Hatchman and Repatriation Commission
[2003] AATA 646
•8 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 646
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/911
VETERANS' APPEALS DIVISION )
Re IRIS HATCHMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date8 July 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that Iris Hatchman qualifies for the war widow’s pension pursuant to the provisions of the Veterans’ Entitlements Act 1986 with effect from 6 November 1999.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether the veteran’s death was caused by his war service – ischaemic heart disease – hypertension whether reasonable hypothesis established connecting the veteran’s death with his war service – ingestion of salt supplements
Veterans’ Entitlements Act 1986 ss 13, 14, 120(4), 120B(3), 196B(3), 196B(14)
Repatriation Commission v Smith (1987) 15 FCR 327
Re Oakman and Repatriation Commission [1999] AATA 125
Treloar v Australian Telecommunications Commission (1989) 97 ALR 321Re Buckley and Repatriation Commission [2002] AATA 1286
Re Downing and Repatriation Commission [2000] AATA 904Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
8 July 2003 Mr IR Way, Member 1. This is an application by Irish Hatchman (“the applicant”) for review of a decision of the Repatriation Commission made on 9 February 2000 and affirmed by the Veterans’ Review Board (“VRB”) on 26 June 2002, that the death of the applicant’s husband, Leslie Hatchman (“the veteran”), was not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:
§Exhibit A1 Statement of Iris Hatchman dated 28 January 2003
§Exhibit A2 Statement of Aubrey Hatchman dated 3 December 2002
§Exhibit A3 Statement of Aubrey Hatchman dated 27 March 2003
§Exhibit A4 Letter from applicant to Solicitors dated 8 December 2002
§Exhibit A5 Letter from applicant to Solicitors dated 20 March 2003
§Exhibit R1 Dietitian’s report by Trudy Williams dated 11 May 2003
§Exhibit R2 Report of Professor Kenardy dated 7 September 2000.
3. The applicant and the veteran’s brother, Aubrey Hatchman, gave oral evidence. Professor J Kenardy gave evidence by telephone. The applicant was represented by Mr D O’Gorman of counsel and the respondent by Mr M Smith.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran is war-caused. A dependant of a deceased veteran, including a widow, may make a claim to a pension under section 14 of the Act.
5. The veteran rendered eligible war service in the RAAF during World War II from 11 July 1943 to 21 February 1946, including 12 month’s service in the Northern Territory from 31 May 1944 to 22 May 1945.
6. The veteran’s service was not operational service and accordingly section 120(4) of the Act requires the Tribunal, in making a determination or decision on the applicant’s claim, to determine the matter to its reasonable satisfaction.
7. Section 120B(3) relevantly provides:
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3)…; or …
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
8. The standard of proof required for cases in which the veteran has eligible, as opposed to operational, service is prescribed by section 120(4) [as affected by section 120B] of the Act.
9. The Tribunal must be in each case determine to its reasonable satisfaction the question whether the veteran’s death was war-caused, applying the civil standard of proof of the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
10. Where there is a Statement of Principles (“SoP”) made under section 196B(3) the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran’s death and his service. Secondly, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran’s death is, on the balance of probabilities, connected with the veteran’s service: section 120B(3)(b). This last question must also be determined to the reasonable satisfaction of the Tribunal.
11. The veteran died on 19 December 1979, the cause of death being certified as:
(a) Pulmonary odema (4 hours); and
(b) Myocardial infarction (4 hours).
It is common ground between the parties that the veteran suffered from hypertension from 1963 and the Tribunal so finds.
12. There is no dispute between the parties and the Tribunal accepts that the relevant SoPs in this matter are:
§Ischaemic Heart Disease – Instrument No 39 of 1999; and
§Hypertension – Instrument No 32 of 2001.
Contentions
13. The applicant contends that the veteran ingested at least 15 grams of salt supplement per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension, and that the veteran’s consumption of salt at this level is causally related to his eligible service, and that, therefore, his hypertension was war-caused. That being so, his death from ischaemic heart disease can be connected to his hypertension and therefore his death was war-caused.
14. Instrument No 32 of 2001 (Hypertension) relevant provides:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service are: …
(c) ingesting at least 15 grams (250 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension; or …
Other Definitions
8. For the purposes of this Statement of Principles: …
‘salt supplement’ means salt added to food when cooking or eating, or salt contained in salt tablets;”
15. There is no dispute between the parties that the veteran meets factor 5(c) in that he ingested at least 15 grams of salt in the 6 months immediately prior to 1963 and in view of this, and on the material before it, the Tribunal finds that factor 5(c) of Instrument No 32 of 2001 exists.
16. Instrument No 39 of 1999 (Ischaemic Heart Disease) relevantly provides:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person’s relevant service are:
(a) the presence of hypertension before the clinical onset of ischaemic heart disease; or …”
17. The veteran, having satisfied factor 5(c) of Instrument No 32 of 2001, must then be able to show that that factor is connected with his eligible service for the contention raised by the applicant to fit the template of the SoP.
18. The relation to service required by the SoP must be one of the relationships prescribed in section 196B(14) of the Act.
“(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
Applicant’s evidence
19. The applicant provided three written statements (Exhibits A1, A4 and A5) and completed a salt questionnaire in respect of her late husband’s use of salt.
20. In Exhibit A1, the applicant set out details of the veteran’s dietary daily intake including salt intake. The Tribunal notes that Trudy Williams, Dietitian, has examined the applicant’s statement and provided an estimate of the sodium content of the foodstuffs listed in the submission (Exhibit R1). The Dietitian has calculated that the veteran’s estimated salt intake from cooked foodstuffs averages 11 grams per day. The applicant also estimated that the veteran used approximately 8 grams of salt sprinkled on his food daily (equivalent of a heaped teaspoon).
21. In answering the salt questionnaire, the applicant stated (T4/29) that the veteran used salt tablets on service in the Northern Territory. However, she did not know how many he used or if he continued to use salt tablets after the war.
22. She said she first met her husband in June 1946, at which time he was living in a boarding house in Brisbane, that they were engaged in July 1947 and married on 29 May 1948. She said that after they were engaged, her husband-to-be moved in with her and her mother in September 1947 and her mother did the cooking. She said her mother used salt in cooking and salt was always on the table and that the veteran always sprinkled salt over the whole of each meal that he ate.
23. It was the applicant’s evidence that after the war the veteran completed a carpentry course under the Post-war Reconstruction Scheme (while living in a boarding house) in Brisbane and subsequently went on to build houses with his brother, Aubrey. She described his work as physically very hard and that with heavy sweating he continued with a heavy salt consumption.
24. The applicant said that Aubrey came to live with her and her husband in November 1949 and continued to live with them until he was married on 30 December 1950.
25. Prior to moving to Brisbane in late May 1946 (and subsequently commencing his carpentry course in June/July 1946), the applicant said that her late husband was peanut picking in Kingaroy from February 1946 to May 1946.
26. Mr Aubrey Hatchman, the veteran’s brother, provided two written statements (Exhibits A2 and A3) and gave oral evidence.
27. Mr Hatchman stated that prior to joining the RAAF, the veteran’s only intake of salt was that put into food when being cooked at their home. He stated that no salt was ever sprinkled on food at the table. Mr Hatchman was unable to recall how much salt was used in cooking or whether the veteran used salt immediately after returning from the war. However, he stayed with the veteran and his wife for 14 months in 1949/1950 and could clearly recall the veteran sprinkling salt on all of his meals. He said he never used salt himself and that perhaps this is the reason he can remember his brother sprinkling salt on his food.
Evidence of Professor Kenardy
28. Associate Professor Kenardy, a Clinical Psychologist, provided a written report dated 7 September 2000 about the psychological and physiological affects that determine salt consumption (Exhibit R2). In his report, Dr Kenardy stated:
“Hedonic preference
A hedonic, or psychological preference for salt is due to exposure and learning, rather than due to the body being in a state of sodium depletion. Sensory or hedonic preferences for particular intensities of salt develop over a period of time. Ordinarily these preferences take about 2-4 months of consuming a particular quantity of salt on a daily basis to produce an enduring preference (Capaldi, 1996). These changes in salt preferences can be formed for both increases and decreases in daily salt intake and concentrations.
Experiments by Beauchamp and colleagues (Beauchamp, 1987; Bertino, Beauchamp & Engelman, 1986) show that increases in salt intake following repeated exposure to higher salt diets indicate an underlying process that it purely sensory or hedonic (for the pleasure of the flavour) rather than because of a physiological need, or dependence on salt. Giving subjects a 10g/day increase of salt in the form of table salt on food, over six weeks, increased their preference for higher concentrations of salt on foods. However, subjects given an increase of 10g of salt per day in the form of a salt tablet (which does not carry the same taste qualities) did not increase their desire for higher salt intensities in soup or crackers.
This indicates that preferences for salt following high-salt diets are due to altered sensory experience with salt, and hedonic factors, not due to a physiological response to large amounts of sodium consumed (Bertino, et al., 1986).”
29. In respect to addiction, Dr Kenardy concluded:
“In conclusion: The overconsumption of salt following a pattern of high-salt diet cannot be construed as having an underlying mechanism of addiction. The physiological appetite for salt cannot be regarded as an addictive process either, as substance dependence is a result of the use of a substance, not the depletion of a substance in the body.”
30. In respect of the effects of increased/decreased consumption on preference levels, Dr Kenardy said:
“…when salt is tasted there is likely to be a change in salt preference of approximately 50% of the actual salt consumed. It is unlikely, however, that this proportion applies to all levels of salt consumption.
Very high levels of salt consumption are likely to be aversive. Therefore, with high salt intake, preference is not likely to change in the [same] proportions…”
31. Dr Kenardy concluded as follows:
“There is a physiologically driven need for salt, and in some cases a need for excess salt, however this is not due to over-consuming salt. On the contrary, it is a result of current or prior sodium-depletions. The increase in salt intake after a period of consuming higher amounts of salt is not physiologically driven but is rather a hedonic preference for that amount and concentration of salt.
The evidence reviewed in this report would indicate that preference for excess salt can be altered by long term exposure to the taste of higher levels of salt. However, if the salt is not experienced via sense (e.g. ingested salt tablets), preference is not altered. Even so, preference is not dependence, and just as a person can develop a preference for higher levels of salt, so too can they develop preference for lower levels of salt through experience (Beauchamp, 1987).”
32. In his oral evidence, Dr Kenardy agreed that a preference for salt can be changed by exposure to salt tastes. When taken to his statement about any hedonic preference arising from salt tablets, Dr Kenardy said the salt tablets he was referring to were coated so that a salt taste was not readily apparent. On further questioning he agreed this finding would not apply if the salt tablets taken by the veteran were not coated and that they clearly tasted of salt. Dr Kenardy reinforced his view that an increase in salt consumption would not change preference for salt on a one-to-one basis, rather that any change would be approximately one-third of whatever the increase was.
Submissions
33. Mr O’Gorman, for the applicant, submitted that while the quantity of the veteran’s salt consumption prior to service was in question and while the salt consumed in food during service was not known, the evidence before the Tribunal clearly showed that the veteran had consumed salt tablets while serving in the Northern Territory and that on return from service his salt consumption had significantly increased compared with his pre-service consumption. He submitted that it was well known that salt tablets were issued in the tropics during the war and that the issued tablets could affect a person’s preference for salt and that this was consistent with Dr Kenardy’s report where he said that preferences for salt following high salt diets are due to altered sensory experience with salt and that hedonic factors rather than physiological response factors were operative.
34. That being so, it was submitted that the Tribunal would be satisfied that there was a sufficient connection between the applicant’s increased salt consumption (which clearly meets factor 5(c) of the relevant SoP) and his eligible war service, such that the Tribunal would be satisfied that the applicant’s hypertension was war-caused and therefore his ischaemic heart disease (and death from ischaemic heart disease) was also war-caused. In considering this matter Mr O’Gorman referred the Tribunal to Re Oakman and Repatriation Commission [1999] AATA 125 and Treloar v Australian Telecommunications Commission (1989) 97 ALR 321 in respect of material contribution.
35. Mr Smith, for the respondent, submitted that the Tribunal should take into account that, on the applicant’s own evidence, the veteran post-war only added 8 grams of salt per day and that the war could not be blamed for the wife’s cooking which, according to the dietitian’s assessment, accounted for approximately 10 grams of salt per day.
36. Furthermore, Mr Smith submitted that there were too many gaps in the evidence before the Tribunal to enable it to be reasonably satisfied that the hypothesis put forward by the applicant was a reasonable one. In this respect, Mr Smith submitted that there was no evidence whatsoever of the veteran’s food/ration consumption during the war, no evidence of the quantity of salt tablets taken by the veteran and even if the veteran were consuming salt tablets, the question remains as to whether the taste of tablets was such that a hedonic preference would be an outcome.
37. Furthermore, it was submitted that the Tribunal would need to be satisfied that the applicant’s war-time diet/salt consumption was enough to make the applicant eat 5 grams or more salt post-war, noting Dr Kenardy’s research findings that changes were likely to be of the order of one-half to one-third of the amount consumed. It was submitted that there was a need to be satisfied that the veteran was consuming 10 grams or more of salt on service. On the evidence before the Tribunal it was submitted that such a finding would be speculative.
38. Mr Smith also drew to the Tribunal’s attention the complete lack of information about what the veteran’s salt consumption was immediately post-war (in Kingaroy and the boarding house in Brisbane) and prior to his commencing to live at the applicant’s mother’s home.
39. In its consideration of this matter, Mr Smith referred the Tribunal to Re Buckley and Repatriation Commission [2002] AATA 1286 and Re Downing and Repatriation Commission [2000] AATA 904.
Consideration
40. As has already been indicated, there is no dispute between the parties and the Tribunal accepts that the veteran suffered from hypertension from 1963.
41. The Tribunal is also satisfied that the veteran suffered from ischaemic heart disease at the time of his death on 19 December 1979 and that the veteran’s hypertension was present before the clinical onset of ischaemic heart disease.
42. It follows from the above that if the veteran’s hypertension was war-caused, then clearly his death was also war-caused.
43. This matter is contested on the question of whether the veteran’s circumstances fit the template of the relevant hypertension SoP, in respect of ingesting salt supplements.
44. There is no dispute between the parties that the veteran 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 1963.
45. In view of this, and on the material before it, the Tribunal finds that factor 5(c) of the relevant SoP exists, namely, the veteran ingesting at least 15 grams of salt supplements per day on average for a continuous period of at least six months immediately before determination of his hypertension in 1963. In so finding, the Tribunal is mindful that the definition of “salt supplement” includes salt added to food when cooking or eating.
46. The question then before the Tribunal is whether this factor is related to the veteran’s service. This question is to be addressed within the provisions of section 196B(14) of the Act, as set out in paragraph 18 above.
47. In this regard the applicant has submitted that the factor was contributed to in a material degree by the veteran’s service and has referred the Tribunal to Treloar’s case, where the Full Federal Court, in addressing the question of contribution in materiality said:
“21. …once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree…
22. The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
48. In respect of the application of section 196(14), the respondent referred the Tribunal to Kattenberg v Repatriation Commission [2002] FCA 412. In Kattenberg’s case, his Honour Justice Emmett did no more than reinforce the need to consider any causal relationship between a factor and service within the terms of the provisions of section 196B(14).
49. The question then before the Tribunal is whether the veteran’s service contributed to his ingestion of at least 15 grams of salt supplement per day during the six months prior to the determination of his hypertension.
50. In respect of this question the Tribunal, after careful consideration of all of the material before it and the submissions of both parties, finds as follows:
(a)The Tribunal accepts the veteran’s brother’s statement that the veteran, prior to joining the RAAF in 1943 lived at home and only consumed salt added to cooking at home.
(b)The Tribunal accepts the veteran’s brother’s statement that on return from the war, when he again saw his brother on a regular basis in 1949, the veteran was sprinkling extra salt on his food (whereas his brother was not).
(c)The Tribunal accepts the applicant’s statement that the veteran used salt tablets during his service in the Northern Territory, that she first met her husband in June 1946 and that he came to live with her and her mother when they were engaged in July 1947.
(d)The Tribunal accepts the applicant’s statement that when the veteran was at her mother’s home he always sprinkled extra salt on his food.
(e)The Tribunal accepts Dr Kenardy’s opinion:
(i)that an increase in salt intake after a period of consuming higher amounts of salt is not physiologically driven but is rather a hedonic preference for that amount and concentration of salt;
(ii)that the over-consumption of salt following a pattern of high salt diet cannot be construed as having an underlying mechanism of addiction; and
(iii)that preferences for salt following high salt diets are due to altered sensory experiences with salt.
51. The respondent referred the Tribunal to Buckley’s case where the Tribunal, based on the report of Dr Kenardy dated September 2000, did not accept that the veteran’s consumption of salt tablets during the war caused an elevation in salt intake in later years.
52. The Tribunal has considerable difficulty in accepting this finding. Dr Kenardy’s opinion about salt tablets having no taste because of their coating is based on studies carried out in the late 1980s. There is no evidence to show that the salt tablets used in the studies referred to were the same as those used during World War II. Rather, to the contrary, as noted by the Tribunal during the hearing of this matter, salt tablets used immediately post-war clearly tasted of salt and were not obviously coated to mask any salt taste and on this basis Dr Kenardy agreed that exposure to the taste of salt in salt tablets could change preference for salt.
53. The respondent also referred the Tribunal to Downing’s case where again, based on Dr Kenardy’s evidence, the Tribunal was unable to accept any connection between ingesting salt tablets and subsequent ingestion of excessive amounts of crystalline salt. For the same reasons as given above, the Tribunal does not consider that the reasoning in Downing’s case assists the respondent’s case.
54. The applicant referred the Tribunal to Oakman’s case where the Tribunal found:
“In the 1940s, 50s and 60s there was a culture in tropical communities and in particular in the Army operating in the tropics of taking excess salt in food and in taking salt tablets. Indeed, salt tablets were issued as part of the soldiers’ kits and the soldiers were instructed to take the tablets.”
55. In Oakman’s case the Tribunal formed the view that the veteran’s excess salt intake post-World War II was linked with his war-service. The Tribunal is mindful that in Oakman’s case no reference was made to any report of Dr Kenardy. However, given the wide experience of the members constituting that Tribunal (Senior Member DW Muller (as he then was), Dr KP Kennedy and Major-General J Stein), the Tribunal in this matter has accepted that the finding referred to above is relevant.
56. In forming a view as to the connection between the veteran’s salt consumption and his service, the Tribunal is troubled by a lack of direct evidence about the veteran’s level of salt intake prior to service, the quantity of salt tablets taken during service, the quantity of salt that the veteran ingested due to war-time rations and a lack of evidence about his dietary intake (including salt) immediately post-war.
57. However, after taking these concerns into consideration and after consideration of all of the material before it, the submissions of both parties and the Federal Court’s comments in Treloar’s case, the Tribunal is satisfied, on balance, that the veteran’s consumption of salt tablets during the war contributed in a material degree to his subsequent ingestion of salt supplements at the level required to satisfy the relevant SoP.
58. The Tribunal is therefore satisfied that the hypothesis put forward by the applicant, that the veteran’s hypertension was war-caused, fits the template of the relevant SoP and is a reasonable hypothesis. That being so, the further hypothesis put forward by the applicant that the veteran died from ischaemic heart disease linked to his hypertension is also a reasonable hypothesis.
59. The Tribunal therefore finds that the veteran’s death is war-caused.
60. The Tribunal sets aside the decision under review and in substitution therefor determines that Iris Hatchman qualifies for the war widow’s pension pursuant to the provisions of the Veterans’ Entitlements Act 1986 with effect from 6 November 1999.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 12 June 2003
Date of Decision 8 July 2003
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Robert Bax & Associates
Solicitor for the Respondent Mr M Smith, Departmental Advocate
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