Duff and Repatriation Commission (Veterans' entitlements)

Duff and Repatriation Commission (Veterans' entitlements) [2017] AATA 1405 (1 September 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4019
Re:Sylvia Duff
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:1 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – whether death was war caused – salt consumption habit – ischaemic heart disease – hypertension
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 8, 13, 119, 120, 120A
Statement of Principles concerning Ischaemic Heart Disease (Reasonable Hypothesis) (No. 1 of 2016) clauses 6, 9 and 11
Statement of Principles concerning Hypertension (No. 63 of 2013) clause 3
CASES
Forrester v Repatriation Commission [2013] FCA 898
Starcevich v Repatriation Commission (1987) 76 ALR 449
Repatriation Commission v Deledio (1998) 83 FCR 82
Hill v Repatriation Commission (2005) 85 ALD 1
Dunlop v Repatriation Commission [2003] FCAFC 201
Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280
Repatriation Commission v Codd [2007] FCA 877; 85 ALD 619
Bushell v Repatriation Commission (1992) 175 CLR 408
McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Hill (2002) 69 ALD 581
Ellis v Repatriation Commission (2014) 142 ALD 352
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Kaluza v Repatriation Commission [2011] FCAFC 97
Higgins and Repatriation Commission [2013] AATA 630
Budge and Repatriation Commission [2014] AATA 276
REASONS FOR DECISION
Senior Member J Sosso
1 September 2017
INTRODUCTION

Mrs Sylvia Jean Duff (the Applicant) seeks a review of a decision of the Veterans’ Review Board of 27 June 2016 which determined that the death of her husband Mr Leslie Ernest Duff (the veteran) was not related to his war service and that, accordingly, a war widow’s pension was not payable – Exhibit 1 T52 pp. 112–117. The Board upheld a decision of the Repatriation Commission (the Respondent) dated 8 December 2015 – Exhibit 1 T45 pp. 93-97.
Pursuant to s 13 of the Veterans’ Entitlements Act 1986 (the Act) the Applicant is eligible to receive the war widow’s pension if the veteran died as a result of eligible war service. Section 8 of the Act prescribes what is a “war-caused death”. Relevantly, s 8 provides that the death of a veteran is taken to be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”: s 8(1)(b).
The veteran was born in May 1924 in Bulli, New South Wales. He was one of seven children and had a hard upbringing due to his father deserting the family – Transcript p.21. He enlisted with the Australian Military Forces on 1 August 1942 when he was 18 years of age – Exhibit 1 T53 p. 118. His occupation when he enlisted was stated in his Army records as being a “carpenters improver” – Exhibit 1 T53 pp. 118, 129. The veteran subsequently volunteered for the AIF and was initially allocated to the Australian Army Ordnance Corps. Upon completion of his training, the veteran joined the 2/11^th Australian Field Company – Exhibit 1 T53 p. 129.
It is not disputed that the veteran had:
(a)operational service in World War 2 during the period 28 June 1943 to 24 January 1946 – s 6A(1) defines “operational service” during world wars; and
(b)eligible war service during the period 1 August 1942 to 27 June 1943; s 7(1)(c) – Exhibit 1 T45 p. 95.
There was one incident during the veteran’s early AIF service which had an ongoing impact on his life and health. On 13 July 1943, he was admitted to hospital suffering from arsenic poisoning. Following treatment, he was discharged on 15 July 1943 – Exhibit 1 T53 p. 125. Many years later, the veteran described this incident as follows – Exhibit 1 T16 p. 18:
“was poisoned by drinking poisoned coffee at a place named Blackhill near Rutherford NSW in April 1943 was conveyed to Rutherford Army Hospital.”
The veteran then described the consequences of the arsenic poisoning:
“the severity of the poisoning left me with a weakened stomach condition which has continued to deteriorate over the years.”
The only evidence of the Applicant’s blood pressure during the period of his operational service is the record of a clinical examination conducted on 5 October 1945. The treating doctor, Major Hamilton, recorded the veteran as having a reading of 130/50 – Exhibit 1 T53 p.134.
The veteran had two overseas tours of duty. The first was in New Guinea between 7 October 1943 to 14 March 1944 – Exhibit 1 T53 p. 130. The second was in Borneo (then part of the Dutch East Indies) when he participated in both the Tarakan campaign of May 1945 and the Balikpapan campaign in July 1945. The veteran was stationed in Balikpapan from June 1945 until leaving for Sydney on 4 January 1946 – Exhibit 1 T53 p. 131.
It is not contested that at various times between 1943 and 1946 the veteran served in tropical areas, including Milne Bay, Madang, Lae, Morotai, Tarakan and Balikpapan.
Dr Albert Palazzo, consultant historian, prepared a detailed and very professional report on the Second World War service of the veteran – Exhibit 5. Dr Palazzo deals at some length with the provision of salt to soldiers in the AIF. For present purposes, however, Dr Palazzo highlights that salt was a regular component of the AIF’s tropical ration, and soldiers were provided with supplemental salt tablets and/or salted water to maintain health in tropical climates – Exhibit 5 p. 3. The combination of heat, humidity and salt loss resulted in the increased risk of heat related conditions, including exhaustion, heat stroke and gastric problems – Exhibit 5 p. 4. Dr Palazzo opined that he had “no doubt” that the veteran would have received salt supplementation as part of his daily ration throughout his operational service in New Guinea and the Dutch East Indies – Exhibit 5 p.4.
Dr Palazzo located a report written by a medical officer about the use of salt in Borneo during the Balikpapan campaign. Under the heading “SALT LOSS” the medical officer wrote as follows (Exhibit 5 “Document Salt15”):
“Minimum daily intake necessary 200 grains/day. The salt ration is more than adequate – 240 grains/man/day. Care should be taken to see that daily salt ration issued is in fact taken. Best method of supplementing ration is achieved by adding 0.1% salt to drinking water (2 salt tablets to the water bottle). Deficiency lends to fatigue and later cramps and predisposes to malaria.”
A grain is an Imperial unit of measurement. Since 1959, one gram is the equivalent of 15.43 grains.
In the Applicant’s Statement of Facts and Contentions (“ASFC”) the Tribunal was informed that 200 grains equates to 12.96 grams and 240 grains to 15.52 grams - ASFC para 13. It was also contended that as the veteran served in the tropics he would have been receiving, on a daily basis, the above salt ration for approximately 14 months – ASFC para 13.
The Applicant communicated with the veteran during the Second World War as a result of her sending a “Comforts Fund (Red Cross) package” to him. She first met him in Lismore following his discharge from the AIF in 1946 – Exhibit 2 para 2. The Applicant married the veteran on 31 May 1947 at Coraki, in northern New South Wales – Exhibit 1 T4 p. 14.
After their marriage, the Applicant moved with her husband to the Wollongong area of southern New South Wales. After the completion of his AIF service the veteran returned to carpentry and went into a partnership with an old Army colleague which, apparently, lasted for many years. His carpentry skills were such that he built the family home, and as he had four children, built extensions on the home to accommodate the growing family – Exhibit 4 para 4.
In her statement, the Applicant described her husband’s salt habit as follows – Exhibit 2 para 11:
“11. Since the end of the War Les had a craving for salt related products, as well as putting a lot of salt on his food. I think this salt intake was because of his diet and tastes buds [sic] for salt was very high. He would have meat cuts that contained a high concentration of salt, such as pickled pork, brisket, bacon and ham, as well as pig’s trotters and a craving for savoury salty foods. Therefore, I considered that his intake of salt was extremely high whilst, within the Army and after his separation, after the war, as a consequence of his Army service.”
In a separate statement dated 25 May 2016, the Applicant estimated that the veteran would consume at least “if not more than” 12 grams of salt each day – Exhibit 1 T50 p. 110.
The Applicant testified that after she was married and moved to the Wollongong region she had meals with the veteran’s family, and she remembered that salt “wasn’t an issue” – Transcript p. 29. The Applicant also said of her mother-in-law and other family members – Transcript p. 22:
“There wasn’t an issue with salt intake. They didn’t eat a lot of salt.”
The Applicant’s recollection of her husband’s salt habits was also shared by his daughter-in-law, Denise Joan Duff. Mrs Duff met her husband in 1969 and was married in 1970- Transcript p.37. Accordingly, she had known the Applicant and the veteran since approximately 1969. In her written statement, she made the following observations – Exhibit 3:
“2. My observations of the salt consumed by my late Father-in-Law started when I became a member of the Duff family in about 1970, because I myself used a large amount of salt, certainly more than I should have used.
3. My father was also a former soldier who served in the tropics and I remember him using a large amount of salt because of him serving in the tropics and I watched him put salt all over his plate at meal times.
4. I was surprised to see that Warren’s father was adding a lot more salt than I was. He used to put it all over his food and I also noticed that the container of salt was always on the table. It was a ‘Saxa’ Brand of salt, the same as that used by my Father and the family.
5. I would estimate that the quantity used by my Father-in-Law was about two (2) to about two and a half (2 ½) tea spoons of salt that he used, which was sprinkled over all of the food on his plate. He used a noticeably large amount of salt.”
The veteran’s son, Mr Warren Leslie Duff, also gave a statement, dated 16 December 2016, which dealt with the salt consumption issue. Mr Duff stated that as an adult he became aware of his father’s medical problems and observed his salt habits. He said (paras 6,10):
“6. He would avoid food with the slightest bit of spice, but on the other hand he had a craving for salt. Salt was always on the table and a great deal was added to his meals and he had a great liking for salty meats and salty foods. Dad applied salt on just about all of the food on his plate. He would add salt to just about everything on his plate, except some pre-salted food, he even put salt on corned beef and pickled pork, but not on ham.
…
10. My observations of Dad’s salt consumption are based on both mine and my family’s revisiting home during leave periods, when I was in the RAAF and after my being discharged from the RAAF, they became more frequent, when I could further observe my father’s salt intake. I did not consider my Dad’s salt intake before I left home, however, during my return visits I noticed that my Dad’s salt application to his food seemed extremely excessive, compared to what I considered normal. My father’s excessive salt intake on his food was certainly remarkably excessive and noticeable in both me and my wife.”
Mr Duff estimated that his father consumed at least 2 teaspoons of salt daily which equates to approximately 12 grams of salt – para 12.
The Applicant passed away on 28 July 2002. The cause of death listed in his Death Certificate was – Exhibit 1 T39 p. 70:
“(a) Acute heart failure (b) Hypotension (c) Severe myopathy (d) Severe coronary artery disease.”
It will be noted that one of the causes of death is listed as “hypotension”. Hypotension is to be contrasted with hypertension. Hypotension is low blood pressure, while hypertension is high blood pressure.
The only medical records presented to the Tribunal concerning the Applicant’s hypertension were generated in the last two months of his life.
The first is a report of Mr Brad Sartori JHO for Dr Coverdale of the Coronary Care Unit of Nambour Hospital and is dated 29 May 2002. The report lists the veteran as suffering from “hypertension – was on Inderal tab mane” – Exhibit 1 T26 p. 53.
The next report was prepared by Dr Kit Wong, Cardiologist, and is dated 31 May 2002. In this report Dr Wong diagnosed the veteran as having the following clinical problems - Exhibit 1 T28 p. 56:
1Extensive anterior myocardial infarction;
2Congestive cardiac failure;
3Paroxysmal atrial fibrillation;
4Coronary angiography 3.6.02 as inpatient.
Dr Wong made the following clinical observations – Exhibit 1 T28 p. 56:
“In general he has a history of hypertension but this is managed with some Propranolol. There is no risk factors of note, in particular no hypercholesterolaemia, no diabetes and he does not smoke. He remains otherwise very active and independent…
On examination his blood pressure was low at 100/70.”
In a letter dated 6 June 2002, Dr Wong again commented on the veteran’s hypertension – Exhibit 1 T32 p. 62:
“However, with his medication he remains hypotensive with a systolic blood pressure of between 90 and 100 mmHg.”
Dr Wong examined the veteran on 16 July 2002, 12 days before his death, and in his report prepared the next day he observed (Exhibit 1 T35 p. 66):
“His blood pressure low at 90/60.”
When affirming the decision of the Repatriation Commission decision not to accept the Applicant’s claim that the veteran’s death was service related, the Veterans’ Review Board gave the following reasons – Exhibit 1 T2 p.9:
“20. On the basis of the veteran’s death certificate (f22) and the opinion of the Departmental Medical Advisor (f67) the Board is reasonably satisfied that the cause of the veteran’s death was ischaemic heart disease.
…
22. In relation to the arsenic factor in the SOP for hypertension, the Board notes that the SOP refers specifically to chronic arsenic toxicity. As noted in the veteran’s medical records he experienced an episode of acute arsenic toxicity. As there is no medical evidence of acute arsenic toxicity, there is no material which points to the factor in the SOP. Thus there is no reasonable hypothesis within the meaning of subsection 120(3) of the Act to raise the arsenic factor in the SOP for hypertension.
23. In relation to the factor concerning the veteran’s ingestion of salt, there is insufficient material pointing to the factor. There is no evidence of the veteran’s salt consumption prior to service; there is speculation and Assumption that he would have consumed salt tablets on service but no material indicating that this was the case; and the only evidence of his consumption post service is provided by his wife and son who stated that he liked salty foods and used excessive amounts of salt on his evening meal. In addition, there is no evidence of the date and onset of hypertension.
24. The salt consumption factor is very specific. It requires the consumption of 12 grams (200 millimoles) of salt per day on average for at least six months before the clinical onset of hypertension.
25. There is insufficient material available to the Board to raise the salt factor, and so, there is no reasonable hypothesis, within the meaning of subsection 120(3) in relation to the consumption of salt.”
A hearing was convened in Brisbane on 3 July 2017. The Applicant was represented by Mr A Harding of Counsel instructed by Terence O’Connor Solicitors. The instructing solicitor on the day was Mr Warren Searle. The Respondent was represented by Mr Matthew Hawker of Sparke Helmore Lawyers.
Oral evidence was given via teleconference by the Applicant, Mr Warren Duff, Mrs Denise Duff and Dr Albert Palazzo.
Counsel assisted the Tribunal at the outset by clarifying and refining the issues in contention.
Firstly, it was agreed between the parties that the medical cause of death (the “kind of death”) of the veteran was Ischaemic Heart Disease (IHD) – Transcript p.4; Respondent’s Submissions (“RS”) para 3.2. In short, the heart attack that resulted in the death of the veteran was caused by his IHD.
Second, it was agreed that the veteran had served in the Second World War, had eligible operational service, had served for lengthy periods of time in New Guinea and the Dutch East Indies and that the Applicant is his widow.
Third, Mr Harding advised the Tribunal that the Applicant was abandoning the contention that the veteran had a psychiatric disorder before the clinical onset of hypertension – Transcript p.5.
Fourth, the hypothesis relied upon by the Applicant is as follows (Transcript pp. 4-5; Applicant’s Outline of Submissions (“AOS”) para 9):
(a)As a result of the veterans experiences during his service, he developed a salt consumption habit;
(b)His salt consumption habit was causative of him developing hypertension;
(c)His hypertension was in turn causative of him developing IHD which ultimately led to his death from, inter alia, that condition.
THE LAW
It is important to note at the outset that the policy underpinning the Act (and the earlier applicable veterans’ legislation) is to deal fairly and generously with those Australians who have served their country and who have suffered physically or emotionally as a result of that service - s 119(1)(f) and (g). In Starcevich v Repatriation Commission (1987) 76 ALR 449 Fox J said (at 454):
“It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen.”
More recently Mortimer J in Forrester v Repatriation Commission [2013] FCA 898 (“Forrester”) made the following observations (at [19]):
“In its current form, the Act requires the decision-maker to undertake a process which Parliament intends to be beneficial to applicants: see Deledio v Repatriation Commission (1997) 47 ALD 261 at 262-263 per Heery J; East 16 FCR 517 at 518. It is not a process intended to put insuperable hurdles in the way of the veteran, while still ensuring that the requisite causal connection between the veteran’s war service and the disease, injury or death is established. The scheme imposes particular processes and standards of proof to establish the requisite connection, but the use of the double negative in s 120(3), combined with the imposition of the highest standard of satisfaction known to law, makes plain that the process of establishing that causal connection is intended to operate beneficially towards applicants’ claims.”
As previously stated, s 13 of the Act provides, inter alia, that when a veteran’s death is war-caused, the Commonwealth is liable to pay a pension to the dependants of the veteran. A death is “war-caused” if it arose out of, or was attributable to, any eligible war service rendered by the veteran – s 8(1). Importantly, the Act contains provisions facilitating proof of the relationship between death and war service.
Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service by the veteran, the Repatriation Commission shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.
Subsection 120(3) provides that in applying subsection (1) in respect of the death of a veteran, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service rendered by the veteran.

In addition, s 120A(3) provides that, for the purpose of s 120(3), an hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a State of Principles (“SoP”) determined under section 196B(2) that upholds the hypothesis.
The methodology to be adopted in reaching the decision mandated by ss 8, 13 and 120 as to whether a death is “war-caused” was explained by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) as follows (97-98):
“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 fining 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)…
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 the 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…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.”
As helpful as the Deledio methodology is, the Tribunal is not required to proceed step by step through the outlined process in a mechanistic manner; nor does the methodology have a life of its own and operate as substitute for compliance with the relevant provisions of the Act: Hill v Repatriation Commission (2005) 85 ALD 1 at 16-17; Dunlop v Repatriation Commission [2003] FCAFC 201 at [33].
Further, there are antecedent inquires required of the Tribunal before applying the Deledio methodology. Those antecedent inquiries were explained by Mansfield, Stone and Edmonds JJ in Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280 (“Collins”) as follows ([18]/284-285):
“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:
1whether the claimant was a veteran, or a dependant of a deceased veteran;
2whether the veteran has suffered an injury or disease or has died…; and
3…the cause of death or the ‘kind of death’ of the veteran…
…those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”
CONSIDERATION
Preliminary Issues
As explained in Collins it is necessary to deal with certain antecedent or threshold issues.
It is not contested that the Applicant is the widow of the veteran who rendered eligible war service during World War 2 in both New Guinea and the Dutch East Indies.
It is also not contested that the veteran died on 28 July 2002, and that his Death Certificate lists the causes of death as acute heart failure, hypotension, severe myopathy and severe coronary artery/disease.
However, the cause of death for the purposes of ss 120 and 120A of the Act, requires an inquiry into the ‘kind of death’ suffered by the veteran. The manner of approaching this issue was explained in Repatriation Commission v Codd [2007] FCA 877; 85 ALD 619.
In that matter, the Applicant was the widow of a veteran who served in the Australian Army from 1942 – 1946. In 1968, Mr Codd was killed when the truck he was driving was struck by a train at a level crossing. The Tribunal found that the ‘kind of death’ was death by road accident. This was despite the Tribunal finding that Mr Codd had a drinking problem, and the effects of alcohol consumption were likely to have impacted on his concentration and contributed to the fatal accident.
Gordon J made the following observations ([31], [35] – [36], [40]):
“31. The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context.
…
35. What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
36. The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that death was war-caused and that the cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal collision’.
…
40. In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.”
It is agreed between the parties that the veteran’s ‘kind of death’ was IHD. Having regard to the analysis of Gordon J outlined above, the Tribunal is satisfied that this agreement is well founded in law.
Deledio Methodology – First Step
The first step of the Deleido methodology is aimed at ensuring the proper application of section 120(3) of the Act. At this initial stage the Tribunal does not engage in a fact finding exercise.
A helpful explanation of the task required of the Tribunal was provided by Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408. Their Honours said (413 – 414):
“…s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be opinion or fact. The purpose of sub-s (3)…is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true…”
In short the first step merely requires the Tribunal to be reasonably satisfied that the hypothesis has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied on: Forrester at [14]. Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption. In this matter, assuming that the veteran commenced his habit of ingesting large amounts of salt during war service, it is open to the Tribunal based on the material presented.
One case which helpfully illustrates the task required of the Tribunal is McLean v Repatriation Commission [2001] FCA 243 (“McLean”). The veteran in that case served in the RAAF in World War Two. He was killed in an accident in 1953 when he was struck by a rock whilst felling trees with two other men. It was contended that the veteran suffered from a bad back condition which arose from his war service which restricted his mobility and therefore contributed to his death.
In dealing with the first step of the Deledio methodology, Tamberlin J said ([23]-[24]):
“23. In relation to the existence of a hypothesis it should be borne in mind that the hypothesis sought to be raised need not be the sole possible scenario for the death, but it must be a possible explanation. It does not have to be the correct one on any balancing of evidence. The hypothesis raised must be examined to see whether it is in fact an available hypothesis on the whole of the material in the sense that it is pointed to or raised by the facts even if an assumption needs to be made. There must be facts which point to the hypothesis rather than leaving the matter at large or open. The existence of another inconsistent hypothesis or of inconsistent material does not necessarily mean that there is no available hypothesis.
24. As a matter of possibility, in my view, the material before the AAT considered as a whole is consistent with the circumstances advanced as a possible explanation or hypothesis as to what occurred. It is possible, for example, on the material that the veteran may have become aware of the falling rock but was unable to move sufficiently swiftly as a consequence of a back injury received during the war. The evidence of the applicant that the veteran did not suffer any problems with his back prior to the war, when considered together with other material as to the circumstances of the accident, in my view at least raises the hypothesis. To the extent that the AAT decided there was no hypothesis raised I consider that it erred in applying too high a standard in respect of what is a low threshold of proof.”
As Tamberlin J states, there is a low threshold at this stage. It is clearly open for the Tribunal to find, when considering all of the material, that it supports and points to the hypothesis that the veteran developed a salt consumption habit because of his war service, and there follows a causal chain of the veteran developing hypertension and then IHD, resulting in his ultimate demise.
Second Step
The next step is to ascertain if there is an SoP in force that is relevant to the hypothesis raised.
It was pointed out by Mortimer J in Forrester that it is permissible to use two SoP’s sequentially to uphold a hypothesis. Her Honour said (at [20] –[22]):
“20. It was accepted by both parties before me that s 120(3) can be construed (relying on the presumption contained in s 23 of the Acts Interpretation Act 1901 (Cth)) so as to allow two Statements of Principles (SoPs) to operate sequentially to uphold a hypothesis put forward by a veteran: see McKenna v Repatriation Commission (1999) 86 FCR 144 at 151-152 per Branson, Sundberg and Kenny JJ.
21. In the present case, the application of that approach means the Commission accepted Mrs Forrester could rely on the SoP concerning Aortic Aneurism (Instrument No 66 of 1998), in combination with the SoP concerning Hypertension (Instrument No 35 of 2003, as amended). Instrument No 66 identifies suffering from hypertension before the clinical onset of aortic aneurysm as a factor that must at a minimum exist and be related to the veteran’s service. Instrument No 35 (as amended) relevantly identifies the consumption of an average of at least 300g of alcohol per week at the time of the clinical onset of hypertension as a factor that must at a minimum exist and be related to the veteran’s service.
22. The reliance of a second SoP meant, in substance, that in this case the statutory task in s 120(3), read with s 120A, was to be performed by examining whether the material before the Tribunal ‘pointed to’ or ‘supported’ the consumption of an average of 300g of alcohol per week (with the other consumption limits set out in the SoP) by Mr Forrester at the onset of his hypertension, and also pointed to or supported the proposition that such consumption arose out of or was attributable to Mr Forrester’s service in Vietnam (in particular, In whole or in part, the five events set out at [61] of the Tribunal’s reasons). In that sense the hypothesis did not, as I understand the concession by the Commission, have to be measured directly against the SoP for aortic aneurism only.”
There is an SoP in force for IHD, that being Instrument No 1 of 2016, Ischaemic Heart Disease (Reasonable Hypothesis).
Clause 9 outlines the factors that must, at a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting death from IHD with the circumstances of a person’s particular service. The Applicant relies on Factor 9(1), namely having hypertension before the clinical onset of IHD.
Clause 11 provides that if a factor in clause 9 refers to an injury or disease in respect of which an SoP has been determined, then the factors in that SoP apply in accordance with the terms of that SoP.
As clause 9(1) refers to hypertension, consideration must be given to Instrument No 63 of 2013 – Hypertension.
Clause 6 outlines the factors relevant to that SoP. The Applicant relies on Factor 6(c), namely:
“consuming at least 12 grams (200 millimoles) of salt per day on average for at least the six months before the clinical onset of hypertension.”
“Hypertension” is defined by clause 3(b) as follows:
“persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by:
(i)a usual clinic blood pressure reading of great than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurement; or
(ii)a usual home blood pressure reading of greater than or equal to135 mmHg systolic or greater than or equal to 85mmHg diastolic
(iii)…
(iv)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, gestational hypertension or medications.”
Clearly there are two SoP’s in force that apply to the hypothesis raised by the Applicant. Accordingly, step two of the Deledio methodology has been addressed.
Third Step
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in the relevant SoP.
It will be seen that when applying the Deledio methodology the question of “reasonableness” arises at both step one and step three. The methodology requires the Tribunal to assess reasonableness from both a factual and a medical or scientific prism. This was helpfully explained by Mortimer J in Forrester as follows (at [32]):
“The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”
The jurisprudence on this area of law clearly establishes that it is not necessary for every element of a hypothesis to be supported by material before the Tribunal, but the material presented must include the essential elements of the hypothesis. This was neatly explained by the Full Federal Court in Repatriation Commission v Hill (2002) 69 ALD 581 as follows (at [55]):
“a hypothesis connecting a disease and war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP…”
Further, as Gordon J in Ellis v Repatriation Commission (2014) 142 ALD 352 at 365/[63] pointed out:
“It is not open for the AAT to infer or assume that the essential elements of a hypothesis are met. Its task was and remains that described earlier – to determine whether the whole material raises a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.”
The Respondent conceded that the evidence before the Tribunal disclosed that the veteran suffered from hypertension and IHD – RS para 3.12. The concession regarding hypertension will be discussed below. The Respondent goes on, however, to correctly point out that the relevant SoP’s require more than that, in particular that the veteran had hypertension before the clinical onset of IHD and that the veteran consumed at least 12 grams of salt for at least six months before the clinical onset of hypertension.
The phrase “clinical onset” is not defined in the Act. However, in both Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission (2002) 125 FCR 331, the Federal Court endorsed a formulation made by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 that a clinical onset of disease can occur either when:
(a)a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or
(b)a finding is made on investigation which is indicative to a doctor that the disease is present.
The Respondent correctly contends (RS 3.15) that there needs to be medical evidence to underpin a finding as to the timing of clinical onset. The Respondent also appropriately concedes that clinical onset is not necessarily when a patient first attends on a doctor seeking medical treatment. This concession flows from the decision of the Full Federal Court in Kaluza v Repatriation Commission [2011] FCAFC 97. In that case McKerracher, Perram and Robertson JJ said:
“51. The primary judge also noted (at [93]) that the definition in Lees emphasised the need for a determination of the clinical onset by medical evidence. Although it is for a doctor to say when the clinical onset occurred by the presence of symptoms, clinical onset was not necessarily when the patient first saw a doctor for medical treatment.
…
66. The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion…”
The medical evidence presented to the Tribunal in this matter is scant.
The Applicant referred the Tribunal to two determinations of Brisbane based Members involving “salt” cases. The first of these was Higgins and Repatriation Commission [2013] AATA 630. In that matter, Senior Member McDermott (as he then was) made the following observations on the medical evidence relating to the clinical onset of hypertension (at [23]):
“The Federal Court of Australia has laid down the principle that where an applicant seeks to connect an ultimate condition (which is cerebrovascular accident) through an intermediate condition (which is hypertension) then a factor in the Statement of Principles which pertains to the intermediate condition must itself be met. There is no issue with the report dated 7 March 2011 of Dr Mark Odling who reported that in 1971 the veteran had the clinical onset of hypertension. The respondent quite properly accepts that the veteran was suffering from hypertension at the time of his cerebrovascular accident. What is in issue is whether there is a reasonable hypothesis connecting excessive salt consumption with the hypertension of the veteran and his subsequent death.”

In this matter the very limited evidence of the veteran’s hypertension is as follows:
(a)a letter dated 29 May 2002 from Brad Sartori, JHO for Dr Coverdale, Coronary Care Unit, Nambour Hospital which states under the heading “BACKGROUND”: “Hypertension – was on Inderal tab mane” - Exhibit 1 T26 p. 53;
(b)a letter dated 31 May 2002 from Dr Wong, Cardiologist, to Dr Krigovsky. In his letter, Dr Wong diagnoses the veteran as suffering from four clinical problems. The first two are extensive anterior myocardial infarction and congestive cardiac failure. In the course of his lengthy account of the veteran’s medical condition, he refers in passing to him having “a history of hypertension” which was being treated with some Propranolol.However, there is no mention of how long the veteran had suffered from hypertension and he later states that “his blood pressure was low at 100/70”;
(c)the death certificate lists four causes of death and provides a duration for three of those causes. The duration of hypotension is stated to be hours and the duration of severe myopathy is stated to be years.
Before proceeding further, one matter needs to be addressed. The Applicant’s case is predicated on the veteran suffering from hypertension. The fact that the veteran was suffering from hypertension is conceded by the Respondent and confirmed by Dr Wong in his May 2002 correspondence. The Applicant relies, in particular, on the statement of Dr Wong that the veteran had a history of hypertension – Exhibit 1 T28 p. 56, AOS para 15.
However, the Tribunal has before it zero evidence of any high blood pressure readings. There is a huge gap in the evidence between the veteran’s blood pressure reading of 5 October 1945 (when it was 130/50) to readings of May 2002 (100/70 as at 29 May 2002). The Death Certificate lists as a cause of death hypotension and not hypertension. Mr Harding submits (AOS para 15 fn 6) that the low blood pressure readings should be expected as the veteran was being treated with Propranolol. The Tribunal accepts this, however, what cannot be disputed is that there is not one document before the Tribunal which discloses a blood pressure reading which is higher than average. Clause 3 of SoP No 63 of 2013 defines “hypertension” in a specific way. It requires that a person suffering from that ailment be diagnosed by a medical practitioner and have evidence of enumerated blood pressure readings or the administration of a particular therapy. In this matter, there is no material which clearly and unequivocally demonstrates that the threshold requirements of clause 3 have been met. While not necessarily fatal to the Applicant’s case, it highlights the shallow evidentiary base upon which the Applicant’s case is constructed.
It should also be observed that at various times the Applicant has invited the Tribunal to make inferences about various aspects of the veteran’s lifestyle and medical conditions. It is, of course, open to the Tribunal to draw inferences, however an inference requires a factual foundation. Inferences cannot be made from hearsay, speculation or submissions. While this is obvious, particularly in this area of the law a tendency can develop to confuse a hypothesis for a factual matrix. A blurring of the two can lead, through a process, of cumulative submissions to the error just outlined.
The medical evidence, albeit brief, discloses that the Applicant’s IHD had been present for “years”, and that the Applicant, according to Dr Wong, had a “history” of hypertension. Again there is no suggestion by Dr Wong, and there is no other medical evidence, as to the period of time that the veteran suffered from hypertension.
Mr Harding, nonetheless, submits (AOS para 17) that the veteran was suffering from hypertension before the onset of IHD. In support of this submission, Mr Harding relies on the lay evidence of the Applicant and her son and daughter-in-law.
At the hearing, Mr Harding contended, when asked about the clinical onset of hypertension (Transcript p. 6):
“the clinical onset was in the early 1980’s. Now, Senior Member, I expect you would appreciate it from looking, or reviewing the material, that that is not a matter which clearly emerges from the material.”
Mr Harding then addressed the Tribunal as follows (Transcript p.7):
“I have taken further instructions from…the applicant, this morning, and she will give evidence, firstly, that they cannot obtain any medical records to support the issue, or substantiate when the onset of hypertension was, because of the passage of time. But relevantly, she says that – or, will give evidence that in the early 1980’s, her husband was admitted to the Wollongong Hospital with stomach troubles and they were a recurrent feature, you would have seen from the other material. That at the time, the anaesthetist identified high blood pressure. That subsequent to that, her husband was put on blood pressure medication by his general practitioner, Dr Bartlett. So…the contention is that the evidentiary material points to the onset of hypertension as being in the early 1980’s.
She will also give evidence that at that time, her husband had no heart problems of which she was aware and in that regard, of which she had been told by any of his medical practitioners and that it was in the late 1980’s that he was first diagnosed with heart problems.”
Mr Harding correctly pointed out to the Tribunal that it was not necessary, based on the hypertension SoP, to establish that the veteran’s onset of hypertension occurred during his operational service. Rather, the critical issue was the level of consumption of salt in the period before the onset of hypertension – Transcript p.9. The fact that the onset of hypertension may have occurred decades after the veteran’s military service ended in 1946 is not a relevant consideration.
Dealing first with the evidence of the Applicant, it is appropriate to point out that she is an elderly lady, and while her evidence was straightforward and she presented as a truthful and good witness, she did have difficulty, at times, remembering events and persons.
The Respondent drew the Tribunal’s attention (RS para 3.23) the evidence the Applicant gave to the Veteran’s Review Board on 27 June 2016. In its reasons, the Board noted (Exhibit 1 T52 p. 114 at [18]):
“Mrs Duff…could not recall when he (i.e. the veteran) was diagnosed with hypertension or when he commenced medication for the condition.”
When Mr Hawker asked the Applicant whether she recalled speaking to the Veterans’ Review Board she answered, more than once, in the negative – Transcript pp. 24-25.
In contradistinction, the Applicant recalled that the veteran went to a cardiologist at the Buderim Hospital and he was diagnosed with high blood pressure – Transcript p.23. In answer to a question when that was, the Applicant said (p.24):
“Well, he didn’t bother – he didn’t tell me much about it, until – the first I knew about was when – when he went to Selangor, the anaesthetist picked it up and he hadn’t – I didn’t have knowledge that he had anything until he saw Dr Dalton.”
The Applicant went on to testify that this was in the late 1980s, and “Selanagor” was a private medical clinic in Nambour.
Mr Harding then asked the Applicant whether the veteran had any heart problems at that time. She replied (Transcript p. 24):
“No. Not at that time. We didn’t know of any…So I don’t know.”
In response to questioning from Mr Hawker, the Applicant testified that the veteran commenced taking blood pressure medication (Transcript p. 26): “in the late ‘80s or early ‘90s”.
However, when asked if the veteran hadn’t obtained medication until seeing Doctor Dalton, the Applicant said (p. 26):
“He didn’t talk to me about – I know he was taking other medication, but he never said what they were for.”
A clear theme emerged from the oral testimony. It became apparent that the veteran was not a person to share his medical issues with members of his family. Mr Warren Duff testified (Transcript p.34): “he kept it to himself mostly”. Perhaps like many men of that generation, he kept many of his problems within and did not want to share or burden members of his family with the ramifications of his ailments. This was further highlighted in the oral testimony of Mr Warren Duff.
First, when questioned by Mr Harding about his father’s hypertension the following evidence was given (Transcript p. 33):
“Okay. Now, I’ve particularly asked you about whether you know anything about whether he suffered from hypertension?----Okay. Not until- certainly until late ‘80s, early ‘90s, I believe, that’s when we became aware of that…
I just want to find out what you’re basing your statement that you understand that he had hypertension in the late ‘80s/early ‘90s on, what are you basing that on?---Information from when we used to visit and dad was – had come out of hospital and had to have some other sorts of medication, the details of which I’m not aware of the medication, but he was having issues with blood pressure then.”
Mr Hawker cross-examined Mr Duff, and the relevant portions are set out below (Transcript pp. 34-35):
“You mentioned that your father kept to himself and you didn’t know what the medication was?---He wouldn’t divulge it, no.
Yes. So how did you know that it was the blood pressure medication?---Well you could see the – some of the tablets would be around there. You would certainly see he was taking his stomach treatment medications, I think it was Losec and some Mylanta and stuff like that, and there were other tablets that weren’t associated with that in amongst his medications.
Yes. But you didn’t know what the medications were?---Not specifically. There was a – yes, a blood pressure medication at some time, I can’t remember the name.
So is it really just – it requires a degree of speculation which you’re making an assumption from what you know?--- There was something – I think there was little heart-shaped tablets at some point, I’ve forgotten what colour, a purple colour or something. It was some sort of heart-shaped tablets.”
Also of interest was Mr Duff’s testimony about the onset of his father’s heart condition. In answering a question posed by Mr Harding about the veteran’s hypertension, he replied, referring to his father’s heart condition (Transcript p. 33):
“I became aware of heart – he was travelling with work down in Wollongong back in the ‘80s, and that – we would visit occasionally, we used to go for walks along the beach and that, and the started to struggle with that, and then he had issues with struggling with work and took early retirement from work in – I think it was’83 (indistinct) and then moved to a unit in Wollongong, and then up to the Sunshine Coast in 1988.
Right?---Prior to that move (indistinct) he wasn’t as active as he used to be with swimming and walking and issues like that.”
In fact, Mr Duff in another document was of the opinion that his father had a long-standing heart condition, the symptoms and severity of which were masked by his ongoing gastro-oesophageal conditions – Exhibit 1 T43 p. 86.
Mr Hawker drew the Tribunal’s attention, and relied upon, a determination of this Tribunal – Budge and Repatriation Commission [2014] AATA 276.
The veteran in that matter served in the Australian Army from 1940 until 1945. His widow, the applicant, contended he developed a lifelong preference for high levels of salt due to his operational service, and this led to hypertension and ultimately his death from acute renal failure and IHD.
Senior Member Toohey, after carefully considering the evidence, found there was no evidence that could support the hypothesis that the veteran’s salt intake reached the levels required by the SoP, but there was evidence of such intake in the six months prior to his discharge from the Army. Accordingly, the question was whether there was material pointing to the clinical onset of hypertension at that time.
Senior Member Toohey had before her blood pressure readings in 1945, 1970 and 1977, as well a medical report prepared in 1999. After reviewing the material she concluded (at [38]):
“The records concerning Mr Budge’s admission to hospital around the time of his discharge from hospital are, at best, sketchy, and there are no records concerning his attendance on doctors between 1945 and 1970. Mrs Budge’s knowledge about his medication for blood pressure is also very limited. It is submitted on her behalf that her claim should not fail for want of adequate records or other information. In particular, reference is made to s 119(1)(h) of the Act which states that, in determining and making a decision in respect to a pension, a decision-maker shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, mater, cause or circumstances including the effect of the passage of time, and the absence of, or deficiency in, official records. However, it is one thing to make allowances for gaps in information or even the absence of information, but another to fill them in. In this case, for a reasonable hypothesis to be made out, there must be material pointing to hypertension evidenced by the usual blood pressure readings at the elevated levels specified around the time Mr Budge was discharged. There is insufficient information in that regard and the gap, or absence of information, cannot be filled by inferences that would be no more than speculation.”
Mr Harding contended in the Applicant’s Outline of Submissions in Reply (“AOSR”) (at para 3) that while it is for a doctor to say when the clinical onset of a condition occurred, there is no requirement to take evidence from a doctor. This contention is well founded. There is no requirement for the Tribunal to be presented with oral testimony from a medical practitioner, or even contemporaneous written medical evidence. Having regard to the beneficial nature of the legislation and the numerous cases, it is clear that a common-sense approach has to be adopted.
However, there has to be a proper medical underpinning to meet the requirements of Step 3 so far as the SoPs’ under consideration. It is fundamental in this matter that hypertension preceded the onset of IHD. To get to that point, there must be a solid medical base that points to that state of affairs. Lay evidence can assist in reaching that state of affairs, but cannot be a substitute for medical evidence.
So while evidence need not be given by a doctor, an applicant must present, in support of their case, medical evidence that assists the Tribunal in ascertaining if the hypothesis fits, or is consistent with, the relevant SoP.
Next, Mr Harding again correctly contends that it is important not to raise the bar too high. The relevant hypothesis has to find “some support” and “point to” and “not leave open” the hypothesis relied upon. However, it is important not to confuse the requirements of step one and step three. Step three is aimed, by virtue of the legislation, at an investigation of the medical underpinnings of an Applicant’s case within the prism of a relevant SoP.
Mr Harding refers to the evidence of the Applicant and her son. He quite correctly states that that there is no proper basis for characterising their evidence as either unreliable or contradictory.
The Tribunal was impressed by both persons. The Tribunal found them to be witnesses of credit and their evidence truthful and reliable.
However, the evidence of the Applicant and her son does not support the contention that the veteran’s hypertension preceded his coronary condition.
The evidence before the Tribunal can be summarised as follows:
(a)the Applicant did not physically meet the Applicant until after World War Two;
(b)the veteran’s salt consumption habits prior to enlistment are unknown;
(c)no direct evidence was presented of persons who knew the Applicant prior to enlistment, or during his operational service in New Guinea and the Dutch East Indies;
(d)there is historical evidence of AIF servicemen being provided with salt supplements whilst engaged in operational service in the tropics in World War Two;
(e)there is no evidence as to whether the veteran ingested the salt in his rations, though the common-sense approach would be to accept that he would have obeyed orders and did so;
(f)the lay evidence is that the veteran ingested large amounts of salt after 1946, but the quantity ingested is, as one would expect, largely guesswork and based on memories long gone;
(g)his blood pressure reading in 1945 was 130/50 and thus under the definition of hypertension in clause 3 of Instrument No 63 of 2013;
(h)subsequent to the 1945 blood pressure reading, the next blood pressure reading was in 2002 – 57 years later;
(i)the 2002 blood pressure readings did not disclose hypertension, rather hypotension;
(j)Dr Wong in 2002 stated that the veteran had a history of hypertension, however he gave no guidance as to the nature, length or severity of that condition;
(k)the Applicant testified that the veteran’s hypertension problems were diagnosed by the late 1980s or early 1990s;
(l)Mr Warren Duff testified that the veteran’s coronary problems became obvious and he had to stop working by the early 1980s, circa 1983;
(m)the very limited evidence supports, on the balance, a finding that the veteran’s coronary problems preceded the onset of hypertension.
The Tribunal, unfortunately, is placed in a position where it must make a determination on the strength of the evidence presented. Clearly the veteran has served this nation in perilous times and served in arduous and difficult circumstances. Having perused the claims he made while he was alive for his other ailments, the Tribunal can readily understand the dismay he, and his family, would have experienced, when his claims were rejected.
However, the task presented is clear and straightforward. This is a “salt” case and the focus of this Tribunal’s deliberations are therefore relatively narrow and clinically focused.
The material presented does not fit the requirements of Instrument No 1 of 2016, in that the evidence, on the balance, does not lead to the conclusion that the veteran’s hypertension preceded the clinical onset of IHD.
In these circumstances, it is not necessary to deal with the question about the consumption of the requisite level of salt.
DECISION
The decision under review is affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

........................[Sgd]................................................
Associate
Dated: 1 September 2017

Date of hearing: 3 July 2017

Solicitors for the Applicant:

Counsel for the Applicant

Terence O'Connor Solicitor

Mr Anthony Harding

Solicitors for the Respondent: Mr M Hawker of Sparke Helmore

[2017] AATA 1405

1 September 2017

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