Flint and Repatriation Commission
[2006] AATA 889
•19 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 889
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/692
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN FLINT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander Date19 October 2006
PlaceSydney
Decision The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that Mr Flint’s hypertension is to be accepted as war-caused and his disability pension reassessed accordingly.
[Sgd] Presiding Senior Member
Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS – claimed increase in pension for hypertension due to excessive salt intake – salt tablets - issue whether hypothesis raised – Statement of Principals – meaning of clinical onset – decision under review set aside.
LEGISLATION
ss 9, 120, 120A Veterans’ Entitlement Act 1986
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill (2002) 69 ALD 581
Byrnes v Repatriation Commission (1993) 177 CLR 564
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
RepatriationCommission v Cornelius[2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander 1. Mr John Flint served in the Australian Army as a radio and switch board operator with clerical duties, from 17 August 1942 to 22 August 1946. He served in the Northern Territory (“the Territory”) between Adelaide River and Darwin for about three and a half years, from 1 October 1942 to 23 March 1946. He is now 83 years old.
2. Mr Flint is appealing against the decision that his hypertension was not war-caused. On 5 May 2005, the Veterans’ Review Board (“the VRB”) affirmed the decision to that effect made by the Repatriation Commission (“the Commission”) on 10 December 2003. However, the VRB found that Mr Flint’s service was operational service, not eligible service as found by the Commission. That finding is not contested in these proceedings.
The Issue
3. It is accepted by both parties that Mr Flint suffers from hypertension. The issue in this case is whether the hypertension was war-caused pursuant to s 9 of the Veterans’ Entitlement Act 1986 (“the VEA”).
The Law
4. Sections 120 and s 120A of the VEA apply as this claim was made after 1 June 1994. The proper analysis that needs to be undertaken was set out in Repatriation Commission v Deledio (1998) 83 FCR 82 (later qualified by Repatriation Commission v Hancock (2003) FCA 711; see also Repatriation Commission v Hill (2002) 69 ALD 581). Relevantly, the Deledio analysis involves:
1.The Tribunal must consider all the material before it to determine whether an hypothesis is raised connecting the injury, disease or death with the circumstances of the particular service rendered by the applicant. The application fails if an hypothesis is not raised.
2.If there is an hypothesis then the Tribunal must consider whether there is any relevant Statement of Principle (“SoP”) under the Act.
3.If so, the Tribunal must consider whether the hypothesis raised is reasonable, that is, whether it satisfies the minimum factor(s) set out in the SoP.
4.If so, the Tribunal must then consider whether it is satisfied beyond reasonable doubt that the injury or disease was not war-caused. If it is not satisfied beyond a reasonable doubt that the injury was not war-caused then the application must succeed. At this stage the tribunal will be required to find facts on the material before it.
The Evidence
5. It is convenient to summarise the relevant evidence before proceeding to the analysis. There is in evidence blood pressure readings of 136/90 (or possibly 130/90) on 19 July 1946 during Mr Flint’s Medical Examination Prior to Discharge (T3), and of 150/90 in 1960 (according to the index to the T documents) or 1959 (according to various accounts given by Mr Flint), when he saw a Repatriation Department doctor about skin trouble (T4 page 13).
6. It is helpful to set out Mr Flint’s evidence in chronological order. In doing so, we only include new or altered information and do not repeat information that has been set out earlier in the summary.
7. In his claim dated 11 November 2003, it is stated that he developed hypertension a few months after discharge in 1946 and that “We were given in excess of 14-16 grams of SALT per day for approx 3 yrs”.
8. In a handwritten document dated 6 November 2003, Mr Flint begins
“Standard of Proof: Reasonable Hypothesis
Ingestion of at least 12 grams of salt supplement per day on average for a continuous period of at least 6 months before clinical onset of hypertension.”
9. In that document he stated that he was required to take 12 grams of supplements for the majority of his service in the Territory over 3 ½ years which was in addition to the salt intake in meals “(ave. 10 grams)”. He also stated that after discharge in 1946 he continued to use what is now regarded as excessive salt intake by addition with meals and cooking. “I considered this necessary to replace fluid lost and to maintain physical activity”. He said that he had lived at his present Clovelly address since 1956 and attended Dr Pennington there who diagnosed a high blood pressure level. The readings over time varied between 170/90 to 180/90 and may have been higher for limited periods. The doctor prescribed various tablets which lowered the blood pressure to an acceptable level (140/90) with regular testing. This treatment continued following his retirement in 1985 and until Dr Pennington’s death in 1993 when he transferred to the care of Dr Burns who continued treatment. His current medication is Metoprolol and his latest reading was 120/80. Both doctors advised a reduction in salt intake since hypertension was diagnosed. Mr Flint considered that the high salt intake during Army Service by way of supplements and with meals, and the continued high use of salt immediately after discharge has at least contributed to his hypertension. He referred to SoPs Nos. 35 and 36 of 2003.
10. He provided with that document, a letter from his wife also dated 6 November 2003 and a letter from Dr Burns. His wife “verified” that he was required to take salt tablets daily during his service in the Territory. She served in the AWAS from 1944 to 1945 in the Territory and was required to take salt tablets during that period. Dr Burns confirmed that Mr Flint had been treated by that practice for hypertension since 1993 and that there was no record of readings from his previous doctor who had died
11. Mr Flint attached statutory declarations from himself, his wife and Mr Hogan to his letter written on 16 March 2004 in which he set out material about his hypertension claim, including information previously given. Further or new information was that after discharge he attended Dr Twohig (deceased) of Mosman on occasions while he resided in that area, and that that doctor had detected elevated blood pressure readings but did not prescribe medication. On relocating to Coogee, he went to Dr Pennington who diagnosed elevated blood pressure readings of 180/90 and possibly higher, and prescribed Inderal and Betelock for the condition. Mr Flint referred to SoP No. 36 and the possible causes of hypertension and said that they included no other conditions from which he suffered, and stated that he was employed in clerical positions in the Public Service from 1946 to 1985 and was not under undue stress.
12. In his undated statutory declaration [T38, page 90] attached to that letter, Mr Flint stated that over 3 years in the Territory, he was required to take 2 salt tablets daily which was 15 grams, in addition to salt added to meals.
13. In his statutory declaration of 20 June 2004 he stated that on several occasions after discharge while employed in the Commonwealth Public Service, Dr Pennington issued medical certificates for leave due to hypertension. He provided the statement because Dr Pennington’s practice closed following his death in 1993. He also referred to the 1946 and 1959 blood pressure readings.
14. In an undated submission made after the decision on internal review was made on 31 August 2004 rejecting his claim, Mr Flint referred to the standard of proof being reasonable hypothesis and the factor being ingestion of 15 grams of salt supplements per day for a continuous period of at least 6 months. He referred to SoP 36. He also wrote that Dr Twohig examined him in the late 1940s and detected elevated blood pressure levels but did not prescribe medication.
15. In its decision of 5 May 2005, the VRB records that Mr Flint attended the VRB hearing with his representative from Legacy and that his representative stated that he recognised the evidentiary problems in relation to the date of clinical onset of hypertension. He referred to the July 1946 and the 1960 blood pressure readings. The decision sets out Mr Flint’s case as put to that Tribunal. It was that in 1946, after discharge from the Army, he visited his wife’s family doctor, Dr Twohig, for a general check-up and the doctor remarked on his elevated blood pressure. Four years later, he began to consult Dr Pennington. Dr Pennington advised him that his lower blood pressure reading was always elevated and by the 1960s that doctor had prescribed medication and continued to do so until his death in 1993. Dr Pennington advised Mr Flint to cut down his salt intake as that may have been a factor in causation. He said that while in the Territory he took two salt tablets but may have taken three because his friend, Mr Hogan, recalled three tablets.
16. In his written statement dated 19 August 2005 Mr Flint claims that during his service in the Territory, he was required to take 12 grams of salt supplements per day for the majority of his service because of the extreme heat and because the supplements were thought to achieve better results physically. Combined with the salt added to meals, Mr Flint estimated that his consumption of salt would have been 15 grams per day. After his discharge in August 1946, he continued to use what is now regarded as excessive salt intake by adding salt to meals and using salt in cooking at those meals. He considered this necessary to replace fluid loss and to maintain physical fitness and activity. Mr Flint stated that just before his wedding in September 1946 he saw a Dr Twohig at Mosman who diagnosed elevated blood pressure readings but did not prescribe any medication. He did not consult a doctor again until the 1950s when came under the care of his local medical officer, Dr Pennington, whom Mr Flint said managed his blood pressure for over 30 years until the doctor died in 1993. He said that Dr Pennington diagnosed his elevated blood pressure and the readings he took varied over time from 170/90 to 180/90. That doctor provided him with medical certificates for absences from work because of blood pressure. In oral evidence he said that this occurred when he worked for both the Post Master General’s Department, which he left in about 1970, and the Attorney-General’s Department which he then joined. Dr Pennington stabilised his condition with medication “probably around 1970”. Dr Burns and his current general practitioner have continued treating him. He also saw a doctor from the Department of Veteran’s Affairs in 1959 about his claim for Solar Keratoses. His blood pressure reading was 150/90.
17. Following is a summary of Mr Flint’s oral evidence not already referred to. He said that he trained for a short time in Victoria, then served about three and a half years in the Territory, followed by about three or four months at Warwick Farm in Sydney prior to discharge. In the Territory he worked in the signal office. As information came in he collated it and then sent it off by mail or motor bike dispatch riders. He also operated a switchboard and used Morse Code.
18. He said that the food was very bland. They were informed that it was necessary to take salt tablets in tropical areas because it was a help for physical activity and because you lost so much sweating, particularly in the wet season. They were issued with salt tablets to take after each meal. His recollection at the hearing was that he took three a day, one after each meal. He was definite that that was the case in the wet season, but he could not be sure that was so in the dry season. Then it may have been two or three. They were large salt tablets. He said that there were apparently two types. They were about the size of a thumb nail and he understood that they were about 2 gms. They were handed out in different camps. Most of the time as he went past to get a meal a duty officer was there near a large container of salt tablets and saw that you took the tablets. On occasions, he took three out at once for the day.
19. In cross-examination Mr Flint was asked about his handwritten statements where he had said he had taken two salt tablets a day. He said that when he asked Mr Hogan, he was reminded that they had taken three every day during the wet season and two or three otherwise. He also had it in his mind that they were more emphatic that they take them during the wet season when they were sweating more. He was also asked about telling the VRB that he took two salt tablets but in his statement made after that, he had calculated 15 gms of salt. He said that did that calculation on the basis of taking three two gram tablets a day, which was six grams, other information including from Mr O’Keefe, historian, and that he was a heavy user. He calculated 9 grams of salt from cooking and what was added at the table plus the six grams from the salt tablets. He did not take salt tablets after he left Darwin.
20. In his oral evidence, Mr Flint also said that while he was in the Army the cooks put salt in some of the meals and it was also available on the table. He used extra salt. He had used salt to a limited degree or an average amount when he was a teenager living at home before going into the Army, but given the advice he had been given, he tended to be liberal with it as it may do some good and would not do any harm. The amount varied, depending on the food. He probably used a level teaspoonful at two meals a day - lunch and dinner or breakfast and dinner. He had powdered egg a lot and you want something on that. He would say 15 times in a 7 day week.
21. He thought that was the position generally when he was in the Territory because he was at Adelaide River north. He would have that amount of salt at 15 meals a week while in the Territory.
22. He married straight after the war. His wife was a heavy user of salt. She used it in her cooking and he used quite a bit at the table. He continued to be a heavy user of salt until his blood pressure gradually increased from when he was discharged in 1946. He started getting high blood pressure readings of both levels in the1960s. Dr Pennington advised him in the late 1960s or early 1970s to reduce his salt intake. He was put on medication around the same time. He said that his wife “continued on her way” but stopped putting it in her cooking. At one stage he did not use salt at all. He was offered an alternative which he did not like. He now uses little.
23. He illustrated his salt intake after the war until he stopped using it, as follows. If he had a boiled egg for breakfast following cereal, he could use a level teaspoon of salt with the egg. He and his wife ate lot of salads in the summer months. He put a liberal amount of salt, a level teaspoon full, on lettuce, celery and tomatoes. He used a liberal amount of salt on baked meals and fish and chips. He would put a level teaspoon of salt on most meals – not every single meal. That would be three teaspoons a day apart from what was put in during cooking
24. He could not remember the name of the tablets he was put on first for his blood pressure. Professor O’Rourke had also asked him that. There had been many changes over 30 odd years. The second kind of medication was probably Inderal. At some time while he was on that he saw the doctor for a normal check-up. The doctor told him he was taking him off Inderal as it was not the best available, and was putting him on something else. He currently takes Metoprolol which has stabilised his blood pressure at 120 or 130 over 80.
25. He said that he usually asked Dr Pennington about his blood pressure. He said that it varied from 150 up to 180 for the higher reading and up to 90 to 95 for the lower reading in the period when he put him on medication. His blood pressure reading then dropped down considerably.
26. Mrs Flint stated in her statutory declaration which accompanied her husband’s letter of March 2004, that while she was serving in the Territory for about 18 months from 1944 to 1945, she was required to ingest at least 15 grams (2 tablets) of salt supplements each day, “This was necessary to overcome the extreme heat conditions in that tropical area”.
27. Mr Raymond Hogan who served in the same unit as Mr Flint, provided a statutory declaration dated 17 February 2004 which accompanied Mr Flint’s March 2004 letter. Mr Hogan said that while he was serving in the Territory he took three salt tablets daily, each equivalent to one teaspoon. He also said that shortly before he left the Territory, the supply of tablets ceased as it was believed that they could be harmful. He spent three wet seasons there.
Evidence from an historian
28. Mr O’Keefe, an historian, provided a report dated 2 September 2005, relevantly, about the use of salt supplements/tablets in the Australian forces during World War 2 generally, and his view about Mr Flint’s claim that he ingested at least 15 grams of salt daily. Mr O’Keefe estimated that approximately 7 grams of salt would have been added to each person’s food during cooking and at the table.
29. The war diaries of 17 Line of Communication Signals (Mr Flint’s unit) does not include orders about salt supplements, however Mr O’Keefe was of the view that this does not signify that salt tablets were not issued to the unit. Routine orders such as that would not always be included in War Diaries.
30. Mr O’Keefe considered that it was unlikely Mr Flint would have ingested 15 grams of salt daily. He stated that one tablet generally contained half a gram of salt, or at most 2 grams of salt if they were the larger tablet sometimes used in the Navy. Based on Mr Flint’s evidence that he consumed 2 tablets each day this would therefore amount to one gram of salt or 4 grams if he took the larger tablets.
31. Combined with salt added to food Mr O’Keefe calculated on average that Mr Flint would have ingested 8 grams (or 11 grams with the larger tablets) by way of tablets, salt added during cooking and salt sprinkled over food. “These amounts would vary if he had consumed more tablets or sprinkled salt on his food more liberally than the average person”. Mr Kelly also said that the wet season in the Territory extends from November to April. His evidence was that 1 teaspoon of salt was 5 grams.
Medical Evidence
32. A report dated 19 February 2006 from Dr Butler, consultant physician with a major interest in clinical cardiology, stated that at the time of Mr Flint’s discharge a reading of 136/90 would not have been regarded as “abnormal” and is probably the reason why a regular follow up was not recommended. Dr Butler also reported that Mr Flint thought that medication was probably started in the mid-1960s. Dr Butler noted the discharge blood pressure record of 136/90 and said that if Mr Flint’s evidence of raised blood pressure prior to his wedding in 1946 is accepted, then the clinical onset of hypertension would be 1946, otherwise a date some time about 1960 or after would have to be accepted. However Mr Butler raised the issue that the ‘initial figure’ was recorded some five months after Mr Flint left the Territory, so the time factor in 5(c) of the SoP may not be met, that is the requirement that salt supplements were ingested for a “period of at least six months immediately before the clinical onset of hypertension”.
33. We had the benefit of oral and written evidence from Professor O’Rourke, cardiovascular physician. In his opinion, there was no suspicion of hypertension in 1946 when the blood pressure reading of 130/90 or 136/90 was recorded which would have been regarded as normal according to the standards of the day for a person aged 36. He said that the records of the time show that there was no thought given to further readings and no attention given to the urine for glucose, or to an investigation of other organs, for example the eyes and, kidneys. He noted a blood pressure reading in 1959 of 150/90 when no medication was recorded and no further readings were taken. Professor O’Rourke stated that people with such a blood pressure reading were not treated in the mid 1950s. He also concluded on the basis of various text books that Inderal, which Mr Flint told him he was taking from the 1950s, was not used for that purpose until the late 1970s. On the basis of the information he had, Professor O’Rourke determined that clinical onset of hypertension occurred in the late 1970s or early 1980s, while Mr Flint was being treated by Dr Pennington. In his oral evidence he said diagnosis was from 1970 until 1993.
34. Professor O’Rourke expressed the opinion that blood pressure settles lower and lower over time during one consultation and while people are seating or resting. If other diastolic readings had been done, they would have been lower. Contrary to that assertion, in his report, Professor O’Rourke noted that on examination on 4 November 2005, Mr Flint’s blood pressure was high, at 178/94 taken on a number of occasions and despite antihypertensive therapy. He also commented during his oral evidence that 10% to 15% of people in their early 30s are diagnosed with hypertension, and it is most commonly diagnosed over the age of 50, 40% of people being diagnosed at that age and 90% at the age of 90.
35. In his report Professor O’Rourke expressed the view that the material in the T documents did not support a view that Mr Flint had hypertension at the end of service of even in 1959, “if this be regarded as persistent elevation of arterial pressure above the level of 140/90”. He also said that for a diagnosis to be made, multiple recordings would have needed to have been taken. An isolated blood pressure level of 150/90 at age 36 is insufficient to make a diagnosis of hypertension
36. During cross-examination, Professor O’Rourke conceded that it was possible but unlikely, that Mr Flint’s usual diastolic reading was 90 throughout the period July 1946 to 1960, given the readings in 1946 and 1960, and that Mr Flint had also been told in late 1946 that his blood pressure was slightly elevated.
Consideration
1. Does the material before the Tribunal raise an hypothesis connecting Mr Flint’s hypertension with his service?
37. The hypothesis proposed in Mr Flint’s case is that his taking salt tablets and increasing his use of salt otherwise during service in the Territory and later, caused or contributed to his hypertension, the clinical onset of which occurred in 1946. In particular, Mr Colbourne relied on the July 1946 blood pressure reading. He explicitly chose to proceed on the basis of clinical onset in 1946 only. Accordingly, we only consider that hypothesis.
38. Mr Flint’s evidence was that he was required to take salt tablets when he was serving in the Territory and that he increased his use of salt at the table because he had been told it would do him good, and that Army cooks used salt in cooking. There is also evidence about the taking of salt tablets in the Territory from Mrs Flint, Mr Hogan and Mr O’Keefe.
39. Although he stopped taking salt tablets when he left Darwin, the material points to his salt use at the table and his salt intake from Army cooking continuing at the same level from the time he left Darwin until he was discharged. That is, he added 15 teaspoons or 75 grams of salt a week or 10.7 grams a day at the table. There was also salt added to the cooking which based on Mr O’Keefe’s evidence may have been 2 or 3 grams. After discharge he said that he continued an excessive intake of salt at the table and in cooking.
40. There is evidence that Mr Flint’s diastolic reading was 90 on 19 July 1946 and in 1960. Dr Twohig’s remark prior to Mr Flint’s wedding in September 1946 is evidence that his blood pressure was slightly elevated at that time. Dr Butler’s evidence was that if Mr Flint’s evidence about Dr Twohig’s remarks were accepted then the clinical onset of hypertension would be 1946. Professor O’Rourke conceded on the basis of the two 1946 observations and the 1960 reading that that it was possible, although unlikely that Mr Flint’s usual diastolic reading from 1946 until 1960 was 90.
41.We consider that the material before us raises the proposed hypothesis.
2. Is there a relevant SoP?
42. There is an SoP for Hypertension. It is Instrument No. 35 of 2003 as amended by No. 3 of 2004. The relevant provisions are:
“2 (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.”
43. The relevant factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with service is:
“5 (c) ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension;”
44.“Salt supplements” is defined in clause 8 as:
“salt added to food when cooking or eating, or salt contained in salt tablets;”
45. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
46. That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
47. In Lees the Court discussed the SoP for Generalised Anxiety Disorder and held that that SoP did not suggest that the disease exists if only some but not all of the symptoms are manifest. We note also the decision of Repatriation Commission v Gosewinckel (1999) 59 ALD 690 where it was held that the Tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirement of a SoP.
3. Is the SoP satisfied?
48. Is the hypothesis consistent with the SoP? There is material, just referred to above, that points to Mr Flint’s blood pressure diastolic reading being greater than or equal to 90mmHG in July 1946. There is then the observation made by Dr Twohig some time after discharge in August 1946 and Mr Flint’s marriage in September.
49. Mr Colbourne relied principally on the July 1946 blood pressure reading as the date of clinical onset, but also argued more generally that clinical onset occurred in 1946. He said that the July 1946 reading points to the possibility that that was the usual reading from that date, in the context of the later observation by Dr Twohig about elevated blood pressure and the 1960 reading
50. Ms Harry, appearing for the Commission, said that two readings were necessary and that Mr Flint’s evidence about what Dr Twohig told him was not sufficient. The second reading we should consider was the 1960 reading. In her submission, the hypothesis was not consistent with the SoP.
51. In our opinion, the question is one of interpretation of the SoP. Relevantly, the SoP defines hypertension as “permanently elevated blood pressure”, as evidenced by “a usual blood pressure reading” where the diastolic reading is greater than or equal to 90 mmHg. Some definitions of “usual” are:
The Australian Oxford Dictionary: 1. such as commonly occurs, or is observed or done; customary, habitual
Macquarie Concise Dictionary: 4. that which is usual or habitual
52. Given the meaning of clinical onset as set out earlier, it is our view that there must be material that points to the specified blood pressure reading being “usual”. In our opinion, the July 1946 reading alone is not sufficient. Mr Colbourne’s submission implicitly recognised that as he put that reading in the context of the later material supporting it, that is Dr Twohig’s observation and the 1960 reading. That may be appropriate at the hypothesis step but we do not consider it satisfies the SoP. However, we consider that the observation by Dr Twohig is sufficient to point to clinical onset of hypertension at that time, given that there is no later reading that is inconsistent with that conclusion.
53. There is material pointing to Mr Flint’s intake of salt supplements up to 17 or 18 grams per day while he was serving in the Territory during the wet season which was from November to April according to Mr O’Keefe. That is based on Mr Flint’s evidence of taking three 2 gram salt tablets a day (six grams) plus using one teaspoonful or 5 grams of salt on 15 meals a week (10.7 grams a day), plus 2 or 3 grams in cooking. The material points to this intake in the period January to 23 March 1946 when he left Darwin. The material points to his salt intake continuing at a level of 12 to 14 grams following his departure from Darwin, when he stopped taking salt tablets, until his discharge. He said that his excessive salt intake at the table and in cooking continued after he left the Army, and gave details of his salt intake during his marriage being 15 grams a day at the table plus what his wife put in when cooking, until he was advised to reduce it.
54. We consider that the hypothesis is consistent with the SoP requirement of 12 grams of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension, that is for the six month period from February/March 1946 until late August or September 1946 (there was no evidence of the date in September 1946 when Mr Flint married nor precise evidence of when he saw Dr Twohig except that it was after discharge and before his marriage).
55. We understood Mr Colbourne to suggest that somehow Mr Flint’s salt intake for the three or four years prior to the July 1946 blood pressure reading could be used to contribute to the daily average salt supplement intake required for a continuous period of at least six months immediately before the clinical onset, pursuant to cl. 5(c) of the SoP. We do not accept that submission.
4. Are we satisfied beyond reasonable doubt that Mr Flint’s hypertension is not war-caused?
56. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
57. On the evidence, we are not satisfied beyond reasonable doubt that Mr Flint’s usual diastolic blood pressure reading from late August/September 1946 was not 90.Professor O’Rourke conceded that may have been the case. We are also not satisfied beyond reasonable doubt that Mr Flint was not ingesting 12 grams of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension in late August/September 1946.
Decision
58. The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that Mr Flint’s hypertension is to be accepted as war-caused and his disability pension reassessed accordingly.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr Ion Alexander.Signed: Ms Preethi Nimmagadda
AssociateDate of Hearing 14 August 2006
Date of Decision 19 October 2006
Solicitor for Applicant Dibbs Barker Gosling
Counsel for Applicant Craig Colbourne
Advocate for the Respondent Veterans Affairs
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