined that excessive alcohol consumption could cause atrial fibrillation and that smoking was a known cause of cerebrovascular accidents, materially contributing to Mr Costa's stroke. Professor O’Rourke detailed the severe arterial damage caused by Mr Costa's heavy smoking and alcohol consumption, leading to his premature death. The court found the witnesses to be honest and their evidence supported by medical records. Crucially, the court was satisfied that the evidence established a hypothesis connecting Mr Costa's death to his operational service.

Consequently, the decision of the Repatriation Commission made on 22 March 2016 was set aside. The court substituted a decision that Mr Costa's death on 19 October 2013 was war-caused, entitling Mrs Costa to a widow's pension, with effect from 4 April 2014.

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

When he gave evidence, Associate Professor Haber said that it was likely that consumption of alcohol would cause Mr Costa to develop hypertension.[13] [13] Transcript 2/3/2018.Evidence of Professor O’Rourke, Cardiologist Professor O’Rourke provided reports dated 21 August 2017, 26 September 2017, 12 December 2017 and 19 December 2017 and he also gave evidence before the Tribunal. Professor O’Rourke expressed the opinion that:I do consider that Mr. Costa’s smoking up to 1998 caused or contributed to the events that caused his death. He smoked heavily and up to 80 cigarettes/day over the 15 years from end of war service up until his first stroke, which was caused by severe arterial damage in the brain, but which also affected other parts of his body including his heart.[14][14] Exhibit R2 at 4 at [3.2]. In response to the question as to whether he considered Mr Costa’s alcohol consumption caused or contributed to the event or events which caused his death, Professor O’Rourke noted:Mr. Costa had a very heavy intake of alcohol which clearly elevated his blood pressure to a level where a vicious cycle was entered … and widespread vascular disease was induced to cause premature degeneration and cerebrovascular disease with cerebral bleeding, cerebral thrombosis and/or embolism and cerebral infarction with death in October 2013 at age 66. Alcohol consumption was extremely high, and sufficient to cause rhabdomyolysis of skeletal muscle and kidney damage, (warranting kidney biopsy).[15][15] Exhibit R2 at 4 at [3.3]. Professor O’Rourke also noted:If Mr. Costa did not fulfil the diagnosis of hypertension at age 16, he did in January 2004 at age 57 when he was admitted to Newcastle Mater Hospital with blood pressure in the region of 250/150 following his second stroke.[16][16] Exhibit R2 at 4 at [3.5]. In response to the question as to whether there was a connection between hypertension and Mr Costa’s death, Professor O’Rourke said:Hypertension caused Mr. Costa’s premature death at age 67 [sic] by causing degeneration of the systemic arteries which supplied his brain and heart. …The modern approach to prevention of cardiovascular degeneration and early death is based on identification and control of arterial pressure.[17][17] Exhibit R2 at 4-5 at [3.6]. With regards to the aetiology of the hypertension condition, Professor O’Rourke noted:In Mr. Costa’s case, I believe this probably commenced as an inherited predisposition for blood pressure to be maintained at a higher level than most other persons, and to be more susceptible to insults. The principal insult in Mr Costa’s case was his excessive and persistent alcohol ingestion over his whole adult life, continuing even after his first and second strokes (1998 and 2003) after he had been warned, and his failure to have blood pressure monitored and treated by his local GP. He also smoked very heavily up to 1998.[18][18] Exhibit R2 at 5 at [3.7], In his report of 26 September 2017, Professor O’Rourke stated that Mr Costa did not suffer from hypertension at the time he joined the Navy or at the time he was discharged.[19] In his opinion, the clinical onset of hypertension was in 1974 when it was first confirmed during hospitalisation and warranted modification of lifestyle.[20] Report of Writeway Research Service Pty Ltd 1 January 2017[21][19] Exhibit R3.[20] Exhibit R4 at 2.[21] Exhibit A3.

Decision

Reasons for decision

Having considered the evidence of Mrs Costa, Mr Barry Costa and Associate Professor Haber, I am satisfied that they were honest witnesses who gave their evidence to the best of their recollection. Their evidence is supported by the medical records. On this basis I cannot be satisfied beyond a reasonable doubt that the death of Mr Costa was not war-caused.F. CONCLUSION The decision of the Repatriation Commission made 22 March 2016 will be set aside. In substitution, it will be decided that the death of the late Ian Gordon Costa on 19 October 2013 was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) and that Mrs Costa qualifies for the widow’s pension. The date of effect of this decision is 4 April 2014.

Ratio Decidendi

Legal Principle Established

Based on the evidence of Associate Professor Haber, Professor O’Rourke and the medical records referred to later in these reasons, I am satisfied that this is a proper concession.E3. Issue 3: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?E3.1. Material before the TribunalMr Costa’s date of birth Mr Costa was born on 4 August 1947.[5][5] Exhibit R1 at 18.Evidence of Mrs Costa Mrs Costa provided a statement dated 12 December 2016[6] and she also gave evidence before the Tribunal.[6] Exhibit A1. Mr and Mrs Costa met in 1985 in the Philippines. From that time until early 1988 Mr Costa usually visited Mrs Costa in the Philippines twice each year, staying for about a month on each occasion. During these visits Mr Costa consumed about four litres of wine and smoked about three packets of cigarettes per day. He drank beer and rum as well. Mr and Mrs Costa married in 1988[7] and from that time they lived in Australia.[7] Exhibit R1 at 18. Mr Costa continued to smoke about three packets of cigarettes per day until he suddenly stopped smoking in 1993. He continued to consume about four litres of wine per day until early 2012 when he underwent surgery. He then reduced his alcohol consumption to about two glasses of wine per day. In an Alcohol Questionnaire completed by Mrs Costa on 26 June 2014[8] she stated that from about 2009 Mr Costa’s consumption of alcohol was reduced to about one cask (four litres) of wine per week.Evidence of Mr Barry Costa[8] Exhibit R1 at 15. Mr Barry Costa is the younger brother of the late Mr Costa. He provided statements dated 23 November 2015 and 22 January 2017[9] and he also gave evidence before the Tribunal.[9] Exhibit A2. Mr Barry Costa was also a member of the Royal Australian Navy. He did not serve on the same ship as his brother. He recalls that Mr Costa started smoking and consuming alcohol in late 1965 when he was stationed on a Navy ship. This was shortly after Mr Costa enlisted and shortly after his eighteenth birthday. At that time duty-free cigarettes were available on all Navy ships at a cost of about twenty cents per packet. Mr Costa’s smoking and alcohol consumption increased over the time of his Naval service. By 1975 he was smoking a packet of cigarettes per day. This later increased to three packets per day. By 1975 he was also drinking heavily, consuming beer, wine and spirits. Evidence of Associate Professor Haber, Consultant Physician Associate Professor Haber provided a report dated 22 February 2017[10] and he also gave evidence before the Tribunal.[10] Exhibit A4. In the opinion of Associate Professor Haber “[e]xcessive alcohol consumption is known to cause atrial fibrillation.” [11][11] Exhibit A4 at 3. He was also of the opinion that:Smoking is well known to cause Cerebrovascular accident. The Veteran’s smoking has caused or materially contributed to his Cerebrovascular accident/ stroke.[12][12] Exhibit A4 at 5.