Beitz and Repatriation Commission
[2002] AATA 987
•18 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 987
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/121
VETERANS' APPEALS DIVISION )
Re FRANCIS BEITZ
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date18 October 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and decides that Mr Beitz' ischaemic heart disease is a service related disability. The Tribunal remits the matter to the respondent to assess the appropriate level of entitlement in accordance with this decision together with a re-assessment of the "Lifestyle Questionnaire".
.................(Sgnd).................
Dr E K Christie
Member
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements – extreme disablement adjustment rate – ischaemic heart disease – hypertension and salt consumption – whether Statement of Principles satisfied - whether reasonable hypothesis – evaluation of scientific evidence – scientific inferences and causation
Veterans' Entitlement Act 1986 ss 9, 120, 120A
Caswell v Powell Duffryn Associated Collieries [1939] All ER 722
Connors v Repatriation Commission [2000] FCA 783
East v Repatriation Commission (1987) 74 ALR 518
Mason v Repatriation Commission [2000] FCA 1409
Re Paint and Repatriation Commission [2000] AATA 709 (17 August 2000)
Repatriation Commission v Bey (1997) 47 ALD 481
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v McKenna (1998) 28 AAR 7
REASONS FOR DECISION
18 October 2002 Dr E K Christie, Member
This is an application by Francis Beitz to review a decision of the Veterans' Review Board ("the VRB") of 6 December 2000 in which:
· Mr Beitz' pension was assessed at one hundred percent (100%) of the General Rate under the Veterans' Entitlements Act 1986 ("the Act"); and
· Mr Beitz' ischaemic heart disease was determined not to be a war-caused disease or injury within the meaning of section 9 of the Act.
The reasons for this application for review were that:
"The Veterans' Review Board failed to consider or place sufficient weight upon evidence presented on behalf of Mr Beitz establishing a link between his condition of ischaemic heart disease and his war service and establishing his entitlement at a rate of pension greater than that ordered by the Board" (Folio 'C').
At the hearing, Francis Beitz was represented by Mr A Harding of Counsel. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
FactsThe general facts were not in dispute and may be stated briefly. Mr Beitz served in the Australian Army, during Ward War II, from 6 October 1941 until 3 November 1945. That period of service constitutes operational service under the Act. His date of birth was 10 June 1921.
Mr Beitz has the following accepted "Service Related Disabilities":
· GSW right forearm with median nerve paralysis
· malaria
· right conductive deafness
· chronic tonsillitis
· cervical spondylosis
· postural backache
· dryness of skin right hand
· dependant hysterical personality
· vertigo
· acquired cataracts in both eyes
· aortic aneurism
· deafness left ear
Mr Beitz has the following "Non-Service Related Disabilities":
· ischaemic heart disease
· presbyopia
· chronic conjunctivitis
At the hearing, both parties acknowledged the medical opinion of Dr S Mellick (Exhibit A3) that:
(a)the date of clinical onset of hypertension was 15 August 1961; and
(b)the date of clinical onset of ischaemic heart disease was April/May 1991.
Issues to be Decided
The primary issue for the Tribunal to decide was whether Mr Beitz' ischaemic heart disease was a war-caused disease; specifically, the connection between operational service, ischaemic heart disease, hypertension and salt intake. The findings in this regard would have implications whether the pension entitlement had been paid to Mr Beitz at the correct rate.
Legal Framework: Whether Reasonable HypothesisDespite the significant modifications to section 120 of the Veterans' Entitlements Act 1986 by the issue of Statements of Principles by the Repatriation Medical Authority and the associated amendments to the legislation (refer particularly section 120A), an "hypothesis" which is "reasonable" needs to be "raised".
With the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Court at 206 recorded the four stages as follows:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
1.The 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.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP 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.
3.If an 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.
4.The 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."
The plain meaning of "hypothesis" was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
"A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption."
In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:
"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
In reaching this conclusion, the Court relied on an unreported Veterans' Review Board decision in Stacey decided on 26 June 1985 where it was stated –
"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. It is the opinion of the Board to be reasonable, a hypothesis must possess some degree of acceptability or credibility; it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the board, we think it must find some support in that material; that is the material must point to and not merely leave open a hypothesis as a reasonable hypothesis."
In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges summarised the historical development of the concept of "reasonable hypothesis". At page 490 the Court said:
"Any doubt that attends the status of East as a correct exposition of the law relating to s.120(3) should be dispelled."
The Court also at page 490 concluded:
"A reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."
In Connors v Repatriation Commission [2000] FCA 783 at paragraph 14, Kenny J rejected a submission made by Counsel that "no individual part, or parts of the hypothesis need be supported by facts raised in or by evidence". Her Honour decided:
"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material…..If the material does raise the hypothesis, then the decision maker must determine whether it is reasonable."
Her Honour then relied on a passage from the decision of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 where His Honour said:
"For the purposes of s.120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles, is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated the hypothesis has to point to a connection, which starts with a disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and if need be by more than one Statement of Principles."
Evaluation of the factual evidence
Evidence of Francis Beitz, the Applicant
Mr Beitz said that he went to New Guinea in 1942 where he served as a stretcher bearer. This involved "very hard physical duties" and work in the open. Prior to military service he said that he "did not use much salt [at all] in those days".
Mr Beitz said that he had been directed by officers in New Guinea to use salt tablets. He said that he would dissolve four to five salt tablets in his water bottle each day. He estimated a water bottle to be about 750ml capacity. He told the Tribunal that he would replenish his water bottle, with salt tablets, around four to five times per day. In addition to salt consumed in his drinking water, he thought that he may have also chewed one to two salt tablets each day, in New Guinea, "on most days". However, he was uncertain on this point, because of the passage of time.
Mr Beitz described the food that he consumed during operational service as being "very salty". Furthermore, he stated that he had no understanding of the properties of salt at this time and was "medically unaware whether it was good, bad or indifferent". He continued to consume high amounts of salt in his drinking water and food because Army officers maintained that soldiers required salt because of the "conditions lived in". During cross-examination, Mr Beitz said that he added "plenty of salt" to his Army food, "till I could see the food covered in it".
Mr Beitz stated that following service in New Guinea his preference for salt had changed as he had a taste for it. After service, Mr Beitz said that his normal daily practice was to continue to use salt liberally on most foods he prepared and consumed – varying from savoury meals to fruits such as green apples, and watermelon.
Mr Beitz was shown a vial containing 12g of measured salt. Mr Beitz stated that the amount of salt he consumed after service would have been around this amount each day. However, the thought he would have consumed more than this amount over the period of a day during operational service.
Mr Beitz concluded by stating that the amount of salt that he consumed following operational service was "much, much more" compared to his pre-war service consumption.
Evaluation of Expert Evidence
Dr Justin Kenardy, Associate Professor and Director of Clinical Psychology, University of Queensland
Dr Kenardy gave evidence on behalf of the Repatriation Commission. His research interests included the psychology of eating. He had prepared a consultancy report for the hearing titled "Background Report: Veterans' Affairs Consultancy" (Exhibit R2).
Dr Kenardy referred to research studies undertaken by Beauchamp (1987) and Bertino, Beauchamp & Engelman (1986) which showed that increases in salt intake, following repeated exposure to higher salt diets, indicated an underlying process that was purely sensory or hedonic (that is for the pleasure of the flavour) – rather than because of a physiological need or dependence on salt. The results of these studies indicated that changes in salt preference were related to a sensory experience of the salt, by the actual tasting of the salt rather than necessarily because of the physiological response associated with the salt consumed. He stated that the salt must be actually tasted in order for there to be any change in preference for salt.
When asked whether a person given extra salt on a regular basis could change their preference, Dr Kenardy responded:
"It depends on whether they actually taste it or not …if you are given salt in a form where you don't taste it, then the research indicates that you are perhaps less likely to change your preference."
Dr Kenardy then referred to research studies that investigated the effects of increased/decreased consumption or preference levels. He said that these studies pursued an idea that there was a point at which salt consumed was at "peak preference". The studies of Bertino, Beauchamp & Engelman (1986) showed that there was a relationship between how much salt was actually consumed and how much it changed salt preference. The "peak preference" represented the maximum amount of preference associated with the amount of salt consumed. In addition, there was a point at when too much salt was consumed, preference commenced to decline. That is, salt could be averted in terms of its effect or preference.
Dr Kenardy then referred back to the Bertino, Beauchamp & Engelman (1986) study ("the Bertino Study") which concluded that when salt was actually tasted there was likely to be a change in salt preference of approximately 50% of the actual salt consumed. However, he stated that it was unlikely that this proportion applied to all levels of salt consumption.
In relation to circumstances where a person was given an extra 12g of salt over a period, Dr Kenardy stated, by applying the "the Bertino study", that salt preference would not change by the whole 12g but in proportion by "about a third".
Dr Kenardy expressed the further opinion that because very high levels of salt consumption were likely to be aversive, preference with high salt intake was not likely to change in the proportions reported by the "Bertino Study".
Under cross-examination Dr Kenardy conceded that he had not carried out any studies in the amount of salt lost by a person involved in heavy labour in humid conditions.
Dr Kenardy then acknowledged that the research studies he had referred to in his consultancy report which reviewed salt depletion, salt preference and compensation for a salt depleted state were based on animal work and that he was "not sure how well it [the research studies] translates to humans".
Dr Kenardy acknowledged during further cross-examination that an increase in hedonic preference for salt would be expected in many cases, where salt was consumed for whatever reason, and continued to be taken over time. However, the preference would change in proportion to the salt gained – not on a 1:1 basis but of the order of 1:3.
The Tribunal raised the following questions in order to assess the weight to be given to the scientific evidence and expert opinion contained in Dr Kenardy's consultancy report.
Dr Kenardy was asked by the Tribunal whether there was some uncertainty recognised by science in extrapolating from animal studies to humans because of factors such as differences in anatomy, metabolism, the manner the substance was administered (constant versus intermittent rates) and physiology. Dr Kenardy acknowledged that there was such a problem of uncertainty encapsulated by these scientific concerns, adding that human cognition could also have quite a significant effect on these sorts of things.
Dr Kenardy was next asked by the Tribunal about the statistical reproducibility of the conclusions contained in the research studies that he had reviewed in his consultancy. Specifically, the actual sample size of humans subject to a particular study. Dr Kenardy was referred to the following two studies referred to in his consultancy. The research articles were provided to the parties at the hearing:
(a)Bertino M, Beauchamp G and Engelman K (1986) "Increasing Dietary Salt Alters Salt Taste Preference" Physiology & Behaviour, Vol 38, 203-213; ("the Bertino Study"); and
(b)Huggins, R Nicolantonio, R and Morgan, T "Preferred Salt Levels and Salt Taste Acuity in Human Subjects after Ingestion of Untasted Salt" Appetite, Vol 18, 111-119 ("the Huggins Study").
Dr Kenardy acknowledged that the "Bertino Study" involved a sample size of nineteen people (thirteen male, six female) aged 17-25 years. The "Huggins Study" involved a sample size of nine people (seven male, two female) aged 20-30 years. Dr Kenardy agreed with the Tribunal's proposition that the small size of these studies would limit how widely the results could be extrapolated to the community stating:
"19 subjects may be sufficient to show the kinds of effects that you want to show or that you are anticipating…it is obviously limited in terms of its generalised ability to the broad population."
Dr Kenardy agreed with the Tribunal's proposition that the research studies that he reviewed in his consultancy could not be directly applied to Mr Beitz' case – but only indirectly by the method of inference.
Dr Kenardy then agreed with the Tribunal proposition that in order to strengthen the inference of the association between salt intake and hypertension in Mr Beitz' case, the four following steps would need to be adhered to:
· Step 1: Clinical examination, history of salt intake by Mr Beitz; history of hypertension;
· Step 2: Animal studies under very closely controlled conditions to characterise the nature of the association;
· Step 3: Research studies into the association involving individuals or small groups to establish some principles;
· Step 4: Research studies with large groups, or even the community, to ensure the wider application of the findings in the small group studies [in Step 3] to the community at large.
When asked by the Tribunal whether his consultancy report only focussed on Steps 2, 3, Dr Kenardy stated, "Yes, that would be correct."
Finally, Dr Kenardy acknowledged that the conclusions in his consultancy report would have limitations with respect to a wider extrapolation to the community as well as their application to strengthening the inference of the association in Mr Beitz' individual situation.
Contentions and Submissions of the Parties
Mr Harding submitted the following elements for the hypothesis connected Mr Beitz' hypertension, and consequently his ischaemic heart disease to his operational service:
(a)that Mr Beitz increased his intake of salt during his operational service in New Guinea through taking extra salt in the form of salt tablets issued to him;
(b)that Mr Beitz' increased consumption of salt during his service was at least a causal factor in him developing a preference for an increased consumption of salty foods during his service:
(c)that Mr Beitz' increased consumption of salt remained after service;
(d)that Mr Beitz' ingested at least 12g (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the accurate determination of hypertension ("the requisite amount");
(e)that the consumption of the requisite amount of salt can cause hypertension which can lead to ischaemic heart disease; and
(f)that the consumption of the requisite amount of salt caused Mr Beitz to develop hypertension which led to ischaemic heart disease.
With respect to the relationship of these conditions to Mr Beitz' operational service, Mr Harding contended that Mr Beitz' increased salt consumption during his operational service arose because of:
(a)an "occurrence that happened while Mr Beitz was rendering operational service"; and/or
(b)Mr Beitz' increased consumption of salt would not have occurred either:
(i)but for him having rendered eligible service; or
(ii)but for changes in his environment consequent upon him having rendered eligible war service.
Mr Harding submitted that prior to operational service, the consumption of salt by Mr Beitz was minimal compared to his salt consumption both during operational service as well as post service.
Mr Harding contended that Mr Beitz' salt consumption during operational service was high because he was given salt tablets to consume. The tablets were taken as directed by his officers as he was advised they were essential because of the conditions he served in. Mr Harding then referred to Mr Beitz' evidence that he would have dissolved four to five salt tablets in water each day and believed that he also swallowed up to one to two salt tablets each day. In addition, Mr Beitz also heartily salted his food in the mess, based on his understanding of medical needs.
Mr Harding submitted that Mr Beitz developed a liking for salt, or alternatively, developed a habit of using extra salt, as a result of operational service.
Following service, Mr Harding contended that Mr Beitz continued applying salt liberally to all his meals – across a range varying from savoury meals to fruits such as apples and watermelon. Mr Harding referred to the oral evidence of Mr Beitz that corroborated that his daily salt consumption would have at least approximated a measured amount of 12g contained in a vial.
Mr Harding's concluding submissions were that Mr Beitz developed a habit of using extra salt as a result of his operational service. Furthermore, based on his level of salt usage, Mr Beitz consumed the requisite amount of salt over the relevant six-month period prior to his developing hypertension.
With respect to hypertension, Mr Smith submitted that SoP Factor 5(c) was not satisfied because neither the quantities or mode of consumption of salt were consistent with the known mechanisms of salt habituation.
Mr Smith contended that based on Dr Kenardy's expert opinion as to the formation of a salt preference, that on the evidence and information before the Tribunal could not be concluded that the whole of the 12g of salt consumed by Mr Beitz could be attributed to operational service. Mr Smith distinguished between addictive substances (tobacco) and non-addictive substances (salt) and the amount consumed in later life that could be attributable to service. It was Mr Smith's contention that for salt, only part could be attributed to service. Anything else was a new factor intervening.
Mr Smith submitted that there were very few people who never added salt to their food before the war. He submitted that in Mr Beitz' case he added some salt to his food prior to service. Consequently, a key question became whether a total of 12g was consumed after service.
Mr Smith contended that there was uncertainty in the estimates Mr Beitz provided as to the amount of salt he consumed daily, based on the evidence he had given, in relation to the amount of salt he consumed in his food each day. He submitted that further sources of uncertainty existed in relation to the estimates of salt intake given by Mr Beitz in terms of the amount of salt added to meals that were prepared each day. In addition, there was uncertainty when the amount so estimated was compared with a visual assessment of a measured 12g amount.
Consideration of the IssuesThe Tribunal has adopted the four stages in Repatriation Commission v Deledio in considering whether Mr Beitz' contentions of hypertension and ischaemic heart disease are "Service Related Disabilities".
Whether the Material Before the Tribunal Points to a Hypothesis that connects the Injury or Disease with the Circumstances of Service
The expert medical opinion of Dr S Mellick, 7 May 2002 (Exhibit A3) provides clear evidence of the chronological history of hypertension (since 1961) and ischaemic heart disease (since 1991) in Mr Beitz. Moreover, the expert medical opinion of Dr S Mellick records the long history of Mr Beitz ingesting significant (more than 12g) amounts of salt supplements for a period of more than six months since operational service.
Accordingly, the Tribunal considers that there is sufficient material before the Tribunal that points to a hypothesis that connects hypertension and ischaemic heart disease with the circumstances of operational service. Specifically, the intake of salt during operational service.
Whether a SoP is in Force
Three SoP's are in force that are relevant to this application for review:
(a)Ischaemic Heart Disease: Instrument No 38 of 1999; and
(b)Hypertension: Instrument No 31 of 2001 and that revoked Instrument No 25 of 1999.
The Tribunal concludes that the hypothesis identified in paragraph 56 of this decision is reasonable because, pursuant to subsection 120(3) of the Act, the following factors are contained within the SoP's and are consistent with the template or factor:
(i) SoP No 38 of 1999, "Ischaemic Heart Disease". Factor 5 (a) states:
"5(a) the presence of hypertension before the clinical onset of ischaemic heart disease":
where at paragraph 8:
'hypertension' means elevated baseline blood pressure, evidenced by:(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 99mmHg; or
(b) administration of antihypertensive therapy;(ii) SoP No 31 of 2001 "Hypertension". Factor 5(c):
5(c) ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension (emphasis added);
(iii) In SoP No 25 of 1999 'Hypertension', Factor 5(c) states:
"5(c) ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension (emphasis added);
(iv) In both "Hypertension SoPs", "salt supplement" is defined to mean:
"salt supplement" means salt added to food when cooking or eating, or salt contained in salt tablets;
Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof
The Tribunal turns to subsection 120(1) of the Act to decide whether or not it can accept sufficient of the facts as to disprove the hypothesis beyond reasonable doubt, by carefully considering all of the evidence and information before the Tribunal.
The first issue for the Tribunal to consider is whether Mr Beitz' ischaemic heart disease condition satisfies Factor 5(a) of the SoP No 38 of 1999.
An elevated baseline blood pressure (150/90) was first evidenced on 15 August 1961 and is consistent with SoP No 38 with respect to hypertension. The available medical data relating to the immediate post-war period indicated blood pressure measurements of 130/70 (10 December 1947) and 125/70 (19 January 1949) [Exhibit R3, Dr S Mellick, 7 May 2002 at page 2 "Antecedent History"].These two latter values are outside the value for hypertension, of 140/90, specified by the SoP. Furthermore, Dr Mellick's report stated that he could not find any other record pre-dating these values with an abnormal pressure.
The expert opinion of Dr Mellick (Exhibit A3, 7 May 2002) makes it quite clear that an elevated baseline blood pressure, first evidenced on 15 August 1961, indicates that the presence of hypertension occurred before the clinical onset of ischaemic heart disease in April/May 1991. The chronology of hypertension and ischaemic heart disease is not in dispute and was acknowledged by both parties (see para 8).
However, for Factor 5(a) of SoP No 38 of 1999 ("Ischaemic Heart Disease") to be satisfied, the Tribunal must determine whether the "Hypertension SoP" is satisfied.
Accordingly, the next issue for the Tribunal to consider is whether Factor 5(c) of the SoP No 31 of 2001 ("Hypertension") is satisfied. In particular, whether there is a connection between hypertension and operational service with specific reference to salt intake.
The Respondent has relied on the expert opinion of Dr Kenardy, in this regard, to support their contentions that Factor 5(c) was not satisfied.
In deciding the weight that should be given to Dr Kenardy's expert opinion, the Tribunal concludes that the following aspects of his evidence and conclusions expressed in his report, are relevant considerations:
(a)An acknowledgment by Dr Kenardy that his conclusions, based on the literature review contained in his consultancy report (Exhibit R2), could only be applied, indirectly, to the factual circumstances of Mr Beitz' individual case by the scientific method of inference (para 39); and
(b)A further acknowledgment by Dr Kenardy that the conclusions contained in his consultancy report were derived from research work undertaken with laboratory animals and studies involving very small numbers of human subjects. Moreover, Dr Kenardy's concession that there was scientific uncertainty extrapolating the findings of animal studies to humans (see paras 33, 36). In addition, Dr Kenardy's concession, that because of the small number of human subjects in the studies reviewed, that the conclusions in his consultancy report were "obviously limited in terms of its generalised ability to the broad population" (see para 38).
Furthermore, Dr Kenardy also conceded that the conclusions contained in his consultancy report would have limitations with respect to their application to strengthening the inference of the association between salt intake and hypertension in Mr Beitz' individual situation (see para 42).
Because of the above limitations in the consultancy report prepared by Dr Kenardy, the Tribunal concludes that it does not accept the conclusions of Dr Kenardy that are of specific relevance to this application for review. Specifically, the conclusions relating to the effects of increased/decreased consumption of salt on preference levels (see para 28) and in particular changes in salt preference relative to the proportion, and hence amounts, of salt actually consumed (see paras 28, 29, 30 and 34).
Furthermore, the Tribunal has considered the legal meaning attached to the evidentiary issue of "inference" in related to the scientific facts and conclusions in Dr Kenardy's consultancy report.
The decision of LJ Wright in Caswell v Powell Duffryn Associated Collieries 3 [1939] All ER 722 at 733 is particularly relevant in relation to the weight to be placed on an inference:
"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish … but if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
Applying the reasoning in Caswell's case to this application for review, the Tribunal finds that the limitations in Dr Kenardy's conclusions contained in his consultancy report, that have been subject to the earlier findings in this decision, are such that the inference the respondent seeks does not apply to Mr Beitz' individual situation. Specifically, there are no objective facts from which to infer other facts that apply to Mr Beitz' individual situation that could lead to the following conclusions:
(a) that an increase in hedonic preference for salt during operational service would lead to a change in salt preference in the post-service period by only a proportional increase of 1/3 to ½ of the operational service intake; and
(b) that the effects of such a proportional change in preference would mean that the threshold requirement of salt intake of 12g/day would not be satisfied.
Accordingly, Dr Kenardy's conclusions cannot be applied indirectly to Mr Beitz' individual situation in these circumstances as any inference relied upon by the respondent is speculative because of the inherent, acknowledged limitations in the consultancy report and that have been subject to Tribunal findings.
Consequently, the Tribunal in considering whether Factor 5(c) of SoP No 31 of 2001 ("Hypertension") is satisfied, next considers the expert evidence of Dr Mellick and the lay evidence of the applicant, Mr Beitz, with respect to the consumption of salt by Mr Beitz over time.
Dr Mellick, in his expert medical report (Exhibit A3, 7 May 2002) referred to a long history of salt ingestion by Mr Beitz:
"…has also a history of ingesting a significant (more than 12 grams) amount of salt supplements for a period of more than six months, but this was certain during his war service and the amount which he ingested after that probably also was of this degree, and he did not stop taking salt until he was advised to do so by Dr Lynch and that would have been after 1990.
In summary then this patient has had hypertension recorded since 1961 and he had more than the usual salt additives to his diet up to and at that stage and subsequently, and he suffered a myocardial infarction in 1991, again sequential on that earlier history, and his earlier smoking habit would appear to be unrelated" (at Para 5 page 2) (Tribunal emphasis)
The Tribunal finds Mr Beitz to be a credible witness and to be a witness of truth. Accordingly, the Tribunal accepts Mr Beitz' evidence with respect to low salt consumption prior to service increased intake, during operational service and the consumption that continued in the post-service period. The Tribunal further accepts his estimates of the amount consumed in the post-service period (see paras 19-23). Moreover, the Tribunal concludes that the evidence of Mr Beitz is corroborated by the expert medical evidence of Dr Mellick.
The Tribunal next considers the contribution of salt consumption during Mr Beitz' operational service to his post-service conditions of hypertension and ischaemic heart disease, in order to determine whether there is any causal contribution of operational service to these medical conditions. The Tribunal considers that in addition to the physiological and psychological effects that determine salt consumption in humans (see Exhibit R2 at page 1), there are also factors special to war service.
The effects of increased salt intake by Mr Beitz during operation service and his subsequent post war behaviour with respect to salt intake becomes a central issue. The resolution of this issue is a function of:
(a)the patterns of salt intake over time as can be addressed from evidence before the Tribunal;
(b)expert opinion on the effects of variations in salt consumption on preference levels over time; and
(c)estimates of the amount of salt consumed daily.
Because the Veterans' Entitlements Act is beneficial legislation, there is a requirement for reasonable certainty that a link does not exist before a claim can be rejected: Re Paint and Repatriation Commission [2000] AATA 709 (17 August 2000) at para 59.
In relation to the pattern of salt intake prior to and during operational service, the Tribunal accepts Mr Beitz' evidence that his consumption of salt prior to service was much less relative to intake during service. Moreover, the Tribunal further accepts Mr Beitz' evidence that his salt intake increased significantly during operational service, relative to the pre-service period. Next, the Tribunal finds that, based on the expert opinion of Dr Mellick (para 73) and the earlier Tribunal finding on patterns of salt intake (para 74) that Mr Beitz increased consumption of salt continued after service as he had acquired a taste for it at this time (para 22).
The Tribunal next considers the "threshold test" as imposed by SoP No 31 of 2001 in terms of the amount of salt ingested and the relevant time. That is, whether Mr Beitz "ingested at least 12g of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension (15 August 1961)".
Because of the limitations in conclusions contained in Dr Kenardy's consultancy report, as subject to findings in this decision, the Tribunal finds that there is nothing in Dr Kenardy's material that proves beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that the "threshold test" imposed for salt intake by Factor 5(c) of SoP No 31 of 2001 has not been satisfied.
In contrast to this conclusion [that is, in relation to Dr Kenardy's evidence], the Tribunal finds that the following findings prove beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that Factor 5(c) of SoP No 31 of 2001 has been satisfied:
(a)That Mr Beitz had a long post-service history of ingesting a significant (more than 12g) of salt supplements that continued up to at least 1990 (see Dr Mellick, paragraph 73); and
(b)The pattern of salt intake changed during operational service, as Mr Beitz acquired a taste for salt and his high salt intake continued after service (see para 78);
(c)Based on his own evidence (paragraphs 22, 23) and the earlier Tribunal findings, that Mr Beitz consumed at least 12g of salt, daily, in the post-service period; and
(d)That the daily pattern of intake and amount (12g/daily) continued for a continuous period of at least six months before the clinical onset of hypertension on 15 August 1961.
Accordingly, based on these conclusions, the Tribunal finds that Factor 5(c) of SoP No 31 of 2001 is satisfied: Mr Beitz ingested at least 12g of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension (15 August 1961).
Each case must be considered on its merits. In this particular matter, for all of the above reasons, the Tribunal finds that the material before it proves beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that Mr Beitz' ischaemic heart disease was preceded by hypertension. In turn, the hypertension has been causally contributed to by an increased consumption of salt that would not have occurred but for him rendering operational service. The Tribunal concludes that as both the Ischaemic Heart Disease and Hypertension SoP's are satisfied, there are sufficient grounds for determining, at the requisite level of proof, and in accordance with the legal framework outlined in this decision, that there is a connection between Mr Beitz ischaemic heart disease, his hypertension and his operational service.
Therefore, for all of the above reasons, the Tribunal determines that Mr Beitz' ischaemic heart disease is a "service-related disability".
The Tribunal remits the matter to the respondent in order to assess the appropriate level of entitlement in accordance with this decision together with a re-assessment of the "Lifestyle Questionnaire".
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .....................................................................................
AssociateDate of Hearing 21 August 2002
Date of Decision 18 October 2002Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Messrs Gilshenan and Luton
Solicitor for the Respondent Mr M Smith, Departmental Advocate
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