Fields and Repatriation Commission
[2004] AATA 1301
•8 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1301
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/370
VETERANS' APPEALS DIVISION )
Re MARIE FIELDS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S C Fisher, Member Date8 December 2004
PlaceBrisbane
Decision (a) to set aside the VRB decision under review of 25 March 2003 and in substitution the Tribunal finds that the conditions of hypertension and ischaemic heart disease of the veteran from which the veteran died were caused or contributed to by the veteran’s operational service in the Australian Army and are therefore war-caused with effect from 5 November 2002;
(b) to remit the matter of assessment of widows’ pension in relation to the Applicant to the Repatriation Commission.
..................[Sgd]......................
S C Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Application for widows’ pension – Whether veteran’s death from ischaemic heart disease and hypertension war caused – whether veteran’s service related ingestion of salt supplements satisfies requirements of SoP – Decision under review set aside and remitted to Repatriation Commission.
Veterans’ Entitlements Act 1986 ss 6, 7, 8, 9, 119, 120, 120A, 174, 175, 176
Evidence Act 1995 ss 144
Administrative Appeals Tribunal Act 1975 ss 33Secretary, Department of Social Security v Murphy (FC 980809, unreported, Federal Court of Australia, QG205 of 1997, 29 June 1998)
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248, (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598, (1981) 4 ALD 198
Buckley and Repatriation Commission [2002] AATA 1286
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Bey (1997) 79 FCR 364
Hillier v Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Bull v Repatriation Commission [2001] FCA 832
Kattenberg v Repatriation Commission [2002] FCA 412, (2002) 73 ALD 365
Repatriation Commission v Stoddart [2003] FCAFC 300, (2003) 77 ALD 67
Repatriation Commission v Gorton (2001) 110 FCR 321, (2001) 65 ALD 609
Ahrens and Repatriation Commission [2004] AATA 943
Repatriation Commission v Deledio (1998) 83 FCR 82, (1998) 49 ALD 193
Mines v Repatriation Commission [2004] FCA 1331
Woodward v Repatriation Commission [2003] FCAFC 160, (2003) 75 ALD 420
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Oakman and Repatriation Commission [1999] AATA 125
Holland v Jones (1917) 23 CLR 149
Re Kevin and Minister for Capital Territory (1979) 2 ALD 238
Hardcastle and Repatriation Commission [2000] AATA 723
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356REASONS FOR DECISION
8 December 2004 Mr S C Fisher, Member Introduction and Background
1. Mrs Marie Fields (the Applicant) is the widow of the late Francis (Frank) Bartholomew Fields (the veteran). The veteran was born on 4 March 1912. The veteran rendered operational service in the Middle East and South West Pacific theatres between 2 September 1940 and 13 February 1946. The veteran died on 7 April 1990, and his death was caused by ischaemic heart disease and hypertension. The Applicant lodged a claim for war widow’s pension on 5 February 2003 with the Repatriation Commission (the Respondent). The Respondent rejected the Applicant’s claim for war widow’s pension on 12 February 2003 on the basis that the death of the veteran was not related to service, and accordingly a war widows’ pension is not payable to the Applicant. The Applicant sought review of the 12 February 2003 decision from the Veterans’ Review Board (VRB). The VRB affirmed the decision of the Respondent on 25 March 2004. The Applicant appealed to the Tribunal on 5 May 2004.
Jurisdiction
2. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
3. The original decision under review is a decision made by the Respondent to reject the Applicant’s claim for war widow’s pension on 12 February 2003 on the basis that the death of the veteran was not related to service, and accordingly a war widows’ pension is not payable to the Applicant. More immediately, the decision that is being reviewed in these proceedings is the 25 March 2003 decision of the VRB.
The Role of the Tribunal
4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (FC 980809, unreported, Federal Court of Australia, QG205 of 1997, 29 June 1998, Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. According to section 119(1)(g) of the Act, the Tribunal must act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
The Material Before the Tribunal
5. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Undated statement of Mrs Marie Fields captioned “Re Francis Bartholomew Fields: Salt Intake”.
Exhibit 3Statement of Mrs Marie Fields dated 13 August 2004.
Exhibit 4Statement of Mrs Constance Vera Whitecross dated 29 May 2004.
Exhibit 5Statement of Mrs Freda Twible dated 29 May 2004.
Exhibit 6Statement of Mr Patrick G. Fields dated 29 May 2004.
Exhibit 7Report of Associate Professor Justin Kenardy PhD dated 7 September 2000.
6. The Applicant was represented by Mr D O’Gorman of counsel. Mr O’Gorman was instructed by Robert Bax and Associates, Solicitors. The Applicant’s counsel provided an outline of submissions to the Tribunal. An undated statement of Mrs Marie Fields captioned “Re Francis Bartholomew Fields: Salt Intake” was tendered on behalf of the Applicant and taken into evidence by the Tribunal as Exhibit 2. Statements of Mrs Marie Fields dated 13 August 2004, Mrs Constance Vera Whitecross dated 29 May 2004, Mrs Freda Twible dated 29 May 2004 and Mr Patrick G. Fields dated 29 May 2004 were tendered on behalf of the Applicant and were taken into evidence as Exhibits 3 – 6 respectively.
7. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. The Respondent tendered a report of Dr Justin Kenardy dated 7 September 2000, which was taken into evidence as Exhibit 7. The Respondent was represented by Mr Malcolm Smith, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions and an outline of submissions to the Tribunal.
Evidence
8. The Applicant gave evidence to the Tribunal in person. The following people gave evidence on behalf of the Applicant:
A.Mrs Constance Vera Whitecross
B.Mrs Freda Twible
C.Mr Patrick G. Fields (son of the veteran and the Applicant)
9. The Respondent did not call any person to give evidence. The author of the report taken into evidence as Exhibit 7, Associate Professor Justin Kenardy PhD, was overseas and was not available to give evidence.
10. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence of the Applicant
11. The evidence of the Applicant followed her statement of 13 August 2004 and her undated statement captioned “Re Francis Bartholomew Fields: Salt Intake”. The substance of the evidence of the Applicant given to the Tribunal is as follows:
A.The Applicant met her late husband after the end of the Second World War. The Applicant did not know his dietary habits before he went off to the war.
B.The Applicant described the veteran’s salt intake. In the case of breakfast, this consisted of half a tsp of salt added to a one- person serving of rolled oats.
C.For lunch, the Applicant would have meals comprising items such as celery, radish, carrots, tomato and corned beef to which he “piled of a heap of salt” estimated to be 2 tsp and more.
D.Although the Applicant could not recall exactly when the veteran told her that he took salt tablets during his war service, the Applicant said that this conversation took place many times before the veteran’s death.
E.The veteran used his own salt shaker with extra large holes in the top of it to allow the salt to flow freely.
F.In cross-examination, the Applicant said that the veteran liked his food “always salty”.
12. The Applicant presented as a truthful and credible witness. There were no issues of credit concerning her evidence.
Evidence of Mrs Constance Vera Whitecross
13. Mrs Constance Vera Whitecross worked in the Scarborough Nursing Home while the veteran was a patient in that facility. Mrs Whitecross said that the veteran complained frequently about the lack of salt in his food and that he was always seeking greater quantities of salt. Mrs Whitecross was not cross-examined. Mrs Whitecross presented as a truthful and credible witness.
Evidence of Mrs Vera Twible
14. Mrs Freda Twible and her late husband met Mr and Mrs Fields in the late 1950s. In her evidence, Mrs Twible described how the veteran was prone to eating very salty corn beef he prepared for himself. When he ate at the Twibles’, he sprinkled salt lavishly over everything. Mrs Twible was not cross-examined, and she presented as a truthful and credible witness.
Evidence of Mr Patrick G. Fields
15. Mr Patrick G. Fields is a son of the Applicant and the veteran. His evidence-in-chief consisted of his statement of 29 May 2004. In that statement, Mr Fields said that he estimated that his father consumed 39.7 grams of salt each day. Mr Fields was not cross-examined.
Report of Associate Professor Justin Kenardy PhD
16. A report supplied to the Respondent under cover of a letter dated 7 September 2000 from Associate Professor Justin Kenardy PhD was taken into evidence by the Tribunal as Exhibit 7. Associate Professor Kenardy was not available to give evidence and accordingly he was not cross-examined.
Discussion of the non-medical evidence
17. The only witness who was cross-examined was the Applicant. Nothing in the cross-examination shook the Applicant from her conviction based upon her observations of her late husband’s eating habits and from their occasional conversations about his salt preferences that her late husband consumed a lot of salt with his meals. The Tribunal was prepared to accept at face value the assertions of the other witnesses (besides Mr Patrick G. Fields) concerning the salt intake and salt preferences of the veteran.
18. The calculations of the salt consumption of the veteran by his son Mr Patrick G. Fields appear to be overstated and excessive. For example, Mr Fields deposes that at lunch, his father consumed corned beef containing 10.0 g of salt yet early in his statement Mr Fields recounts that he could not calculate the exact amount of salt involved when his father made corned beef (the veteran had been a butcher during much of his working life after military service). In addition, if one teaspoon of salt weighs 5 g, and the veteran happened to have half of 1 tsp of salt with his cooked rolled oats each morning, then is not possible for the veteran to have consumed 7.5 g of salt with breakfast (which overstates the veteran’s salt consumption by a factor of three). Nevertheless, putting aside these discrepancies, the evidence of Mr Fields corroborates his mother’s evidence that the veteran consumed a large amount of salt with his meals and that he had a preference for adding salt to his meals and consuming salty snacks outside of mealtimes.
Medical evidence
19. Medical evidence relating to the veteran was in evidence before the Tribunal (this formed part of Exhibit 1). The salient medical evidence is summarised as follows:
A.The veteran’s blood pressure was 128/88 at his discharge medical examination undertaken on 4 December 1945.
B.Hypertensive cardiovascular disease was diagnosed in 1962 when the veteran was 51 years of age. Hypertension was attributed as the cause of the veteran’s ischaemic heart disease. The duration of hypertension of two months proceeding October 1962 is recorded in the medical notes stating the conditions of “myocardial ischaemia” and “hypertension”.
C.In 1962, the veteran’s blood pressure was 180/120.
D.A certificate dated 31 July 1990 relating to the death of the veteran was in evidence before the Tribunal. The death certificate shows that the veteran died from “cardiac arrest due to (or as a consequence of) ischaemic heart disease.” The cardiac arrest was said to have been of “minutes” duration and the ischaemic heart disease was said to have been of “years” duration.
E.The veteran was not a smoker.
Discussion of the Medical Evidence
20. The Tribunal noted that the death certificate relating to the veteran did not attribute his ischaemic heart disease to any other causes, for example, hypertension. The medical evidence does not record a secondary cause of the veteran’s hypertension.
21. Associate Professor Kenardy’s September 2000 report (Exhibit 7) is captioned “Background Report: Veterans’ Affairs Consultancy”. This report did not address (and could not address) the particular psychological and physiological effects of salt consumption by the veteran as the report post-dates his death by a decade. It appeared to the Tribunal that this report is more in the nature of a background briefing note, albeit researched and referenced according to the conventions of clinical psychological research. The Tribunal considered this report carefully but determined that it did not carry a great deal of weight in these proceedings. The Tribunal is aware that Associate Professor Kenardy’s September 2000 report (described as “generic” by counsel for the Applicant in his closing submission) has been considered in previous Tribunal decisions, including Buckley and Repatriation Commission [2002] AATA 1286. The operative norm of consistency in Tribunal decisions does not require that evidence considered in earlier cases be treated the same way in later cases.
Issue
22. The issue before the Tribunal is whether the veteran’s death from the medical conditions of ischaemic heart disease and hypertension was war-caused within the meaning and operation of section 9 of the Act. It is common ground that if the Applicant is successful in her claim, the date of effect would be 5 November 2002.
Applicant’s Submissions
23. In essence, the Applicant contended that the veteran’s salt consumption was related to his war service because he consumed salt tablets that were issued to him while on active service. The Applicant contended that the veteran’s conditions were connected with operational service. The Applicant contended that the veteran’s ischaemic heart disease was caused by hypertension within the meaning of Statement of Principles (SoP) contained within Instrument No 53 of 2003, as amended by Instrument No 9 of 2004, especially Factor 5(a) which provides for the presence of hypertension before the clinical onset of ischaemic heart disease. The Applicant also relied upon Instrument No 35 of 2003, as amended by Instrument No 3 of 2004, especially Factor 5(c) which provides a connection between hypertension and ingesting “at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six month before the clinical onset for hypertension.” The Tribunal considered carefully the written submissions of the Applicant.
Respondent’s Submissions
24. The Respondent’s submissions can be summarised as follows:
A.The respondent accepted that the veteran was consuming at least 12 grams of salt supplements per day within Factor 5(c).
B.The issue of salt tablets by the Army to the veteran did not, on the evidence available, modify the salt consumption of the veteran because nothing was known about the veteran’s salt preferences or salt consumption before his eligible war service.
C.The Respondent contended that the Applicant has not adduced any evidence that the veteran had increased his salt consumption from the time before his eligible war service to the level of 12 grams average daily salt supplements within Factor 5(c). This was coupled with a contention that the test of whether the veteran’s death would not have occurred but for him having rendered eligible war service and but for changes in his environment consequent upon his having rendered eligible war service within section 8(1)(d) was relevant.
D.It is not open for the Tribunal to make assumptions (such as the veteran’ pre-war salt consumption) in order to ground the operation of a SoP: Repatriation Commission v Hill (2002) 69 ALD 581 at 597.
E.The ruling of the Federal Court in Repatriation Commission v Bey(1997) 79 FCR 364 at 373; 37 ALD 481 that there must be material pointing to a connection between the veteran’s disease and his or her war service meant that the Tribunal had to find that there was material in this case pointing to a connection between the veteran’s diseases of ischaemic heart disease and hypertension and his war service. The respondent contended that there was no such connection.
The Legislative Framework
25. Section 9 of the Act provides for when an injury or disease is taken to be war-caused. The expression “operational service” which appears in section 9(1)(a) of the Act is defined in sections 6 to 6F of the Act. Under section 6A, a person renders operational service if he or she was rendering continuous full-time service of the relevant kind. Further, section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
26. In Schmidt v Repatriation Commission[2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
27. As the veteran has performed operational service, as defined in section 6 of the Act, the determination of whether his conditions of ischaemic heart disease and hypertension are war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
28. Authority establishes that when applying section 120(3), decision-makers (including this Tribunal) must look at all the material, not just some of it, that is before the decision-maker, including material that supports and opposes the formation of the reasonable hypothesis. It is not entitled to find facts or reject matters. The decision maker must consider the whole of the material before it – see Bull v Repatriation Commission [2001] FCA 1832 at [21] and Kattenberg v Repatriation Commission[2002] FCA 412 at [38] and [39].
29. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
30. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
31. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of ischaemic heart disease and hypertension pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under subsection 180A(2) that are relevant to this case, and the parties did not contend to that effect. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609 the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. An SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission(2002) 73 ALD 365 at [42].
32. There was no dispute between the parties that the veteran had rendered operational service, and that sections 120(1) and 120(3) of the Act apply. As this Tribunal said in Ahrens and Repatriation Commission [2004] AATA 943:
“[25] The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the Applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.”
33. In cases such as the present, the approach for decision makers such as this Tribunal to take is marked by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio four step approach the Tribunal must be satisfied (to a standard of reasonable satisfaction) the Applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
34. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act. On the basis of the medical evidence before the Tribunal, it is satisfied the veteran suffered from ischaemic heart disease and hypertension.
Application of the law to the injuries alleged to be war-caused
§ Deledio Steps
35. In Deledio the Full Federal Court summarised (at 97) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
36. In Mines v Repatriation Commission [2004] FCA 1331, Gray J made these important observations about the Deledioreasoning process:
“[37] … The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
Gray J went on to say at
“ [38] Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” In this case, two sets of facts to be connected are whether the Applicant has PTSD, alcohol abuse or dependence or depressive disorder and whether he has rendered operational service. The evidence before the Tribunal establishes that the Applicant has medical conditions and that he rendered operational service and the Tribunal is reasonably satisfied that those things occurred. This concludes the preliminary or antecedent investigation before the first Deledio step is applied.”
The first Deledio step
37. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the injury or disease to the service rendered by the veteran. The Applicant’s contention is that the veteran’s medical conditions of ischaemic heart disease and hypertension are related to service. The Tribunal noted that in this case no contention is made on behalf of the Applicant that the veteran’s medical conditions are a result of defence service as distinct from being war-caused.
The first Deledio step: ischaemic heart disease
38. Keeping in mind the observations of the Federal Court in Mines v Repatriation Commission, the Tribunal is satisfied that there is a hypothesis connecting ischaemic heart disease with the service of the veteran. The particular event is part of the chain of events in that that the veteran consumed salt during his war service, the salt consumption caused his hypertension and the hypertension caused his ischaemic heart disease.
The first Deledio step: hypertension
39. Keeping in mind the observations of the Federal Court in Mines v Repatriation Commission, the Tribunal is satisfied that there is a hypothesis connecting ischaemic heart disease with the service of the veteran. The particular event is part of the chain of events in that the veteran consumed salt during his war service and this salt consumption caused his hypertension.
§ The Second Deledio Step
40. The second Delediostep is to determine the relevant SoPs. In this case, the relevant SoPs are:
o Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease);
o Instrument No 35 of 2003 (hypertension), as amended by Instrument No 3 of 2004 (hypertension).
§ The third Deledio step
41. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 34. The Tribunal cannot make findings of fact at this point. In this case, the claimed connection from the relevant chain of events is that the veteran’s excessive salt intake caused his hypertension and his hypertension caused or contributed to his ischaemic heart disease. The Tribunal proceeded to consider the relevant SoP, beginning with that relevant to hypertension. The Tribunal decided that it was appropriate to consider the relevant medical evidence in a global fashion after noting the relevant SoP.
§ The third Deledio step: hypertension
42. Relevant excerpts from Instrument No 35 of 2003 (hypertension), as amended by Instrument No 3 of 2004 (hypertension) are as follows:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about hypertension and death from hypertension.
(b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:
(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii) the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
…
(d) In the application of this Statement of Principles, the definition of “hypertension” is that given at para 2(b) above.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
…..
(c) ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension;
Other definitions
8. For the purposes of this Statement of Principles:
‘salt supplements’ means salt added to food when cooking or eating, or salt contained in salt tablets.”
§ The third Deledio step: ischaemic heart disease
43. Relevant excerpts from Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease) are as follows:
“Kind of injury, disease or death
2.(a) ….
(b) For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
(a) the presence of hypertension before the clinical onset of ischaemic heart disease;
…..”
§ The discussion of the medical evidence and the SoP
44. The only factors from these two Instruments relied upon by the Applicant are those extracted above. Independently of how the Applicant conducted her case, the Tribunal was satisfied that no other factors from these two Instruments are relevant in any case as there is no evidence of the material suggesting this.
45. The medical evidence before the Tribunal establishes that the veteran suffered from hypertension for the two months proceeding October 1962. The Applicant contended that the veteran’s salt consumption during his war service was the causal link of his hypertension. The Applicant contended that the veteran was “possibly hypertensive” in the 1950s. There is no medical evidence of an earlier date of onset of hypertensive symptoms. In her oral evidence, the Applicant said that her late husband’s treating doctors had both died and she was not able to obtain her husband’s medical records. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; 37 ALD 481 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
46. The Applicant contended that the decision of this Tribunal in Oakman and Repatriation Commission [1999] AATA 125 was persuasive in this case. In particular, counsel cited paragraph [9] where this Tribunal said:
“[9] The Tribunal finds that the blood pressure of the deceased was normal on discharge from the Army 1946, but had developed to its severe form in a relatively young age; that is, well before he was 50 years of age. There is a reasonable hypothesis consistent with the statement of principles linking the deceased’s war service to his excess of salt intake to the hypertension which eventually caused his death”.
47. In his closing address, counsel for the Applicant urged the Tribunal (in effect by analogy) to take judicial notice of the fact that there was a culture of taking excess salt in food and taking salt tablets in tropical and military environments. Counsel cited the finding of fact by this Tribunal in Oakman and Repatriation Commission [1999] AATA 125 at para [3](g) in support of this contention.
48. Judicial notice is a shorthand method of adducing evidence relevant to the adjudication of a dispute by a court or tribunal. The underlying premise of the doctrine of judicial notice is adjudicative economy and efficiency. As the High Court said in Holland v Jones(1917) 23 CLR 149 at 153, if a fact is a member of a class that is so notorious and generally known there is a presumption that everyone is aware of it. It is then unnecessary for the parties to be put to the trouble and expense of adducing evidence to establish this notorious and generally known fact. Counsel for the Applicant did not refer to section 144 of the Evidence Act 1995 (Commonwealth), which provides a method of proving matters of common knowledge in parallel with the common law doctrine of judicial notice. The Tribunal is not bound by the rules of evidence (Administrative Appeals Act 1975, section 33(1)(c)), so therefore section 144 of the Evidence Act 1995 is not strictly binding on it. Nevertheless, the Tribunal proceeds on the basis that it does not ignore completely the rules of evidence or the principles which undergird specific rules of evidence: Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 at 241 – 242. The Tribunal did not find it necessary to explore whether the analogous doctrine of official notice was what really the Applicant contended should apply in this case.[1]
[1] See TJH Jackson, “Administrative Tribunals and the Doctrine of Official Notice: ‘Wrestling with the Angel’” in M Harris & V Waye, Administrative Law (The Federation Press/Adelaide Law Review Association, Sydney, 1991), pp 120 – 145.
49. It may be that the Applicant’s counsel was urging the Tribunal to make a finding of fact in this particular case that the veteran’s salt intake was higher than expected because of a culture of taking excess salt in food and taking salt tablets in tropical and military environments. From this baseline, counsel urged the Tribunal to determine that this fact fitted or was consistent with the relevant SoP. Findings of fact made in earlier Tribunal proceedings between different parties do not bind a later Tribunal involving different parties any more than in court proceedings (unless the doctrine of issue estoppel can be invoked, which it cannot in this case). In this case, the Tribunal is not persuaded that it can or should take judicial notice of the existence of a culture of taking excess salt in food and taking salt tablets in tropical and military environments. In this case, there is abundant evidence before the Tribunal that after his relevant service concluded, the veteran was in the habit of consuming large quantities of salt with his meals and that he ate salty snacks between meals. The Tribunal noted that the Respondent conceded that the veteran had ingested the requisite amount of salt supplements in the relevant timeframe within Factor 5(c) of Instrument No 35 of 2003.
50. There is no evidence before the Tribunal of the veteran’s eating habits before his army service. This contrasts with Oakman and Repatriation Commission [1999] AATA 125. The veteran’s blood pressure was normal on discharge from the Army.
51. Factor 5(c) of Instrument No 35 of 2003 requires that the veteran must have ingested 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. The definition of “salt supplement” (extracted above) means salt added to food when cooking or eating, or salt contained in salt tablets. Authority establishes (albeit in relation to Instrument No 65 of 1998 concerning hypertension) that “salt supplement” does not include salt added to food during manufacture or processing: Hardcastle and Repatriation Commission [2000] AATA 73 at para [17]. In this case, there is evidence that the Applicant made his own corned beef to which he added large quantities of salt in the course of manufacture. Accordingly, whatever the amounts of salt that were in fact added to the corn beef during its manufacture, that amount of salt must be excluded from calculation. The concession of the Respondent in this case goes towards the quantitative requirements of this factor. This concession also relieved the Tribunal from undertaking the difficult evidential task of determining exactly how much salt the veteran consumed.
52. The factual concession made by the Respondent must be read in light of clause 4 of Instrument No 35 of 2003, which reads “4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.” The Respondent’s concession does not, in terms, concede the causative relationship between salt consumption and the clinical onset of hypertension required by the SoP. The clinical onset of hypertension in this case, based on the evidence before the Tribunal, is that the veteran experienced hypertension in the two months preceding October 1962. Clause 4 requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that (a) the veteran has rendered “relevant service” within the meaning of clause 8 of the SoP, and (b) the veteran consumed the requisite amount of salt during service and after service. The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of Instrument No 35 of 2003 does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters.
53. In light of this reasoning, the question for the Tribunal is whether it is satisfied that there is a relationship between in the salt consumption of the veteran and his relevant service that meets the requirements of the SoP. The particular relationship the Tribunal identifies is that the veteran consumed salt tablets during his operational service (a subset of “relevant service”), his salt consumption continued after his relevant service at a level conceded to be equal to the SoP quantitative standard and this was a factor that led to the clinical onset of hypertension. In turn, the clinical onset of hypertension was a causative factor before the clinical onset of ischaemic heart disease. Accordingly, the Tribunal is satisfied that the veteran’s conditions of hypertension and ischaemic heart disease fit the relevant SoPs.
54. The Tribunal considered section 8 of the Act, which was invoked by the Respondent in support of the contention that the veteran’s death was not war-caused. Section 8 provides criteria that are relevant to the determination of war-caused death. Section 8(1)(d) provides two tests of causation. The first is between eligible war service of the veteran and his or her death and the second is between environmental changes after the veteran rendered eligible war service and his of her death. There is no evidence before the Tribunal of the veteran’s salt consumption before his eligible war service, which makes it difficult (but not impossible) for the Tribunal to apply “but for” test posited by section 8(1)(d). In the opinion of the Tribunal, the test of causation embedded in section 8(1)(d) does not depend upon the philosophical nuances of causation, but instead it relies upon a commonsense approach to causation. In this case, there is clear evidence that the salt consumption of the veteran took place during eligible war service. The respondent conceded that this level of salt consumption continued at the requisite level after the veteran’s eligible war service. Using a commonsense approach to causation, including consideration of the factor that single as well as multiple causes can lead to designated effects, the Tribunal is satisfied that there is the necessary linkage or relationship between salt consumption of the veteran and his conditions of ischaemic heart disease and hypertension. Alternatively, in the opinion of the Tribunal, post-service environmental changes of the veteran in the nature of the evidence that he worked for a time as a butcher and also made his own corned beef were causative of the medical conditions that he contracted that led ultimately to his death and these changes were related to his eligible war-service.
55. The Tribunal adds that but for the concession by the Respondent, the Tribunal was not satisfied that the evidence before the Tribunal established that the veteran consumed or ingested the requisite amount of salt required by the SoP.
The fourth Deledio step: findings of fact
56. As the Tribunal has determined that both of the hypotheses fit within the SoP templates, it is then necessary for the Tribunal to proceed to engage in fact-finding. The Tribunal must then proceed to consider under section 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. In this case, the Tribunal is not satisfied beyond reasonable doubt that the death of the veteran was not war-caused.
The fourth Deledio step: findings of fact concerning hypertension and ischaemic heart disease
57. Where the Tribunal is not satisfied beyond reasonable doubt that the death of the veteran was not war-caused, then the fourth Deledio step requires the Tribunal to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
58. Accordingly, the Tribunal is to decide the issue of liability for the veteran’s hypertension and ischaemic heart disease to its reasonable satisfaction in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. The relevant SoP have been identified above as Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease) and Instrument No 35 of 2003 (hypertension), as amended by Instrument No 3 of 2004 (hypertension).
59. Based on the evidence and material before it, the Tribunal finds that:
(a)The late Francis (Frank) Bartholomew Fields (the veteran) was born on 4 March 1912.
(b)The veteran rendered operational service with the Australian Army in the Middle East and South West Pacific theatres between 2 September 1940 and 13 February 1946.
(c) The Applicant is the widow of the veteran.
(d)The veteran died on 7 April 1990, and his death was caused by ischaemic heart disease and hypertension.
(e) The veteran was not a smoker.
(f)The Applicant lodged a claim for war widow’s pension on 5 February 2003 with the Repatriation Commission (the Respondent).
(g) The Applicant appealed to the Tribunal on 5 May 2004.
(h)The veteran ingested at least 12 grams (200 mmol) of salt by means of salt tablets during his operational service.
(i)A medical examination undertaken of the veteran on 4 December 1945 soon before his discharge from the Army recorded a blood pressure reading of 128/88.
(j)In October 1962, the veteran’s blood pressure was 180/120 and the treating medical practitioner recorded (i) a diagnosis of “myocardial ischaemia” and “hypertension”, and (ii) that the veteran had reported the symptoms were of two months’ duration before that medical consultation.
(k)After the end of his operational service, the veteran ingested at least 12 grams (200 mmol) of salt supplements per day on average by way of salt added to his food during cooking or eating up until 7 April 1990.
(l)The ingestion of salt under finding (k) was during the continuous period of at least six months immediately before the clinical onset of hypertension.
60. The date of effect for this decision is from 5 November 2002.
Tribunal’s Conclusion
61. The Tribunal concludes that the veteran’s death was caused by or contributed to by service-related hypertension and ischaemic heart disease.
Tribunal’s Order
62. For these reasons, the Tribunal decides:
(a)to set aside the VRB decision under review of 25 March 2003 and in substitution the Tribunal finds that the conditions of hypertension and ischaemic heart disease of the veteran from which the veteran died were caused or contributed to by the veteran’s operational service in the Australian Army and are therefore war-caused with effect from 5 November 2002; and
(b)to remit the matter of assessment of widows’ pension in relation to the Applicant to the Repatriation Commission.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher
Signed: Camille Banks
Associate
Date of Hearing 8 October 2004
Date of Decision 8 December 2004
Counsel for the Applicant Mr D O’Gorman
Solicitor for the Applicant Robert Bax and Associates
For the Respondent Mr M Smith, Departmental Advocate
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