Cummins and Repatriation Commission
[2002] AATA 1142
•6 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1142
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/926
VETERANS' APEALS DIVISION )
Re JOYCE CUMMINS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date6 November 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and decides that the late Mr Cummins' hypertension is a service-related disability and that the circumstances of his death were war-caused. Joyce Cummins is entitled to receive a war widow's pension with effect from 3 August 2000.
..................(Sgd).......................
Dr E K Christie
Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – war widow's pension – ischaemic heart disease – hypertension and salt consumption – whether Statement of Principles satisfied – cerebrovascular accident - whether reasonable hypothesis – related to service – scientific inferences and causation
Veterans' Entitlement Act 1986 ss 8, 119(1)(h), 120, 120A
Re Beitz and Repatriation Commission [2002] AATA 987
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
Kattenberg v Repatriation Commission [2002] FCA 412
Mason v Repatriation Commission [2000] FCA 1409
Re Paint and Repatriation Commission [2000] AATA 709
Repatriation Commission v Bey (1997) 47 ALD 481
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v McKenna (1998) 28 AAR 7
Re Ross and Repatriation Commission [2002] AATA 497
Statement of Principles
No 38 of 1999
No 52 of 1999
No 31 of 2001
REASONS FOR DECISION
6 November 2002 Dr E K Christie, Member
This is an application by Joyce Cummins to review a decision of the Veterans' Review Board ("the VRB") of 10 September 2001 which refused the claim of Mrs Cummins that the death of her husband was causally related to the circumstances of his eligible service.
In reaching its decision the VRB concluded that the material before it did not raise a reasonable hypothesis with respect to the following elements:
(a)that the late Mr Cummins developed a salt habituation during operational service because he was required to take salt tablets during this period; and
(b)that this habit continued for the rest of his life as he added large amounts of salt to his food; and
(c)that this habit resulted in hypertension which in turn lead to the myocardial infarction and cerebrovascular accident.
At the hearing Joyce Cummins was represented by Mr D O'Gorman 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.
At the commencement of the hearing, the Tribunal advised the parties that the application for review was in a reasonably analogous situation in relation to the facts with Re Beitz and Repatriation Commission [2002] AATA 987.The Beitz case was heard by the presiding Tribunal Member but, at the time of the hearing of this matter, the decision had not been handed down. In this application for review, as well as in Beitz, the respondent relied on the same expert report on salt intake/preference interrelationships prepared by Dr J Kenardy titled "Background Report: Veterans' Affairs Consultancy" (7 September 2000). In their Statement of Facts and Contentions, neither party indicated a need for Dr Kenardy's evidence to be examined before the Tribunal. Accordingly, the Tribunal gave the parties access to the transcript of Dr Kenardy's evidence in Beitz – including the Tribunal's questions to Dr Kenardy, and then sought a response on whether Dr Kenardy should be called to give further oral evidence in the instant case. Following their review of the transcript, Mr O'Gorman and Mr Smith acknowledged that they did not wish to examine Dr Kenardy.
The applicant tendered three witness statements (Exhibits A1, A2 and A3). Mr Smith advised the Tribunal that he only wished to cross-examine Mrs Cummins (the applicant) and Ms Rosenlund (Mrs Cummins' daughter). Consequently, John Cummins' was not required for cross-examination by Mr Smith and his statement was admitted into evidence (Exhibit A3).
Issues to be DecidedThe only issues for the Tribunal to decide were whether the late Mr Cummins' death was causally related to the circumstances of his eligible service: section 8, Veterans' Entitlement Act 1986.Specifically, the connection between operational service, ischaemic heart disease, cerebrovascular accident, hypertension and salt intake; and in turn whether Mrs Cummins was entitled to a war widows' pension.
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 recorded the four stages as follows (at 206):
"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 said (at 534):
"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". The Court said (at 490):
"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."
Facts
The general facts were not in dispute and may be stated briefly.
The late Mr Cummins was born on 22 March 1920 and died on 2 August 2000. The causes of death recorded on the Death Certificate were "1(a) Myocardial infarction (b) Hypertension; 2 Aspiration, pneumonia, cerebrovascular accident" (Exhibit R1, Folio 8). Mr Cummins had no "service related disabilities".
Mr Cummins served in the Australian Army from December 1941 to November 1944. Because he served in the Darwin area for the period of service from 23 June 1942 until 1 July 1943 the whole of his service constituted operational service as defined in the Act (Exhibit R1, Folio "H").
Examination of the Evidence
Evidence of Joyce Cummins
Mrs Cummins was the widow of the late veteran. Mr and Mrs Cummins met in 1947 and were married in 1954.
Mrs Cummins said that her late husband used a great deal of salt in his meals and always covered the food on his plate with salt before tasting it. She thought that the amount of salt her late husband continued to apply to his meals to be excessive. She said that each plateful of food he consumed for his three main meals each day were heavily salted to the point where salt was clearly visible on the food. In addition, the late Mr Cummins would also add salt to cheese.
Mrs Cummins said that both she and her daughter continued to warn her late husband of the health problems associated with high salt use. However, she said that his only reply was that salt "was good for him" and that he had consumed salt during the war in high amounts and had been told, at this time, that it was good for him. As a result, the late Mr Cummins would not reconsider his use of salt.
Mrs Cummins acknowledged that there may have been some problems in estimating the amount of salt her late husband added to his food each day as it was not measured out. She said that some knowledge of the amount added could be made from the frequency she refilled salt shakers in her home ("one large and one small shaker").
Based on her visual assessment of the "12g salt vial", and her knowledge of her late husband's use of added salt to all three main meals, Mrs Cummins stated that her late husband would consume 12g of salt each day.
Under cross-examination in relation to a questionnaire she had completed on 30 July 2001 (Exhibit R1, Folio 21), Mrs Cummins said that she had understood the Question [4] she answered to mean how much salt did her husband add when preparing his food, only. She had answered 1½ teaspoons. However, she said that she did not indicate in this answer how much salt her late husband then added to the prepared meal. She said that the late Mr Cummins would add further salt to each plate of prepared food.
Evidence of Christine Rosenlund
Ms Rosenlund said that her late father always heavily salted his food - even if the food had already been salted. As an example, she said that even if she made her late father a sandwich that had been salted, he would add further salt to it. She said that the food her late father had salted would be covered with white granules and the white salt colour was visible. She said that her late father "always ate heaps of salt up until the very end".
Ms Rosenlund stated that she had studied nutrition in an Advanced Diploma of Health Science she had completed and, as a result, had expressed concern to her late father that the amount he used was unhealthy. She said that he had replied that salt was good for you and was good for cramps. He had also said that he had been given salt tablets during the war.
Ms Rosenlund said that following her late father's coronary bypass in 1987 he had been given medical advice to reduce his salt intake. He had used potassium chloride/sodium chloride as a replacement for salt [sodium chloride] but had used more of this "replacement salt", than normal salt.
Based on her knowledge of the salt added to his meals by her late father and her visual assessment of the "4.5g (or 1 teaspoon) salt vial' and "12g salt vial", Ms Rosenlund said that her late father would have added 12g salt to his meals each day.
Contentions and Submissions of the PartiesMr O'Gorman submitted that :
(a)The late veteran's hypertension caused, or contributed to his myocardial infarction and cerebrovascular accident which, in turn, caused or contributed to his death; and
(b)There was a reasonable hypothesis connecting the late veteran's hypertension with his service in the Australian Army during World War II. Specifically, that Factor 5(a) of both the Statement of Principles concerning Ischaemic Heart Disease (Instrument No 38 of 1999) and concerning Cerebrovascular Accident (Instrument No 52 of 1999) would be satisfied if hypertension was present before the clinical onset of the conditions.
Mr O'Gorman then contended that the hypothesis that applied in this application for review was that the late Mr Cummins' hypertension was caused or contributed to by his consumption of salt and that his intake of salt was service related.
Mr O'Gorman submitted that the relevant period to consider under the hypertension SoP (No 31 of 2001) with respect to the threshold intake of 12g of salt per day was the six month period before the clinical onset of Mr Cummins' hypertension. In this regard the medical opinion of the Departmental Medical Officer, Dr R McKay of 11 March 1991, was relevant as it placed the onset of the late veterans' hypertension in or about 1970. (Exhibit R1, Folio 28).
Mr O'Gorman contended that the factual evidence to support a conclusion that the late Mr Cummins consumed at least 12g salt each day could be adduced from the following materials:
(a)The evidence of the applicant that the late Mr Cummins covered his plate with salt and that all of his meals were heavily salted to the point where salt was clearly visible on his food. In addition, (i) her evidence relating to the questionnaire she had completed relating to the amount of salt he had added whilst preparing his food (1½ teaspoons) (Exhibit R1, Folio 21). As well as (ii) her oral evidence based on a comparison of a visual estimate of 12g salt and her knowledge of salt added to his food, each day, by her late husband;
(b)The evidence of the late veteran's daughter, Christine Rosenlund based on her oral evidence as to the amount of salt her late father added to meals each day, as well as her response to the questionnaire she had completed relating to the amount of salt he had added in preparing his food (2 teaspoons) (Exhibit R1, Folio 22). Furthermore, her oral evidence based on her comparison of a visual estimate of 12g salt and her knowledge of salt added to his food, each day, by her late father;
(c)The statement of the late veteran's brother, John Cummins (Exhibit A3) based on his knowledge of the pattern of salt intake by the late veteran after service, the daily use of salt as added to his meals and visual comparison of the amount of salt consumed each day by the late veteran in relation to a measured amount of 12g salt shown to him;
(d)The answers given in the questionnaire relating to the amount of salt used by the late veteran in preparing his meals as answered by his son-in-law, AJ Rosenlund ("2 teaspoons"; Exhibit R1, Folio 23) and his stepson, RJ Williamson ("2 teaspoons", Exhibit R1, Folio 24); and
(e)The expert opinion of Dr Kenardy that the consumption of salt was habit forming.
In terms of the late veteran's consumption of salt during service, Mr O'Gorman submitted that such evidence could be adduced from the following statements:
(a)The letter of Mrs Cummins (30 July 2001) that stated that her late husband had told her that he had been given salt tablets in Darwin. However, she was unsure of the number taken (Exhibit R1, Folio 23); and
(b)The statements of two soldiers who served with the late veteran in Darwin that described salt tablets being routine issues to the Unit, with a requirement that they be taken (AJ McNamara, Exhibit R1, Folio 25). Moreover, that salt tablets were taken regularly for the entire fourteen month period of service in Darwin (VF Melrose, Exhibit R1, Folio 26).
Mr O'Gorman concluded with the submission that the habit of the late Mr Cummins to consume at least 12g of "salt supplements" in the post-service period was contributed to in a material degree, or was aggravated by, his operational service. Furthermore, Mr O'Gorman contended that any consideration of the contribution of operational service to a post-service increase in salt consumption did not require the whole of the increase to be service-related.
Mr Smith submitted that there were uncertainties in the factual evidence with respect to the quantities of salt consumed over time. In addition, factual problems establishing that salt intake during operational service was a contributing cause to incapacity or death.
Mr Smith submitted that, in terms of the quantities of salt consumed over time, reasonable estimates would be required of:
(a)Salt consumption before eligible service;
(b)Salt consumption on eligible service and, in particular, the year spent in the Northern Territory, where the late veteran consumed salt tablets; and
(c)Salt consumption after eligible service and, in particular, in the six months before the clinical worsening of hypertension.
Mr Smith submitted, that in terms of pre-service consumption of salt, the late veterans was not on a salt free diet and contended that he would have shared the same moderate level of salt consumption as his family.
With respect to consumption of salt during service, Mr Smith contended that the evidence from the questionnaire completed, some 60 years later, by three soldiers who served with the late veteran in Darwin (Exhibit R3) was vague and contradictory, and made no reference to the quantity of salt consumed.
Mr Smith submitted that the estimates of salt consumed by the late Mr Cummins in the post-service period (Exhibit R1, Folio 21-23) were piecemeal and did not refer to measured amounts of salt. Mr Smith said that the evidence of Mrs Cummins, Ms Rosenlund and the late veteran's brother's statement gave an estimate of at least 12g salt being consumed per day. However, even at this level, the increase post-service would still be less than 12g.
It was Mr Smith's contention that the late veteran commenced a salt habit in childhood, like everybody else. Even if his service contributed to a post-service increase in consumption, it did not necessarily follow that the whole of the increase was service related. In addition, salt consumption pre-service was not service related at all.
Mr Smith submitted that the little weight should attach to the oral evidence of family members that the late Mr Cummins defended his daily salt intake by claiming that the Army had told him that salt was good for him. He submitted that such a response was likely to be a rationalisation of his salt habits – rather than the cause of it.
Mr Smith then referred to the expert report of Dr Kenardy (Exhibit R2). Mr Smith said that Dr Kenardy had concluded that salt consumption was not an addiction and, except in rare cases, was not driven by physiological needs, but by personal preference. This preference was determined early in life, but could be changed by experience.
Mr Smith then referred to research studies reviewed by Dr Kenardy at page 5 of his consultancy report (Beauchamp, 1987; Bertino, Beauchamp and Engelman, 1986) involving studies with humans on the effects of altering the amounts of salt in their diets. Dr Kenardy had concluded that salt consumption was influenced by hedonistic preference. That is, people get used to the taste of salt, and then start to enjoy it. An increase in table salt increased the subjects' preference for higher concentrations of salt, but salt tablets did not. Essentially, salt tablets, of whatever kind, could not increase a person's preference for salt.
Mr Smith then referred to page 10 of Dr Kenardy's consultancy report where he once again referred to the Bertino, Beauchamp and Engelman (1986) study. Based on this study, Dr Kenardy had concluded that, although increased exposure to crystalline salt did result in an increased salt preference, the preference increase was only about 50% of the amount to which the subjects were exposed. Dr Kenardy had also indicated that exposure to very high amount was likely to be aversive. In the context of the SoP, Mr Smith contended that this would mean that, in order to increase the late veteran's salt preference by 12g/day, the late veteran would have to be fed on service 24g/day over and above the amount he was accustomed to in civilian life.
Mr Smith contended that by applying the conclusions of Dr Kenardy, it was highly unlikely that any service diet was so salty, or that it would have induced a liking for salt in the consumer. He contended that, in fact, it was most likely it would have rendered the food unpalatable.
It was Mr Smith's contention that, based on the available evidence, it was unlikely that the late veteran's actual salt consumption came to 12g/day in toto, and highly unlikely that it represented a 12g/day increase over his pre-enlistment consumption. In any case, he submitted that the evidence indicated that the amount consumed on service was much less than the amount required to effect a change in personal preference of this magnitude – even assuming that sucking salt tablets could lead to a taste for salt on food.
Mr Smith further submitted that the meaning of "salt supplement" as defined in SoP No 25 of 1999 viz "salt added to food when cooking or eating, or salt contained in salt tablets" excluded the natural salt content of raw food, but that it included salt contained in processed food. Consequently, he contended that when all sources of salt in the late veteran's diet were considered (that is salt added to food when cooked, salt supplements, processed food) for the pre-service and post-service periods, any contention for changing salt preference and intake based on "but for" or "material contribution" arising from service, that caused the late veteran to increase his salt consumption by a full 12g due to service, would fail.
Mr Smith concluded with the submission that based on;
(a)the uncertainty associated with the amounts of salt consumed by the late veteran in the pre-service, service and post-service periods; and
(b)the conclusions in Dr Kenardy's consultancy report with respect to increased salt preference and the proportional changes in the amount of salt consumed,
the connection between hypertension, salt consumption and the threshold amount of salt consumed in the post-service period could not be satisfied at the requisite level of proof.
Consideration of the Issues
The Tribunal has adopted the four stages in Repatriation Commission v Deledio considering whether the late Mr Cummins' contentions of hypertension, ischaemic heart disease and cerebrovascular accident 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 report of Dr McKay (Exhibit R1, Folio 28) refers to the late Mr Cummins' being treated for hypertension since 1970. The report also records that his blood pressure on discharge was 125/75 (Exhibit R1, Folio 19), a figure below the threshold baseline blood pressure in SoP No 38 of 1999. The report of Dr McKay also refers to the late Mr Cummins having a four-way coronary bypass in 1987. The information and evidence before the Tribunal of fellow soldiers during service and his family members indicates that the late Mr Cummins ingested salt tablets during service as well as continuing to consume large amounts of salt, daily, in the post-operational service period.
Accordingly, the Tribunal considers that there is sufficient material before the Tribunal that points to a hypothesis that connects hypertension, ischaemic heart disease and the cerebrovascular accident with the circumstances of operational service. Specifically, the intake of salt during operational service.
It was common ground between the parties that the only relevant risk factor for ischaemic heart disease and cerebrovascular accident was hypertension.
Whether a SoP is in Force
The following SoP's are in force that are relevant to this application for review:
(a)Ischaemic Heart Disease: Instrument No 38 of 1999; and
(b)Cerebrovascular Accident: Instrument No 52 of 1999, as amended by Instrument No 30 of 2002; and
(c)Hypertension: Instrument No 31 of 2001 that revoked Instrument No 25 of 1999.
Whether the Hypothesis Raised is a Reasonable One
The Tribunal concludes that the hypothesis identified in paragraph 5 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 states:
"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; or … (emphasis added)
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 52 of 1999: "Cerebrovascular Accident". Factor 5(a) states:
"5(a) The presence of hypertension before the clinical onset of cerebrovascular accident"; where at paragraph 8 'hypertension' is given a meaning analogous to the meaning defined in SoP No 38 of 1999, 'Ischaemic Heart Disease".
(iii) 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);"
(iv) 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);
(b) 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 the late Mr Cummins' ischaemic heart disease condition satisfies Factor 5(a) of the SoP No 38 of 1999.
The medical report of Dr McKay (Exhibit R1, Folio 28) makes it clear that had he been treated for hypertension since 1970 and that this data predated the clinical onset of ischaemic heart disease - as can be adduced from the date of the coronary bypass surgery and subsequent death from ischaemic heart disease (see para 51). The information before the Tribunal also indicates that the late Mr Cummins did not have an elevated baseline blood pressure on discharge (see para 51).
The evidence before the Tribunal (Exhibit R1, Folio 28) also makes it quite clear that the late Mr Cummins satisfies the SoP requirement with respect to the meaning of hypertension:
"the administration of antihypertensive treatment."
A similar conclusion can be made with respect to Factor 5(a) of the "Cerebrovascular SoP". Hypertensive treatment since 1970 predated the late Mr Cummins' death through a cerebrovascular accident in 2000. Furthermore, a similar conclusion can be made that the late Mr Cummins satisfied the SoP requirement for hypertension in that "treatment for hypertension [was] administered."
However, for Factor 5(a) of SoP No 38 of 1999 ("Ischaemic Heart Disease") and SoP No 52 of 1999 ("Cerebrovascular Accident") to be satisfied, the Tribunal must determine whether the "Hypertension SoP" is also satisfied. Specifically, the contribution of salt consumption during the late Mr Cummins' operational service to his post-service conditions of hypertension, ischaemic heart disease and cerebrovascular accident - 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.
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 effects of any change in salt intake by the late Mr Cummins during operational service, relative to his subsequent post war behaviour with respect to salt intake becomes a central issue. The resolution of this issue is a function of:
(a)expert opinion on the effects of variations in salt consumption on preference levels, and amount of salt consumed, over time;
(b)the patterns of salt intake over time. That is, prior to operational service, during operational service and for the post operational service period – as can be adduced from the evidence before the Tribunal; and
(c)estimates of the amount of salt consumed daily, in the post-operative service period and specifically in the six month period immediately prior to the accurate determination of hypertension.
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 at para 59.
With respect to the meaning of "salt supplement" as defined in the hypertension SoP, a preliminary issue has been raised by the respondent. Mr Smith has contended that the concept also refers to the salt contained in processed or commercially produced food – as well as the "salt added to food when cooking or eating or salt contained in salt tablets".
A similar issue of interpretation in relation to the meaning of "salt supplement" arose in Re Ross and Repatriation Commission [2000] AATA 497 wherein the Tribunal concluded:
"62. ….. As we understand the definition, we are only required to consider the salt that is 'added to food when cooking or eating'. In this enquiry – and upon the basis that there is no evidence of any consumption of salt tablets subsequent to discharge – we confine ourselves only to salt which was added to food when cooking or eating."
Accordingly, the Tribunal has adopted the same approach as Ross' case with respect to the meaning given to "salt supplements'. That is, the Tribunal need only consider the salt "added to food when cooking or eating or salt contained in salt tablets".
Evaluation of Expert Opinion on the Relationship between Changes in Salt consumption, Salt Preference Levels and Amount of Salt Consumed
The respondent has relied on the expert opinion of Dr Kenardy, in relation to his report (Exhibit R2) in this regard, to support their contentions that Factor 5(c) was not satisfied. Because of the procedural steps taken by the Tribunal to make the parties aware of the examination of evidence by Dr Kenardy in Beitz' case (see para 5) resulting in:
(a)the response of each party to decide to not call Dr Kenardy to give further evidence; and
(b)a reliance by the respondent on exactly the same consultancy report prepared by Dr Kenardy as tendered in Beitz' case;
no further expert evidence on the salt preference/salt consumption/amount of salt interrelationships was given before the Tribunal, in this application for review.
Accordingly, against this factual background, the Tribunal does not have any reason to depart from the findings it made, in relation to Dr Kenardy's consultancy report, as for Beitz' case.
In Beitz the Tribunal made the following findings:
"66. 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 (para39): 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).
67. 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).
68. 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).
69. 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.
70. 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."
71. 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 makes the same conclusions as to the weight to be given to Dr Kenardy's expert opinion as applied in Beitz' case, as well as its application to a similar fact situation that arises in the late Mr Cummins' circumstances.
Evaluation of Lay Evidence with Respect to the Pattern of Salt Intake Over Time
Next the Tribunal considers whether Factor 5(c) of SoP No 31 of 2001 ("Hypertension") is satisfied based on the information before the Tribunal in the form of lay evidence, with respect to the consumption of salt by the late Mr Cummins over time.
The only evidence of the late veteran's salt intake during his early years – given that he first met his wife in 1947 - is the uncontested evidence, contained in the statement of his brother, John Cummins (Exhibit A3). John Cummins states that when he and the late veteran were young "there used to be a bit of salt in the food due to lack of refrigeration". However, in contrast in the post operational service period, up to 1957, when they lived together, John Cummins says that "he [the late veteran] ate a fair bit [of salt]" and that he had "used to put a lot of salt on his food in those days [later stated to be at least 12 g/day]". The Tribunal considers these observations to be important because if there had been heavy salt use by the late veteran within the family home prior to enlistment, then John Cummins' statement on salt intake following operational service would not have been as significant.
Next the Tribunal considers the evidence of the late veteran's fellow soldiers who served with him in the 42nd Battery in Darwin in 1942-43. Because of the passage of time, there are some difficulties in evaluating some of these statements with respect to the intake of salt tablets by the late Mr Cummins during operational service. Consequently, the Tribunal has applied subsection 119(1)(h) and adhered to the principle outlined by Weinberg J in Mason v Repatriation commission [2000] FCA 1409: that is, that this paragraph cannot be used to invent evidence that may serve to establish the necessary connection between an injury and war service.
Consequently, the Tribunal has only considered the evidence contained in the statements of these soldiers who did not qualify their answers to the questionnaire with some form of uncertainty. Adopting this approach, the Tribunal makes the following conclusions:
(a)that salt tablets were routinely issued to the late veteran's Unit and taken regularly (Exhibit R1, Folio 25);
(b)that salt tablets were taken for the entire duration of service (Exhibit R1, Folio 26);
(c)that the salt tablets were swallowed with water, sucked or taken at meal time with food; and
(d)two to three salt tablets were taken each day (Exhibit R3).
In evaluating the evidence on salt intake, following operational service, the Tribunal, firstly, makes a finding on the credibility of Joyce Cummins and Christine Rosenlund. The Tribunal finds Mrs Cummins and Ms Rosenlund to be witnesses of truth and accepts their evidence with respect to the high daily intake of the late Mr Cummins. Furthermore, the Tribunal finds that this high daily intake was maintained throughout the post-operational service period.
Given the above finding, the Tribunal accepts that the late Mr Cummins heavily added salt to food when cooking or eating throughout the post-operational service period.
Evaluation of Lay Evidence on the Estimated Amount of Salt Intake Immediately Before the Clinical Onset of Ischaemic Heart Disease and/or Cerebrovascular Accident
It is clear that unless the late veteran did ingest at least 12 g of salt per day for a continuous period of six months, before the clinical onset, the application will fail.
Accordingly, the Tribunal 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 the late Mr Cummins "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 (1970)".
Because of the limitations in the 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.
Some visual appreciation of the quantity of salt was the method relied on by Mr O'Gorman in order to comprehend the evidence of Mrs Cummins and Ms Rosenlund in relation to the amount of salt ingested each day by the late veteran. A similar approach was adopted by the Tribunal, in exerting its inquisitorial powers, in Ross' case.
In order to find, as a fact, whether the late Mr Cummins ingested at least 12g of salt – as added to food when cooking or eating – the Tribunal can do no more than to have regard to the sworn evidence of Mrs Cummins and Ms Rosenlund, together with the uncontested evidence of John Cummins.
Given:
the Tribunal's findings as to the credibility of the evidence given by Mrs Cummins and Ms Rosenlund;
their knowledge of the late veteran's daily intake of salt as added to food when cooking or eating (paragraphs 21, 24, 25, 26); and
their estimate of the amount of this daily intake of salt by a visual comparison with measured quantities of 4.5g and 12g (paragraphs 24, 29);
the Tribunal finds that the late Mr Cummins did ingest at least 12g of "salt supplements" per day throughout the post service period. The uncontested evidence of John Cummins (Exhibit A3) corroborates this finding.
Given this finding, the Tribunal further concludes that the evidence of Mrs Cummins and Ms Rosenlund establishes that the late veteran continued to consume salt at this rate per day within the six month period before the clinical onset of ischaemic heart disease in 1987, the time he had coronary bypass surgery.
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 the pattern of salt intake by the late Mr Cummins increased following enlistment because of exposure to regular, high daily intakes of "salt supplements" (salt tablets) during operational service;
(b)that this high salt intake continued after service, through salt added to food when cooking or eating, because of sensory or hedonic processes (through acquiring a taste for salt) that arose from the late veteran's regular pattern of salt intake in the form of salt tablets for the entire duration of service;
(c)that the late veteran's consumption of high amounts of "salt supplements" continued throughout the post-service period (paragraphs 77, 85(b)); and
(d)that the daily pattern of intake and amount (12g/day) continued for a continuous period of at least six months before the clinical onset of hypertension in 1970 (paragraph 84).
Accordingly, based on these conclusions, the Tribunal finds that Factor 5(c) of SoP No 31 of 2001 is satisfied. The late Mr Cummins consumed 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 in 1970.
Connection with Operational Service
In discussing the statutory framework with respect to SoPs and raising a "reasonable hypothesis" connecting a disease with the circumstances of service, Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412 stated:
"8. Section 196A of the Act establishes the Repatriation Medical Authority ("the Authority"). Section 196B is concerned with the functions of the Authority. Section 196B(2) provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles ("SoP") in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors "must be related to service rendered by a person", before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.
9. Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase "related to service". That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:'(b) it arose out of, or was attributable to, that service; or…
(d)it was contributed to in a material degree by, or was aggravated by, that service;…
(f)in the case of a factor causing, or contributing to a disease-it would not have occurred…but for the rendering of that service by the person'."
Later, Emmett J stated:
"42. An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that "factors must be related to any relevant service". That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
43. … Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service." (emphasis added).The Tribunal has applied the reasoning and principles in this decision to the application for review.
It follows, in the Tribunal's view, that the late Mr Cummins acquired a taste for salt by reason of his Army service. Moreover, prior to operational service he consumed salt but in smaller quantities relative to consumption during service. After operational service, the evidence of his family establishes that he continued to consume high amounts of "salt supplements" that were at least 12g per day throughout the post-service period. Furthermore, the Tribunal accepts the evidence of his wife and daughter that they continued to raise their health concerns with him about the quantities of salt that he consumed. Equally, that he also ignored their advice.
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 the late Mr Cummins' 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 (emphasis added). The Tribunal concludes that as both the ischaemic heart disease and hypertension SoPs are satisfied, there are sufficient grounds for determining, at the requisite level of proof imposed by subsection 120(1), and in accordance with the legal framework outlined in this decision, that there is a connection between the late Mr Cummins' ischaemic heart disease, his hypertension and his operational service.
Therefore, for all of the above reasons, the Tribunal determines that the late Mr Cummins' ischaemic heart disease was a "service-related disability".
Given the above finding, there is no need for the Tribunal to consider whether the cerebrovascular accident is also a "service-related disability."
Insofar as the applications under review are concerned, with the acceptance of hypertension and the claim brought by Mrs Cummins for pension by reason of the death of Mr Cummins arising out of his myocardial infarction, the Tribunal is satisfied, at the requisite level of proof, that those decisions should be set aside. In substitution, decisions will be made that hypertension is a war-caused disability and that the circumstances of death were war-caused. Mrs Joyce Cummins is therefore entitled to receive a war widow's pension with effect from 3 August 2000.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Sarah Oliver
AssociateDate of Hearing 17 October 2002
Date of Decision 6 November 2002Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
Solicitor for the Respondent Mr M Smith, Departmental Advocate
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