Cree and Repatriation Commission

[2005] AATA 850

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 850

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/778

VETERANS' APPEALS DIVISION		)
Re		GWENDOLINE MAVIS CREE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date 2 September 2005

PlaceBrisbane

Decision

The Tribunal decides:

(a)      to set aside the VRB decision under review of 10 August 2004            (affirming a decision of the Repatriation Commission dated            26  November 2003) and in substitution the Tribunal finds that the            conditions of hypertension and ischaemic heart disease of the            veteran from which the veteran died were caused or contributed to            by the veteran’s operational service in the Australian Army and are            therefore war-caused with effect from 12 June 2003; and

(b)      to remit the matter of assessment of widows’ pension in relation to            the Applicant to the Repatriation Commission.

  …………[Sgd]..……..
  SC Fisher
   Member

CATCHWORDS

VETERANS’ APPEALS – Veteran’s Entitlements Act – Widow’s Pension - hypertension - ischaemic heart disease – war caused injury – operational service – Deledio applied – decision set aside – matter remitted to Repatriation Commission for reassessment of the widow’s pension

Veterans’ Entitlements Act 1986 ss119(1)(g), 120(1), 120(3), 120(4), 120(6), 196B

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Dept. of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Bull v Repatriation Commission [2001] FCA 1832
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Fenner v Repatriation Commission [2005] FCA 27
Grundman v Repatriation Commission [2001] FCA 892
Haughey and Repatriation Commission [2005] AATA 189
Hillier v Repatriation Commission [2004] AATA 897
Kattenberg v Repatriation Commission [2002] FCA 412
Mines v Repatriation Commission [2004] FCA 1331
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Stoddart [2003] FCAFC 300
Secretary, Department of Social Security v Murphy [1998] FCA 809
Schmidt v Repatriation Commission [2004] FCA 1158
Repatriation Commission v Gorton (2001) 110 FCR 321
Woodward v Repatriation Commission [2003] FCAFC 160

REASONS FOR DECISION

2 September 2005   Mr SC Fisher, Member       

Introduction And Background

1.      Mr John Alfred Cree (the veteran) served with the Royal Australian Engineers in Papua New Guinea and Morotai from 31 January 1942 until 1 November 1945  (this service also being classified as operational service).  The veteran died on 11 June 2003 aged 84 years.

Jurisdiction

2.      This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.

The Decision under Review

3.      The decision under review is a decision made by the Repatriation Commission (the Respondent) on 26 November 2003 refusing the claim of Mrs Gwendoline Mavis Cree that the death of her late husband, Mr John Cree, was not service related.  The 27 November 2003 decision was affirmed by the Veterans' Review Board on 10 August 2004.

The Role of the Tribunal

4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.

5.      This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pension and related entitlements.

The Material Before the Tribunal

6.      The following documentary evidence was before the Tribunal:

Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).

Exhibit 2Clinical Notes of Dr Thew dated 30 June 1978.

7.      The Applicant was represented by Mr P Canning of counsel.  Mr Canning was instructed by Sciaccas Lawyers and Consultants.  Exhibits 1 – 2 were lodged on behalf of the Applicant.

8. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975.  These documents were taken into evidence as Exhibit 1.

9.      The Respondent was represented by Mr Jeff Kelly a departmental advocate.  The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.

10.     The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.

Evidence for the Applicant

11.     The Applicant gave evidence in person.  In addition, Dr Gordon Chen, General Practitioner gave evidence for the Applicant.

§  Evidence of the Applicant

12.     The evidence of the Applicant to the Tribunal was as follows:

1. The Applicant said that her husband did not drink any alcohol at all before World War II, not even on social occasions.
2. The Applicant said that she did not see her husband much during World War II.  The Applicant said that she married her husband in 1940.
3. The Applicant said that her husband began to drink during his Army service.
4. The Applicant said that the topic of alcohol consumption was not really discussed with her husband.
5. The Applicant said that after World War II, her husband was "not a heavy drinker really".
6. The Applicant said that her husband drank 2 to 4 glasses of beer per day, and that sometimes he drank more on social occasions but never less than this amount, and certainly never less than 1 glass per day.
7. The Applicant said that her husband did not discuss the war with her.
8. The Applicant said that he had a period where he was Absent without Leave (AWOL), and that he had taken this spell of leave for a short period after she had had a baby.
9. In connection with the salt intake of the veteran, the Applicant said that before the war he had had a "normal" amount of salt of his food, namely a "pinch".
10. The Applicant said that after the war, her husband "used salt heavily", because of the amount he started taking during war service.  The Applicant said that her husband would sprinkle salt on his food after every mouthful.  The Applicant said that she always added salt to the food she prepared from her husband from early on in their marriage.  The Applicant said that she would buy a 500 g packet of salt every fortnight.
11. The Applicant said that her husband had taken blood pressure tablets "most of his life" since his Army service and that the duration of this was "years – numbers of years".

13.     In a Record of Evidence document dated sometime during August 2003 that was completed by the Applicant and which accompanied the claim (Exhibit 1, T4, Folio 20), the Applicant described the salt consumption of the veteran in these terms:

14.     The Applicant stated:

“That my husband was given salt tablets in New Guinea.

He acquired a liking for salt and beer during his service.

He continued to add salt to his meals every day; quite liberally.

In addition, I always added salt to the cooking; but that was not enough for my husband.

He suffered a stroke about 4 years ago.  Dr Lim (Redcliffe) was his doctor at the time.

The stroke caused his dementia.  I nursed him at home until near the end.  Also my husband had blood pressure for years but he still continued to have his beer.

As such, it is my belief that my husband’s death was causally related to war service.”

15.     In an Alcohol Questionnaire (Exhibit 1, T4, Folios 64 -- 65), the Applicant said that when she first met the veteran in 1940, he only drank alcohol "on special occasions" and that the veteran said to the Applicant that he started drinking alcohol "during the war (as he told me)".  Further, the average daily intake of the veteran was 2 – 4 glasses of draught beer per day, and that the reason why he drank alcohol was "war stress".

§  Evidence of Dr Gordon Chen

16.     The evidence of Dr Gordon Chen, Medical Practitioner, to the Tribunal was as follows:

1. Dr Chen said that he had treated the veteran from 1998 – 2003.
2. Dr Chen said that the cause of death of the veteran was as per the death certificate.
3. Dr Chen said that his medical report of 4 November 2003 (Exhibit 1, T4, Folio 19) was correct, particularly in terms of the causes of death.
4. Dr Chen said that the root cause of the veteran’s ill-health was hypertension, which was a long-term problem.
5. Dr Chen said that he did not treat the veteran for his renal failure.
6. Dr Chen said that the dementia the veteran suffered from was ischaemic in origin.
7. Dr Chen said that he agreed with the 22 September 2003 medical report prepared by Dr Lisa Phillips.

Other relevant evidence

17. The Tribunal took note of the following documentary evidence (taken from Exhibit 1, the section 37 documents):

1. In a medical examination held on 28 September 1945, the veteran had blood pressure of 130/80.
2. In a medical examination held on 18 October 1945, the veteran had blood pressure of 120/80.
3. Clinical notes of Dr Thew dated 30 June 1978 recorded the following medical history: (1) hiatus hernia, diagnosed 1968; (2) mild essential hypertension since 1974 -- controlled by medication; (3) gout since 1975, controlled by medication; (4) Peyronie’s disease since 1975; (5) lumbar spondylosis, the onset of which was May 1978; (6) fractures of 3 bones in his right foot in 1974.  A blood pressure reading of 130/100 was recorded.
4. Dr Lisa Phillips, Consultant Geriatrician and Physician, in a report dated 22 September 2003 reported that she was involved in the care of the veteran during his hospitalisation at Greenslopes Hospital in May and June 2003.  Dr Phillips reported further that the veteran was delirious, which was complicated by aspiration pneumonia from which he died.  The veteran's renal failure, constipation and dementia all contributed to the delirium, which was a major contributing factor to the development of his aspiration pneumonia.  Dr Phillips went on to say that she could not say with any certainty whether his delirium was ischaemic in origin or related to Alzheimer's disease.
5. The death certificate of the veteran recorded the causes of death as (a) pneumonia [duration: days]; (b) acute renal failure faecal impaction [duration : weeks] and (c) dementia [duration: years].

Evidence for the Respondent

18.     The Respondent did not call any evidence.

Issue

19. The issue in this case is whether the death of the veteran is war-caused within the meaning of section 8 of the Act.

Applicant’s Submissions

20.     The submissions of the Applicant were to the following effect:

21. Section 8 (b) of the Act provides that the death of a veteran is war caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran.

22.     In the Commissioner’s decision of 26 November 2003 its delegate, G Taylor (“Taylor”), was satisfied that Mr Cree’s death was due to cerebral ischaemia.

23.     Cerebral ischaemia is listed as being a “cerebrovascular accident” for the purposes of the Statement of Principles concerning Cerebrovascular Accident (“the SoP”), Instrument No.52 of 1999.

24.     Clause 5 of the SoP provides minimum factors.  Two of the minimum factors that must exist before it can be said that a reasonable hypothesis has been raised are:

(a) the presence of hypertension before the clinical onset of cerebrovascular accident; or ….

(e) regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident.

25.     In the Commissioner’s decision Taylor said:

(a)“The Statement of Principles states that only alcohol consumed in the year immediately before the onset of cerebral ischaemia can be a cause of this condition.”;

(b)“Because of the first symptoms or signs of cerebral ischaemia did not occur during operational service or immediately after that service, this condition could not have been caused by any consumption of alcohol during operational service.”;

(c)“As the clinical onset of hypertension was several years after discharge any ingestion of salt supplements he have [sic] used during his service did not cause the hypertension”;

(d)“Although there is a history of hypertension which can contribute to cerebral ischaemia, the hypertension is not due to operational service.”

26.     The Applicant submits that, as a basis for deciding that Mr Cree’s death was not war related, the abovementioned statements are wrong in law and fact.  The reasons being:

Consumption of Alcohol

(i)In relation to (a) above the SoP does not state that ‘only alcohol consumed in the year immediately before the onset of cerebral ischaemia can be a cause of this condition’.  The SoP refers to regularly consuming ……alcohol ‘for a continuous period of at least one year immediately before the clinical onset….

(ii)In relation to (b) above neither the Act nor the SoP require symptoms to occur during or immediately after service. The requirement is that death ‘arose out of’ or ‘was attributable to’ eligible war service (see s 8 of the Act).

Hypertension

(iii)In relation to (c) above there was no material before Taylor to suggest that the clinical onset of hypertension was several years after discharge.  The material only established when hypertension was diagnosed.

(iv)Notwithstanding the time of clinical onset is irrelevant as the proper test is whether hypertension ‘arose out of’ or ‘was attributable to’ eligible war service.

(v)Clause 7 of the SoP required Taylor to consider hypertension in accordance with the terms of the SoP concerning hypertension, Instrument No.35 of 2003 (“the Hypertension SoP”).

(vi)Mr Cree’s alcohol intake, as set out in the Alcohol Questionnaire completed by the Applicant on 29 August 2003, was above the minimum required by clause 5 (b) of the Hypertension SoP.

(vii)In addition the Applicant stated that Mr Cree was only a social drinker before the war.  She states that the reason he gave for drinking alcohol afterwards was “war stress”.

(viii)Although Taylor didn’t consider this issue, at paragraph 25 of its decision dated 10 August 2004 the Veteran’s Review Board said (page 61 “T” documents):

“Whilst the applicant has described ‘war stress’, there is no detail available to the Board as to the nature of any stresses the veteran may have experienced.  There is also no suggestion in the documentation that the veteran suffered from alcohol abuse or dependence arising from his eligible service.”

(ix)Although there was a lack of detail as to the nature of any stresses the veteran may have suffered, it is submitted there was evidence in the documentation that Mr Cree was suffering stressors.

(x)Specifically, Mr Cree’s service record has eight entries relating to periods where he was listed as being Absent Without Leave, culminating in a custodial sentence of twenty-one days.

(xi)In addition, the evidence of the Applicant is that, before the war, Mr Cree only drank alcohol on special occasions; however after the war he drank a sufficient quantity of alcohol to satisfy the Hypertension SoP.

27. By sub-section 120(6) of the Act the Applicant was under no onus to prove any details of any stresses Mr Cree was subjected to or details of alcohol dependence arising from his eligible service. Nor was the Commission or the Veteran’s Review Board under an obligation to seek further details. It was open to both to accept the information supplied by the Applicant and the entries in Mr Cree’s service record. The actual details will probably never be known.

It is therefore submitted that the Commission could not negate, beyond reasonable doubt, the possibility that there was a causal relationship between Mr Cree’s eligible war service and his subsequent death (refer East v Repatriation Commission (1987) 16 FCR 517, at 522)

Respondent’s Submissions

28.     The submissions of the Respondent were to the following effect.

29.     The respondent contends that there is no causal relationship between the veteran’s service and his death nearly fifty-eight years after discharge.

30.     As the respondent understands it the applicant’s contended link between service and death is via the contribution of heart disease caused by or hypertension due to service related alcohol and/or salt consumption.  An alternate hypothesis is that the dementia that the veteran suffered from was ischaemic dementia contributed to by a cerebrovascular accident, which in turn is due to hypertension, or service related alcohol consumption.  The respondent refutes such nexus.

31.     Although the veteran did suffer from mild essential hypertension since 1974 it was controlled by medication and, in any event, there is no causal connection between service and this condition.

•Although, prima facie, the late veteran’s applicant’s alcohol consumption (folio 64) probably meets, albeit narrowly, the quantity element in factor 5(b) – as amended – in the appropriate SoP, there is no evidence that this consumption is service related.

•The applicant’s evidence is that the veteran drank on special occasions pre-service.  The respondent submits that the veteran’s consumption after service of 2-4 glasses of beer is well within the social norm.  There is no suggestion that the veteran was suffering from alcohol dependence or abuse, nor is there any suggestion he could not decrease this level of consumption.  Which is also a requirement of factor 5(b).

•There is no evidence that the veteran’s extra salt intake meets the quantity element of factor 5(c).  In any event the respondent submits that salt is non-addictive and the use of it is purely hedonic.  The respondent submits that the use of salt tablets does not cause a liking for an increase in the use of table salt.

32.     In any case the doctor who treated the veteran during his terminal admittance at Greenslopes Hospital does not consider that heart disease played a role in his death.

33.     There is no evidence that the veteran suffered a cerebrovascular accident.  The veteran’s treating doctor (Dr Chen) does not mention this condition in discussion of the veteran’s medical conditions (filed by applicant under cover 4 January 2004 and further at folio 19).

34.     In any event there is no evidence that the dementia that the applicant suffered from was ischaemic dementia.

The Legislation

35. Section 8(1)(b) of the Act provides that the death of a veteran is taken to have been war-caused if that death arose out of, or was attributable to, any eligible war service rendered by the veteran. It was common ground in this appeal that the veteran had rendered operational service, and so rendered eligible war service within the scheme of sections 6 to 6F and section 7 of the Act. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].

36.     In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:

“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”

37. As the veteran has performed operational service, as defined in section 6 of the Act, the determination of whether his conditions of ischaemic heart disease and hypertension are war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:

“120 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.”

38. Authority establishes that when applying section 120(3), decision-makers (including this Tribunal) must look at all the material, not just some of it, that is before the decision-maker, including material that supports and opposes the formation of the reasonable hypothesis. It is not entitled to find facts or reject matters. The decision maker must consider the whole of the material before it – see Bull v Repatriation Commission[2001] FCA 1832 at [21] and Kattenberg v Repatriation Commission[2002] FCA 412 at [38] and [39].

39. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:

“(3)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.

Note: See subsection (4) about the application of this subsection.”

40.     According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.

41. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under section 180A(2) that are relevant to this case, and the parties did not contend to that effect. An SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at 374. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15].

42. Section 196B(14) of the Act sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:

“196B(14)       A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

(b)       it arose out of, or was attributable to, that service; or

(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

(i)        to a place for the purpose of performing duty; or

(ii)       away from a place of duty upon having ceased to perform duty; or

(d)it was contributed to in a material degree by, or was aggravated by, that service; or

(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:

(i)        but for the rendering of that service by the person; or

(ii)but for Chenges in the person’s environment consequent upon his or her having rendered that service; or

(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:

(i)        but for the rendering of that service by the person; or

(ii)but for Chenges in the person’s environment consequent upon his or her having rendered that service; or

(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:

(i)        but for the rendering of that service by the person; or

(ii)but for Chenges in the person’s environment consequent upon his or her having rendered that service.”

Tribunal’s Reasons

Diagnosis

43. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act.

44.     The Delegate of the Respondent who determined the claim of the Applicant made a finding that the death of the veteran was due to cerebral ischaemia (Exhibit 1, T2, page R).  The death certificate of the veteran recorded the causes of death as (a) pneumonia [duration: days]; (b) acute renal failure faecal impaction [duration: weeks] and (c) dementia [duration: years].  The LMO of the veteran, Dr Chen (who gave evidence) was of the opinion that the underlying medical conditions leading to the proximate causes of death of the veteran were hypertension and heart failure.  Dr Chen agreed with the causes of death as specified on the death certificate.  Indeed, given that Dr Chen did not certify the death of the veteran, Dr Chen could not do otherwise.  Dr Chen said that the veteran's main health problems were hypertension and heart failure, and that the dementia he suffered from was ischaemic in origin.

45.     Based upon the evidence before the Tribunal, the Tribunal is reasonably satisfied that the veteran suffered from hypertension and ischaemic heart disease.  The Tribunal is not satisfied that the veteran suffered from cerebral ischaemia.

The Deledio steps

46.     In Deledio the Full Federal Court summarised (at 97-98) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:

“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 a 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.”

47.     The Full Court of the Federal Court made a correction to the second sentence of the above formulation in Bull v Repatriation Commission [2001] FCA 1832 at [14]; (2001) 34 AAR 326 at 330: see Fenner v Repatriation Commission [2005] FCA 27 at [13]. This correction is not material to the present appeal.

48.     Despite occasional deviations (see that noted in the decision of the Full Court of the Federal Court in Hill v Repatriation Commission [2005] FCAFC 23) the four step Deledio template continues to be normative in veterans’ jurisprudence, and it will be followed in this case consistent with the constant and consistent stream of authority in this domain.  The Tribunal noted that the four step Deledio template is cumulative, that is to say it is necessary to satisfy each of the four steps if a veteran's claim is to be accepted as war-caused within the meaning of the Act.

The Mines Preliminary Step

49.     In Mines v Repatriation Commission [2004] FCA 1331 at [37], Gray J made these important observations about the Deledio reasoning process:

“[37]     …The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned.  The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service.  The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other.  There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified.  Their identification is not one of the steps referred to in Deledio.”

50.     Gray J went on to say -

“[38]     …Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” …

51.     This concludes the preliminary or antecedent investigation before the first Deledio step is applied.

52.     Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission [2004] FCA 1331 at [37]. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the Applicant has a medical condition in the nature of a physical ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely hypertension and ischaemic heart disease. The Tribunal is satisfied also that the Applicant rendered operational service in an operational area within section 6A of the Act (this was common ground between the parties).

Application Of The Law To The Injury Alleged To Be War-caused

The first Deledio step

53.     The Tribunal must determine that the material before it gives rise to a hypothesis connecting the disease to the service rendered.  The Applicant's contention is that the medical conditions suffered by the veteran were related to service.  Not unexpectedly, the Respondent contested the granting of this hypothesis, pointing to the gulf in time between the service of the veteran (which ended on 1 November 1945) and the onset of mild essential hypertension which is diagnosed in 1974.

54.     The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g) (see also Fenner v Repatriation Commission [2005] FCA 27 at [26] – [ 29], citing Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153 at [46]; (2003) 74 ALD 37 at 43 per Jacobsen J. and Grundman v Repatriation Commission [2001] FCA 892 at [33]; (2001) 66 ALD 125 at 135 per Gray J). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.

55.     Based upon the evidence before the Tribunal, the Tribunal is satisfied that there is a hypothesis linking the hypertension and ischaemic heart disease suffered by the veteran with his operational service.  The evidence discloses that the veteran acquired a liking for salt during his time in Papua New Guinea because he was given salt tablets (see the record of evidence of the Applicant dated August 2003, Exhibit 1, T4, Folio 20).  Hypothetically, hypertension can result from the ingestion of above-normal levels salt (see, for example, Statement of Principles Instrument No 35 of 2003, clause 5 (c), ignoring for the moment the temporal connection required between salt ingestion and the clinical onset of hypertension).

The Second Deledio Step

56.     The second Deledio step is to determine the relevant SoP.  In this case, the relevant SoPs are:

§Hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004)

§Ischaemic heart disease (Instrument No 53 of 2003, as amended by Instrument No nine of 2004).

The Third Deledio Step: General Considerations

57.     The Tribunal must then determine whether the facts as presented “fit” the SoP.  Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 36. The Tribunal cannot make findings of fact at this point.

58. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the veteran’s condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b) of the Act). The relationship to service must be one of the relationships prescribed in section 196B(14) of the Act: Haughey and Repatriation Commission [2005] AATA 189 at [63].

The Third Deledio Step: Hypertension

59.     Relevant excerpts from Instrument No 35 of 2003 (hypertension), as amended by Instrument No 3 of 2004 (hypertension) are as follows:

“Kind of injury, disease or death

2. (a)This Statement of Principles is about hypertension and death from hypertension.

(b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:

(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or

(ii) the regular administration of antihypertensive therapy to reduce blood pressure,

This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.

….

(d)In the application of this Statement of Principles, the definition of “hypertension” is that given at para 2(b) above.

Factors

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:

….

(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol;

(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;

Other definitions

8.        For the purposes of this Statement of Principles:

“salt supplements” means salt added to food when cooking or eating, or salt contained in salt tablets.”

60.     Factor 5(b) is one that has been substituted by Instrument No 3 of 2004. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. Accordingly, it is the substituted or replacement Factor 5(b) that the Tribunal must use in deciding this appeal.

The Third Deledio Step: Ischaemic Heart Disease

61.     Relevant excerpts from Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease) are as follows:

“Kind of injury, disease or death

2. ….

(b)For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.

Factors

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:

(a) the presence of hypertension before the clinical onset of ischaemic heart disease.”

§  The discussion of the medical evidence and the SoP

62.     The chain of reasoning that the Tribunal proceeds with in this case is that the Applicant contended that her husband's salt consumption and alcohol consumption caused his hypertension which in turn caused his ischaemic heart disease and ultimately his dementia.

63.     The documentary evidence of salt consumption of the veteran comes from Exhibit 1, T4, Folio 20.  In her oral evidence, the Applicant said that after the war, her husband "used salt heavily", because of the amount he started taking during war service.  The Applicant said that her husband would sprinkle salt on his food after every mouthful.  The Applicant said that she always added salt to the food she prepared for her husband from early on in their marriage.  The Applicant said that she would buy a 500 g packet of salt every fortnight.  The duration of this level of salt acquisition by the Applicant was not stated in evidence.  The Tribunal calculates that 500 g of salt purchased every fortnight would entail using 35.7 g per day (whether through being added to food during cooking or to food during consumption).  Whether packages of salt have been sold in Australia in 500 g lots since end of World War II, or some other pre-packaged quantity (such as 1 pound or 457 grams), was not a matter that was in evidence before the Tribunal.  The evidence before the Tribunal suggests that the veteran consumed heavy amounts of salt, certainly after the end of his military service.  The SoP requires ingesting 12 grams of salt supplements per day, and that this level of consumption continues for a period of at least six months immediately before the clinical onset of hypertension.  Even if salt consumption of 35.7 g per day is excessive (as appears to be the case to the Tribunal, especially in the absence of any quantitative calculations made by or on behalf of the Applicant), the Tribunal is prepared to accept that the veteran ingested at least 12 grams of salt supplements per day for a period of at least six months immediately before the clinical onset of hypertension in 1974, based primarily on the evidence of the Applicant about her salt purchases each fortnight.

64.     The Tribunal considers next the evidence of the alcohol consumption of the veteran. In an Alcohol Questionnaire (Exhibit 1, T4, Folios 64 – 65), the Applicant said that when she first met the veteran in 1940, he only drank alcohol "on special occasions" and that the veteran said to the Applicant that he started drinking alcohol "during the war (as he told me)".  Further, the average daily intake of the veteran was 2 – 4 glasses of draught beer per day, and that the reason why he drank alcohol was "war stress".  There was no precise evidence before the Tribunal that enabled it to translate the consumption of alcohol of the veteran into the quantitative measure contemplated by Factor 5(b) of SoP No 35 of 2003 (as amended by SoP No 3 of 2004).  The Respondent begrudgingly conceded in its submissions that the quantity of alcohol consumed by the veteran probably satisfied, albeit narrowly, the quantity element.  There was no evidence of any other attempts on the part of the veteran to decrease his alcohol consumption as contemplated by Factor 5(b).  Based on the concession of the Respondent, the Tribunal is prepared to find that the alcohol consumption of the veteran satisfied the quantitative measures contained in SoP No 35 of 2003 (as amended by SoP No 3 of 2004), and that this consumption of alcohol took place at the time of the clinical onset of hypertension.

65.     The evidence before the Tribunal establishes that in a medical examination held on 28 September 1945, the veteran had blood pressure of 130/80, and that in another medical examination held on 18 October 1945, the veteran had blood pressure of 120/80.  These blood pressure readings are within the norm, and certainly do not reach the systolic or diastolic readings for hypertension mentioned in clause 2(b)(i) of SoP No 35 of 2003.  Accordingly, the veteran was not hypertensive in late 1945.  The earliest and most reliable medical evidence before the Tribunal establishes that the veteran suffered from hypertension "since 1974" (Exhibit 2).  The Applicant contended that there was no evidence before the Tribunal about the timing of the clinical onset of hypertension, only when it was diagnosed.  The Tribunal disagrees with this contention, pointing to Exhibit 2 where the existence of hypertension is noted since 1974.  There is no medical evidence in this case pointing to an earlier date of onset of hypertension.  Clearly, at the end of his military service, the veteran was not hypertensive.  The hypertension of the veteran began only in 1974.

66.     Clause 4 of the each of the SoP identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the meaning of clause 7 of the SoP. What is disputed (as was argued in effect by the Respondent) is whether the Applicant developed hypertension or ischaemic heart disease because of his operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of the each of the SoP does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.

67.     In effect, the Applicant pinned her case upon establishing that her husband's war service caused his alcohol consumption and salt consumption, that he became hypertensive as a result which led ultimately to his ischaemic heart disease which in turn led to his dementia.  Clause 4 of the each of the SoP identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.  There is a plausible link between the alcohol consumption and the salt consumption of the veteran and his relevant service because the evidence establishes that his heavy salt consumption and his alcohol consumption began during his military service.  That plausible link can be subsumed within the concept of a relationship contemplated by clauses 4 and 5 of the SoP.  The Tribunal considered carefully the delayed onset of hypertension in the case of the veteran (1974) and the end of his military service in 1945.  Even though the veteran was not hypertensive on his discharge from the Army, he did begin to consume salt and alcohol during his military service and maintained these levels of consumption at levels recognised by the relevant SoPs as hypothetically and reasonably causative of his hypertension.  Using a commonsense approach to causation, including consideration of the factor that single as well as multiple causes can lead to designated effects, the Tribunal is satisfied that there is the necessary linkage or relationship between salt consumption and alcohol consumption of the veteran and his conditions of ischaemic heart disease and hypertension.  Accordingly, the Tribunal is satisfied that a reasonable hypothesis has been raised connecting the hypertension of the Veteran to his military service (in this case, operational service).

The fourth Deledio step: findings of fact

68. As the Tribunal has determined that both of the hypotheses fit within the SoP templates, it is then necessary for the Tribunal to proceed to engage in fact-finding. The Tribunal must then proceed to consider under section 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. In this case, the Tribunal is not satisfied beyond reasonable doubt that the death of the veteran was not war-caused.

The fourth Deledio step: findings of fact concerning hypertension and ischaemic heart disease

69.     Where the Tribunal is not satisfied beyond reasonable doubt that the death of the veteran was not war-caused, then the fourth Deledio step requires the Tribunal 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.

70. Accordingly, the Tribunal is to decide the issue of liability for the veteran’s hypertension and ischaemic heart disease to its reasonable satisfaction in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. The relevant SoP have been identified above as Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease) and Instrument No 35 of 2003 (hypertension), as amended by Instrument No 3 of 2004 (hypertension).

71.     Based upon the evidence before it, the Tribunal made the following findings of fact:

1. Mr John Alfred Cree (the veteran) served in the Royal Australian Engineers in Papua New Guinea from 31 January 1942 until 1 November 1945 (also a period of operational service).
2. Gwendoline Mavis Cree married the veteran on 19 October 1940.
3. In a medical examination held on 28 September 1945, the veteran had blood pressure of 130/80.
4. In a medical examination held on 18 October 1945, the veteran had blood pressure of 120/80.
5. Clinical notes of Dr Thew dated 30 June 1978 recorded the following medical history: (1) hiatus hernia, diagnosed 1968; (2) mild essential hypertension since 1974,- controlled by medication; (3) gout since 1975, controlled by medication; (4) Peyronie’s disease since 1975; (5) lumbar spondylosis, the onset of which was May 1978; (6) fractures of 3 bones in his right foot in 1974.  A blood pressure reading of 130/100 was recorded.
6. The veteran died on 11 June 2003.
7. Dr Lisa Phillips, Consultant Geriatrician and Physician, in a report dated 22 September 2003 reported that she was involved in the care of the veteran during his hospitalisation at Greenslopes Hospital in May and June 2003.  Dr Phillips reported further that the veteran was delirious, which was complicated by aspiration pneumonia from which he died.  The veteran's renal failure, constipation and dementia all contributed to the delirium, which was a major contributing factor to the development of his aspiration pneumonia.  Dr Phillips went on to say that she could not say with any certainty whether his delirium was ischaemic in origin or related to Alzheimer's disease.
8. The Applicant lodged a claim for the widows' pension on 19 August 2003 seeking acceptance of the death of her husband as being service related.
9. In an Alcohol Questionnaire (Exhibit 1, T4, Folios 64 -- 65), the Applicant said that when she first met the veteran in 1940, he only drank alcohol "on special occasions" and that the veteran said to the Applicant that he started drinking alcohol "during the war (as he told me)".  Further, the average daily intake of the veteran was 2 – 4 glasses of draught beer per day, and that the reason why he drank alcohol was "war stress".
10. The alcohol consumption of the veteran was an average of at least 200 grams per week of alcohol for a continuous period of at least six months immediately before the clinical onset of hypertension.
11. The veteran consumed at least 12 grams of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension in 1974.
12. The death certificate of the veteran recorded the causes of death as (a) pneumonia [duration: days]; (b) acute renal failure faecal impaction [duration: weeks] and (c) dementia [duration: years].

Tribunal’s Conclusion

72.     The Tribunal concludes that the veteran’s death was caused by or contributed to by service-related hypertension and ischaemic heart disease.

Tribunal’s Decision

73.     For these reasons, the Tribunal decides:

(a)to set aside the VRB decision under review of 10 August 2004 (affirming a decision of the Repatriation Commission dated 26 November 2003) and in substitution the Tribunal finds that the conditions of hypertension and ischaemic heart disease of the veteran from which the veteran died were caused or contributed to by the veteran’s operational service in the Australian Army and are therefore war-caused with effect from 12 June 2003;

(b)to remit the matter of assessment of widows’ pension in relation to the Applicant to the Repatriation Commission;

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member

Signed:         Jeff Mills

Legal Research Officer

Date/s of Hearing  18 May 2005
Date of Decision  2 September 2005

Counsel for the Applicant         Mr P Canning
Solicitor for the Applicant          Sciaccas Lawyers and Consultants
For the Respondent                  Mr J Kelly, Departmental Advocate