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 if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Section 7(1)(a) provides:
Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
Standard of proof
Section 120 relevantly provides:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease; or
(c)that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonable hypothesis and a Statement of Principles
Subsection 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
C: APPLYING THE LAW
In Repatriation Commission v Deledio,[2] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[2] (1998) 83 FCR 82, 97-98. The Federal Court has since held that the last sentence in step 2 is incorrect however this is not relevant to this application. See: Bull v Repatriation Commission [2001] FCA 1832.
D: ISSUES FOR DETERMINATION
I have to determine the following issues:
1)Did Mr Costa render “operational service” and if so, when?
2)What was the “kind of death” met by Mr Costa?
3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?
5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and, therefore, a reasonable one?
6)If so, am I satisfied beyond a reasonable doubt that the death of the late Mr Costa was not war-caused?
E: DETERMINATION OF THE ISSUES
E1. Issue 1: Did Mr Costa render operational service and if so, when?
It is not in dispute that Mr Costa rendered operational service during the following periods:
·11 August 1965 to 25 September 1965;
·26 October 1965 to 24 December 1965;
·4 January 1966 to 2 March 1966;
·27 March 1968 to 26 April 1968;
·21 May 1968 to 13 June 1968;
·16 February 1970 to 5 March 1970;
·21 October 1970 to 12 November 1970;
·15 February 1971 to 4 March 1971;
·26 March 1971 to 8 April 1971;
·13 May 1971 to 1 June 1971;
·20 September 1971 to 16 October 1971;
·26 October 1971 to 18 November 1971; and
·24 November 1971 to 17 December 1971.[3]
[3] Respondent’s Statement of Facts, Issues and Contentions dated 2 March 2018 at [3.3].
I am satisfied that this is a proper concession.
E2. Issue 2: What was the kind of death met by Mr Costa?
It is conceded by the Commission that the relevant that the kinds of death were:
·hypertension;
·cerebrovascular accident;
·atrial fibrillation.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions dated 2 March 2018 at [4.3].
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 Tribunal
Mr 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.
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.
In relation to the consumption of alcohol and smoking, Mr Rothwell stated:
There can be little doubt that there was peer pressure, for sailors aged 18 and over, to drink both onboard and ashore. The normal ‘run ashore’ (taking short leave from a ship) would almost invariably commence with a stop at the nearest or most popular bar. Those who did not drink would often feel left out or become bored and therefore sometimes were not invited to join in on a later foray, thus one of the incentives to drink.
…
At the time of the Veteran’s naval service, the RAN largely reflected the practices and attitudes of the wider Australian community, where the health risks of tobacco were generally discounted, minimised or ignored. Just as there were inducements to smoke during things like breaks for ‘smokos’, so too, of course were there similar circumstances in civilian life. Nonetheless, smoking was commonplace in the Navy, recognised as being a harmless pastime, which was easily affordable. Large numbers of RAN personnel, almost certainly the majority, freely used cigarettes. Personnel were able to purchase cigarettes at duty free prices when ships were overseas and at excise free prices when in Australian waters.
…
There were three reasons why it might possibly be considered more likely that RAN personnel would smoke than their civilian counterparts. These were firstly, that cigarettes could be purchased at sea for something between one quarter and a third of the price ashore, and secondly, the (perhaps false) perception that, during a dull and boring middle watch, a cigarette would assist one to stay awake. The penalties for sleeping on watch could be very severe. Thirdly, it was, for some time, a palliative action that helped take one’s mind off other issues, such as any concern for a situation in which one found oneself.[22]
[22] Exhibit A3 at 8 at [33], [36] and at 10 at [43].
Medical Records
On 27 August 1974 Mr Costa was admitted to a Naval Hospital suffering from labile hypertension. The history recorded is that Mr Costa reported “very little” smoking and consumed six schooners per day.[23]
[23] Exhibit R1 at 35-36.
On 29 September 1977 Mr Costa’s blood pressure was recorded as 150/85 and that “mild hypertension” had been investigated.[24]
[24] Exhibit R1 at 45.
On 8 December 1982 Mr Costa’s blood pressure was recorded as “moderately raised” at 150/85.[25]
[25] Exhibit R1 at 32.
On 10 August 1998 Mr Costa’s General Practitioner recorded Mr Costa’s blood pressure as 260/140. Mr Costa was hospitalised for treatment.[26]
[26] Exhibit R6 at 177-178.
Clinical notes dated 10 August 1998 from John Hunter Hospital record that Mr Costa was suffering “hypertension – probably long-standing.”[27] Clinical notes dated 12 August 1998 record that Mr Costa:
·consumed two to three stubbies of light beer and one to two litres of table wine daily and had done so for the past eight years;
·previously he had consumed ten “middies” of full-strength beer per day “on and off” over a twenty year period.[28]
[27] Exhibit R6 at 211.
[28] Exhibit R6 at 214.

In September and December 1998 Mr Costa’s blood pressure was recorded as follows:
·3/9/1998  170/100
·11/9/1998  190/85
·Unknown date in September 1998     180/75
·11 December 1998       260/??[29]
[29] Exhibit R6 at 179.
On 31 December 2003 Mr Costa was admitted to Newcastle Mater Misericordiae Hospital having suffered a stroke. Hospital records indicate that:
·on admission, Mr Costa’s blood pressure was 220/120 and was likely to be chronic;[30]
·he was suffering severe hypertension which was longstanding;[31]
·he ceased smoking about 15 years previously;
·he had previously smoked 80 cigarettes per day;[32]
·he had commenced regular drinking of alcohol when he was 18 years old and commenced “daily drinking” at age 33;
·during the five years prior to admission he had consumed a minimum of 90 grams of alcohol per day and up to 300 grams per day.[33]
[30] Exhibit R6 at 188.
[31] Exhibit R6 at 187.
[32] Exhibit R6 at 192.
[33] Exhibit R6 at 195.
On 8 May 2007 Mr Costa consulted his General Practitioner for ongoing hypertension. It was noted that he had reduced his alcohol consumption “significantly”.[34]
[34] Exhibit R6 at 170.
Mr Costa was admitted to Westmead Hospital on 16 January 2012 suffering from a bowel obstruction. He was treated surgically. Hospital notes record that:
·he was in atrial fibrillation;[35]
·he had a history of heavy abuse of alcohol;[36]
·he previously consumed two cartons of beer per day but had reduced his alcohol intake to four glasses of wine per day at the time of admission; [37] he was also recorded as consuming six standard drinks per day at time of admission and previously one half cask of wine per day;[38]
·he was suffering hypertension.[39]
Repatriation Commission Guideline for Claims Assessors on Smoking and Alcohol Related Conditions and Military Service[40]
[35] Exhibit R6 at 2.
[36] Exhibit R6 at 18.
[37] Exhibit R6 at 12.
[38] Exhibit R6 at 18.
[39] Exhibit R6 at 2.
[40] Exhibit A5.
The Guidelines provide, in part:
This Guideline should be considered when deciding claims where smoking and/or alcohol are given as factors. The Guideline is not an instruction to Commission delegates. In accordance with Commission Guidelines CM5017 concerning the application of Section 120 of the VEA, delegates must decide the issues for themselves on the basis of all the material available to them and approaching each case on its own merits.
SMOKING
1.    Smoking is strongly addictive
2.    There is evidence that military populations smoke more than civilian populations. Service life contains many potential links to smoking. Stress, peer pressure, availability and boredom are among them.
…
6. If the temporal link exists, in OPERATIONAL SERVICE CASES, a causal link between smoking and service can frequently be inferred. This link (see point 2 above) depends on the particular circumstances of the individual.
…
ALCOHOL
1.    Alcohol consumption does not necessarily result in addiction or dependence.
…
4.    The consumption of alcohol can be related to service in one or mnore of the following ways:
·     Alcohol consumed during eligible or operational (including warlike and non-warlike) service and as a causal result of that service;
…
6.    Material that indicates any history of alcohol consumption prior to service may argue against both a temporal and causal connection with service.[41]
[41] Exhibit A5.
E3.2. The hypothesis
In past matters the Tribunal has adopted the following definition of “hypothesis” from The Concise Oxford Dictionary:
“a proposition made as basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts”.[42]
[42] Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615.
In deciding this issue I must consider all the material before me, not only that which supports the hypothesis: Repatriation Commission v Deledio.[43]
[43] (1998) 83 FCR 82 at 97.
The hypothesis which connects Mr Costa’s death with the circumstances of his operational service, as propounded on behalf of Mrs Costa,[44] is that:
·Mr Costa developed the habits of smoking and consuming alcohol during his periods of operational service between 11 August 1965 and 2 March 1966;
·his smoking increased until he ceased altogether in about 1983;
·his consumption of alcohol increased until early 2012;
·these habits were developed as a result of a combination of “peer group pressure” and the ready supply of cigarettes provided to him as a member of the Armed Forces while performing operational service;
·his habits of smoking and excessive consumption of alcohol caused him to suffer each of the medical conditions which led to his death.
[44] See Transcript 31/01/18 at .3-6.
E3.3. Does the material before the Tribunal point to the hypothesis?
The evidence of Mr Barry Costa and the Writeway report point to Mr Costa developing the habits of smoking and excessive alcohol consumption in the periods of operational service between 11 August 1965 and 2 March 1966. The same material points to these habits having developed as a result of peer group pressure from other crew members and the ready availability of cigarettes during the periods of operational service.
The evidence of Mr Barry Costa and Mrs Costa and the medical records points to these habits worsening. That evidence also points to Mr Costa continuing to smoke heavily until 1993 and continuing to drink alcohol excessively until 2012.
The evidence of Associate Professor Haber and Professor O’Rourke and the medical records point to Mr Costa’s excessive consumption of alcohol causing him to suffer from atrial fibrillation and hypertension and his excessive smoking causing his cerebrovascular accident.
E.4. Issue 4: Is there a relevant Statement of Principles in force?
The following Statements of Principles are in force and relevant to the kinds of death suffered by Mr Costa:
·Statement of Principles concerning Hypertension No.63 of 2013;
·Statement of Principles concerning Cerebrovascular Accident No.65 of 2015; and
·Statement of Principles concerning Atrial Fibrillation and Atrial Flutter No.49 of 2014.
It is not in dispute that each of these Statements relate respectively to the kinds of death suffered by Mr Costa.
Clause 4 of each Statement provides that the Repatriation Medical Authority “is of the view that there is sound medical-scientific evidence that indicates that” death from each of the respective conditions “can be related to relevant service rendered by veterans…”
E5. Issue 5: Is the hypothesis consistent with the “template” within one or more of the Statement of Principles and, therefore, a reasonable one?
Clause 5 of each of the Statement of Principles provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 8 of each Statement of Principles provides:
In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then all the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Clause 9 of each Statement of Principles provides, in part:
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink.
Hypertension
Clause 6 of the Statement of Principles concerning Hypertension provides, in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from hypertension with the circumstances of a person’s relevant service is:
(b)consuming an average of at least 300 grams of alcohol per week for at least six months before the clinical onset of hypertension.
The records of the Naval Hospital point to the clinical onset of the hypertension, which contributed to the death of Mr Costa, occurring in 1974.[45]The evidence of Mr Barry Costa was that Mr Costa commenced consuming alcohol in 1965 and was “drinking heavily” by 1975. The clinical notes of the Naval Hospital made on 27 August 1974 record Mr Costa consuming six schooners of beer per day.[46]
[45] Exhibit R1 at 35.
[46] Exhibit R1 at 36.
The hypothesis is consistent with the template in that there is evidence pointing to the factor in subclause 6(b). A reasonable hypothesis is raised connecting the hypertension which commenced in 1974 and the circumstances of Mr Costa’s operational service in 1965 and 1966.
Cerebrovascular Accident
Clause 6 of the Statement of Principles concerning cerebrovascular accident No. 65 of 2015 provides, in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from cerebrovascular accident with the circumstances of a person’s relevant service is:
(a)having hypertension within the ten years before the clinical onset of cerebrovascular accident; or
…
(d)drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident; or
…
(pp) where smoking has ceased before the clinical onset of cerebrovascular accident:
…
C. smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of cerebrovascular accident;
Clause 9 provides, in part:
“pack-year of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes.
Hypertension
On the material before the Tribunal, the cerebrovascular accident which contributed to the death of Mr Costa occurred about 30 September 2013.[47] The material points to Mr Costa suffering from hypertension from 1974 onwards.
[47] Exhibit R6 at 25 and 27.
As the hypothesis is consistent with the template in clause 6(a) of the Statement of Principles concerning Cerebrovascular Accident, a reasonable hypothesis is raised connecting the cerebrovascular accident and the circumstances of Mr Costa’s operational service. In reaching this conclusion I note that a reasonable hypothesis has been raised connecting the hypertension and the circumstances of the operational service.[48]
[48] If a chain of conditions is said to contribute to death, the Statement of Principles for each condition must be considered. See McKenna v Repatriation Commission (1999) 86 FCR 144 at [21] and [25].
Alcohol consumption
The evidence of Mrs Costa is that Mr Costa consumed about two glasses of wine per day from early 2012 when he underwent bowel surgery. This consumption of about 20 grams of alcohol per day (140 grams per week) is not consistent with the template which requires a consumption of 250 grams per week for at least the one year prior to the cerebrovascular accident.
Smoking cigarettes
The evidence of Mrs Costa is that Mr Costa smoked three packs of cigarettes per day for the period of five years between 1985 (when they met) and 1993 when he stopped smoking. Three packs per day equates to 21,900 cigarettes per year or 153,000 cigarettes over the seven year period referred to. This is well in excess of the 10 pack-years (73,000 cigarettes) referred to in the template.
The hypothesis is consistent with the template in that the material points to factor 6(pp)(iii)C being satisfied. A reasonable hypothesis is raised connecting the cerebrovascular accident which occurred on 4 October 2013 and the circumstances of Mr Costa’s operational service.
Atrial fibrillation
Clause 6 of the Statement of Principles concerning Atrial Fibrillation and Atrial Flutter No. 49 of 2014 provides, in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from atrial fibrillation with the circumstances of a person’s relevant service is:
…
(k) consuming an average of at least 140 grams of alcohol per week for a continuous period of at least the five years before the clinical onset of atrial fibrillation…
The records of Westmead Hospital point to the clinical onset of atrial fibrillation being 16 January 2012.[49] The evidence of Mrs Costa points to Mr Costa consuming four litres of wine per day from 1985 until January 2012. This is more than an average of 20 grams of alcohol (two standard drinks) per day.
[49] Exhibit R6 at 4.
The hypothesis is consistent with the template in that the material points to factor 6(k) being satisfied. A reasonable hypothesis is raised connecting the atrial fibrillation which occurred in January 2012 and the circumstances of Mr Costa’s operational service.
E5. Issue 7: Am I satisfied beyond a reasonable doubt that the death of Mr Costa was not war-caused?
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.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

....................[sgd]....................................................
Associate
Dated: 23 August 2018

Date(s) of hearing: 31 January and 2 March 2018

Counsel for the Applicant: Mr T Saunders

Solicitors for the Applicant: Kemp & Co Lawyers

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	31 January and 2 March 2018
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Kemp & Co Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers