Hardcastle and Repatriation Commission - [2000] AATA 723

DECISION AND REASONS FOR DECISION [2000] AATA 723

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1114

VETERANS' APPEALS DIVISION       )
           Re      Kenneth HARDCASTLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date18 August 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgnd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS - hypertension - whether war-caused - whether applicant's service related ingestion of salt supplements satisfies the requirements of factor (c) of the SoP - decision affirmed
PRACTICE AND PROCEDURE - suggestion that comments of eminent cardiologist concerning onerous requirements of SoP be referred to the Repatriation Medical Authority
Veterans' Entitlements Act 1986 ss 7, 9, 120(4), 120B
Statement of Principles Instrument No. 65 of 1998

Repatriation Commission v Keeley [2000] FCA 532

REASONS FOR DECISION

18 August 2000 Mrs Joan Dwyer, Senior Member

This is an application for review of a decision of the Repatriation Commission which was affirmed by a decision of the Veterans' Review Board ("the VRB") on 13 August 1999. The Repatriation Commission decision of 10 September 1998 found that hypertension and trigeminal neuralgia were not war-caused diseases within the meaning of that term in s 9 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing Mr M Croyle of Counsel appeared for Mr Hardcastle. Mr K Rudge, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Croyle called Mr Hardcastle and Dr Pitt a cardiologist and until recently the Director of Cardiology at the Alfred Hospital. Mr Rudge called Ms Wailes, a dietician. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
The respondent in its Statement of Facts and Contentions conceded that if the Tribunal found that Mr Hardcastle's hypertension was a war-caused disease then the trigeminal neuralgia would also be a war-caused disease.
Mr Hardcastle served in the Australian Army during World War II from 5 November 1941 to 23 October 1945. He served in the Northern Territory and Queensland. The whole of his service constitutes eligible war service as defined in s 7 of the Act. Thus the standard of proof is that in s 120(4) of the Act which means that the Tribunal must decide the matter to its reasonable satisfaction.
The question whether or not hypertension is a war-caused disease must be determined in accordance with s 120B(3) of the Act which requires that the Tribunal is to be reasonably satisfied that hypertension is war-caused only if the connection raised between the disease and Mr Hardcastle's service is upheld by the relevant Statement of Principles ("SoP"). In this matter applying the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532, the parties agreed that the relevant SoP is Instrument No. 65 of 1998 ("the hypertension SoP").
The hypertension SoP defines hypertension in clause 2 (b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hardcastle and Repatriation Commission

Details

AGLC: Hardcastle and Repatriation Commission [2000] AATA 723
Case: [2000] AATA 723
Decision Date: 18 August 2000

CaseChat Overview and Summary

The applicant, Kenneth Hardcastle, sought a review of a decision made by the Repatriation Commission, which had been affirmed by the Veterans' Review Board, finding that his hypertension and trigeminal neuralgia were not war-caused diseases within the meaning of the Veterans' Entitlements Act 1986. The Tribunal was required to determine whether Hardcastle's hypertension was a war-caused disease, in accordance with the relevant Statement of Principles (SoP). Specifically, the issue was whether Hardcastle's service-related ingestion of salt supplements satisfied the requirements of factor (c) of the SoP, which states that hypertension is connected with the circumstances of a person's relevant service if the person ingested at least 15 grams (250 mmol) of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension.

The Tribunal found that the accurate determination of Hardcastle's hypertension occurred in October 1953, based on Red Cross blood pressure readings. However, the Tribunal could not be reasonably satisfied that Hardcastle ingested at least 15 grams of salt supplements per day on average for a continuous period of at least six months immediately before the accurate determination of hypertension in October 1953. Although Hardcastle testified that he consumed 12 to 15 salt tablets a day during service and continued to add salt to his meals post-service, a dietician's report indicated that his average daily ingestion of salt supplements was approximately 4.7 grams during the 1960s, which was likely similar in the 1950s. The Tribunal noted that Dr Pitt, a cardiologist, expressed reservations about the application of the SoP, suggesting that its requirements may be particularly onerous and that lower levels of salt intake may contribute to hypertension. The Tribunal suggested that these comments should be brought to the attention of the Repatriation Medical Authority.

The decision under review was affirmed, and the Tribunal could not be reasonably satisfied that Hardcastle's hypertension was a war-caused disease. The Tribunal's decision was based on the strict quantitative requirements of the SoP, and the lack of evidence to support that Hardcastle ingested at least 15 grams of salt supplements per day on average for a continuous period of at least six months immediately before the accurate determination of hypertension in October 1953.

Orders