Higgins and Repatriation Commission
[2013] AATA 630
•3 September 2013
[2013] AATA 630
Division VETERANS' APPEALS DIVISION File Number
2012/3918
Re
Betty Higgins
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 3 September 2013 Place Brisbane I set aside the decision under review and substitute the decision that the death of the veteran was war-caused and the applicant is therefore entitled to receive a pension with effect from 29 June 2010.
[Sgd]
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Operational service – Cerebrovascular accident – Statement of Principles apply – Hypertension – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war-caused – Decision under review set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 13, 14, 119, 120, 120A, 196A, 196B
Statement of Principles concerning hypertension No. 35 of 2003[1]
[1] As amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008.
Statement of Principles concerning cerebrovascular accident No. 51 of 2006[2]
[2] As amended by Instrument No. 123 of 2011 in a manner not material to this matter.
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Budworth (2001) 16 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711Repatriation Commission v McKenna (1998) 52 ALD 72
SECONDARY MATERIALS
Hughes W E, At War with the 51st Infantry Battalion and 31/51st Infantry Battalion from 1940-1946 (Church Archivist Press, 1993)
Walker Allan S, Clinical Problems of War (Halstead Press, 1952)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
3 September 2013
INTRODUCTION
Betty Higgins (“the applicant”) was a dependent of the late Henry Higgins (“the veteran”) who in World War II served with the Royal Australian Air Force in New Guinea. The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.
BACKGROUND
On 29 September 2010, the applicant made her claim for a war widow’s pension.
On 16 March 2011, a delegate of the Repatriation Commission rejected the claim on the ground that the death of the veteran was not war-caused.The applicant sought a review of this decision from the Veterans’ Review Board which, on 27 August 2012, affirmed the decision.
The applicant now seeks review of that decision by this Tribunal.
SERVICE
During World War II the veteran served in the Royal Australian Air Force. It is not in dispute that he rendered “eligible war service” in the form of operational service from
13 January 1944 until 15 May 1946.[3]
[3] As defined by ss 7 and 6A of the Veterans’ Entitlement Act 1986 (Cth).
LEGISLATIVE FRAMEWORK
Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. The provision applies where, relevantly under sub 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Subsection 13(1)(c) of the Act provides, relevantly, that where a veteran’s death is war‑caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Subsection 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 of the Act defines dependant to include a “widow”, in turn s 5E defines a “widow” to be a woman who was a partner of the person immediately before his death. It is not in dispute that the applicant was a dependant of the veteran.
As this claim relates to the veteran’s operational service, the determination of whether his death was war-caused is to be made by applying subs 120(1) and 120(3) of the Act.
Subsection 120(1) of the Act provides that where a claim 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.
Subsection 120(3) of the Act also provides that:
In applying subsection [120](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.
STATEMENT OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”). The RMA is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence which set out factors relating to service which must exist in order to establish a causal connection between particular diseases, injuries or death and service.
Section 196B of the Act provides that if the RMA:
...
(2) ... is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
...
[they] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
A Statement of Principles is binding on decision-makers at all levels, including this Tribunal.
The reference in sub 196B(2) of the Act to a particular kind of injury, disease or death being “related to service” is expounded in sub 196B(14). This provides relevantly, in effect, that a factor causing 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;
...
In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This follows from the application of sub 120A(3) of the Act, which provides that:
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.
DEATH OF THE VETERAN
I am required to determine the “kind of death” that is applicable to the veteran.
The expression “kind of death” refers to the medical cause or causes of death: see Repatriation Commission v Hancock.[4]
[4] [2003] FCA 711 at [8]–[9] per Selway J.
The death certificate records that the veteran died in 2010,[5] the causes of death being:
(a)Stroke; and
(b)Hypertension.
[5] Exhibit A, T-Document 4, p. 10.
The respondent accepts that the cause of death is cerebrovascular accident.
CONSIDERATION
For the applicant to succeed it is necessary that the veteran’s hypertension was related to his war service. The veteran suffered a cerebrovascular accident in the week’s prior to death. There are Statements of Principle for each condition.
Statement of Principles concerning cerebrovascular accident No. 51 of 2006[6] contains factor 6(a): "having hypertension at the time of the clinical onset of cerebrovascular accident” as a factor which may raise a reasonable hypothesis connecting death from cerebrovascular accident and a person’s relevant service.
[6] As amended by Instrument No. 123 of 2011 in a manner not material to this matter.
Statement of Principles concerning hypertension No. 35 of 2003[7] provides in factor 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" as a factor which may raise a reasonable hypothesis connecting hypertension or death from hypertension with a person’s relevant service. Clause 8 of this Statement of Principles defines “salt supplements" to mean salt added to food when cooking or eating, or salt contained in salt tablets.
[7] As amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008.
The Federal Court of Australia has laid down the principle that where an applicant seeks to connect an ultimate condition (which is cerebrovascular accident) through an intermediate condition (which is hypertension) then a factor in the Statement of Principles which pertains to the intermediate condition must itself be met.[8] There is no issue with the report dated 7 March 2011 of Dr Mark Odling who reported that in 1971 the veteran had the clinical onset of hypertension.[9] The respondent quite properly accepts that the veteran was suffering from hypertension at the time of his cerebrovascular accident. What is in issue is whether there is a reasonable hypothesis connecting excessive salt consumption with the hypertension of the veteran and his subsequent death.
[8] Repatriation Commission v McKenna (1998) 52 ALD 72.
[9] Exhibit A, T-Document 4, p. 17.
In Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) the Full Court of the Federal Court of Australia adopted a four-step process in determining the application of the relevant sections of the Act.[10] In Deledio, at 82-83, the four-step approach was given as:
(i) 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.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a Statement of Principles (SoP) determined by the Authority under s196B(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.
(iii) 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 s196B(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.
(iv) The Tribunal must then proceed to consider under s120(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.
Step 1 of Deledio
[10] Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]; Repatriation Commission v Bawden [2012] FCAFC 176 at [40].
I must consider all the material before me and determine whether that material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. There is no issue that on the material before me there is a hypothesis that links the salt usage of the veteran with his service and subsequent death.
Step 2 of Deledio
I have ascertained that there is in force a Statement of Principles issued by the RMA under subs 196B(2) or (11) of the Act. As I have found that the veteran suffered from hypertension I will consider the claim of the applicant in accordance with the relevant Statement of Principles, which is Statement of Principles concerning hypertension No. 35 of 2003[11].
Step 3 of Deledio
[11] As amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008.
I am now required to consider the third step in Deledio in assessing whether a raised hypothesis is “reasonable”. I am bound by the decision of the High Court of Australia in Byrnes v Repatriation Commission,[12] which held, at 569,[13] that a reasonable hypothesis is raised when “... the material points to some fact or facts ('the raised facts') which support the hypothesis”.
[12] (1993) 177 CLR 564.
[13] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
The applicant gave evidence before the Tribunal as well as providing a statement which was admitted into evidence.[14] The applicant stated that in 1947 she first met the veteran at a dance in Isisford, rather than Barcaldine, as mentioned in her statement. She stated that the veteran was learning French polishing in Brisbane between 1948 and 1950, and that she saw the veteran at holiday time. She stated that she married the veteran in 1951. She remarked that she was unaware of the level of the veteran’s salt intake prior to her marriage. She stated that her father was a shearing contractor and that the veteran worked as a shearer from 1951 until 1968. During this time she mainly saw the veteran on the weekend as the veteran would work on properties during the week. The applicant stated that the veteran told her that while shearing he took salt tablets because it was very hot in the shearing sheds and he got cramps in his legs.
[14] Exhibit B.
In 1968 the applicant stated that she and the veteran moved to Brisbane. The veteran obtained employment with City Rubber as a tyre retreader for four or five years. She remarked that his intake of salt was always very high during that period and, indeed, afterwards. In paragraph 7 of her statement she remarked that the veteran liked salt and that: “He would shake so much salt on his meal that it would be all over his dinner plate and around the edges of his plate on the table”. She also stated that the veteran took a salt and pepper shaker with him to work and that he would add salt to the lunch that she had prepared for him.
Katrina Treherne, the daughter of the applicant and the deceased veteran, gave evidence as well as providing a statement which was admitted into evidence.[15] She related that she was aware from discussions with her family how the shearers would add liberal amounts of salt to their meals. She remarked that the veteran’s work as a tyre retreader was hot and dirty work, and that during this period his salt intake was excessive. She remarked that he had a habit of eating meat at every meal if that was possible. This included eating either porridge or a meat dish for breakfast which would be heavily salted.
[15] Exhibit C.
Katrina Treherne remarked that her father would “add liberal amounts of salt to his meals, so much that there would be salt all over his plate and around the table in the vicinity of his plate”.[16] She further remarked:
I would estimate that my father would put at least a half a teaspoon of salt on his evening meal without fail. I am confident that this estimate is correct because I have conducted a few experiments to verify it. Taking into account the salt that my mother would ordinarily add to my father’s meals in the cooking process and the additional salt that he added to each and every one of those meals, I estimate that my father on average was consuming at least 2-2 1/2 teaspoons of salt each day.[17]
[16] Exhibit C, p. 2.
[17] Ibid.
Vera Feeney, who was the older sister of the veteran, gave evidence before the Tribunal as well as providing a statement which was admitted into evidence.[18] She stated that her family lived in the country at Bouldercombe and then moved to Allenstown near Rockhampton. She stated that meals were provided by her father who did the cooking.
At the meal table there were salt and pepper shakers but she did not recall anybody adding salt to their meals.
[18] Exhibit D.
Vera Feeney stated that she had read the statement of the applicant. She said that while the veteran was living at home, he did not eat the large amounts of salt which were described in paragraph 7 of the statement of the applicant. She stated that in 1939, when she was 15 years of age, she left home to undertake teacher training at a teachers’ college in Brisbane.
Dr Albert Palazzo, a consultant historian, has provided reports which have been admitted into evidence. In his first report, dated 28 October 2012, Dr Palazzo gave details of the service of the veteran in New Guinea for exactly one year.[19] In his second report, dated
12 May 2013, Dr Palazzo reported that:
it is clear that salt was an essential ration supplement for troops serving in tropical areas and that it was readily supplied to Australian military troops serving in the tropics in order to ward off heat related ailments. Salt was offered to military personnel in their rations, as salted water and in supplement tablets. There is also little doubt that the issue of salt to troops serving in hot climates was done so as a part of an official Australian military policy.[20]
[19] Exhibit E.
[20] Exhibit F, p. 4.
At the hearing of the application Dr Palazzo was available to give evidence but was, quite properly, not required for cross-examination. Annexed to the second report of
Dr Palazzo is an extract from an official war publication which details that: “Members of forward surgical teams in New Guinea, working under conditions of intense heat and humidity, found that they needed salt as much as combatant soldiers”.[21]
[21] Walker Allan S, Clinical Problems of War (Halstead Press, 1952), p. 368.
I have considered all of the material before me and concluded that there is material which indicates that the veteran was ingesting salt supplements in the amounts prescribed by factor 5(c) of the Statement of Principles concerning hypertension No. 35 of 2003[22] for six months prior to the clinical onset of hypertension. I rely upon the unchallenged evidence of Katrina Treherne to find that the applicant was ingesting salt at such a level.
The question that I have to consider is whether the use of salt can be said to be relevant to the service of the veteran as required by clause 4 of the Statement of Principles concerning hypertension No. 35 of 2003[23]. The veteran served in New Guinea where he was likely issued salt tablets as part of his kit and asked to take them. There is evidence that the veteran took salt tablets while he was shearing. I am mindful that I am not required at this stage of the decision making process to make findings of facts.[22] As amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008.
[23] As amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008.
The respondent has submitted that this is a case where I cannot find that there is a reasonable hypothesis, because there is no evidence regarding the salt consumption of the veteran during his operational service. It is submitted that there is no evidence before me concerning the salt consumption of the veteran after his sister left home to go to teachers’ college and until the veteran enlisted with the Royal Australian Air Force. It has also been submitted that there is also no evidence concerning salt consumption of the veteran after his discharge from the Royal Australian Air Force and until he took up shearing. However, I consider that these matters do not preclude me from ruling that there is a reasonable hypothesis as put forward by the applicant.
In considering whether there is a reasonable hypothesis I have been guided by observations made by Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412, where His Honour remarked, at [38]:
The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts...which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true… a hypothesis may still be reasonable although it is unproved and is opposed to the weight of the evidence.
I am required by s 119 of the Act to act in accordance with substantial justice and the merits of the case, as well that provision also requires that I take account of the difficulties that may stand in the way of ascertaining any fact, cause or circumstance.
The material points to the veteran having taken salt supplements for a full year in New Guinea. There are no records of what the salt consumption of the veteran might have been. However, the veteran would likely have taken salt supplements for a full year and this supports the hypothesis that he then became used to a high salt intake. As salt tablets would have been part of his kit he would have assumed that there were benefits to his taking of salt. The second report of Dr Palazzo contains an extract from a book which refers to how troops in New Guinea “found that by sucking a tablet they rarely had any abdominal discomfort and cramps”.[24][24] Hughes W E, At War with the 51st Infantry Battalion and 31/51st Infantry Battalion from 1940-1946 (Church Archivist Press, 1993), p. 75.
I have borne in mind that the applicant mentioned that the veteran took salt tablets to relieve cramps while working in the hot shearing sheds. It seems to me to be reasonable that the veteran, having developed a habit of using salt during his service, would continue the use of salt after his discharge. In my opinion the material before me meets factor 5(c) of the Statement of Principles concerning hypertension No. 35 of 2003[25]. As the respondent has quite properly conceded, the veteran was suffering from hypertension at the time of his cerebrovascular accident. A reasonable hypothesis of a causal connection with the death of the veteran being caused by the cerebrovascular accident is raised by the material.
Step 4 of Deledio
[25] As amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008.
I am now required to consider, under sub 120(1) of the Act, whether or not, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. The claim of the applicant will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond a reasonable doubt. The applicant will not succeed if the truth of a fact inconsistent with the hypothesis is proved beyond a reasonable doubt.
I have referred to the evidence which I consider establishes that there is a reasonable hypothesis. There are certainly gaps in the evidence. We do not know what the salt consumption of the veteran was before and after he served his country. In this claim by the widow we can have no evidence from the veteran. His salt consumption during his war service is a matter of conjecture. I acknowledge that the veteran had no accepted conditions concerning his war service but this is not itself a bar to relief.
I cannot be satisfied that the veteran was not ingesting 12 grams of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension in 1971. The evidence of the applicant, Vera Feeney and Katrina Treherne was not challenged. There is evidence from the report of a dietician, which is independent of these witnesses, which indicates that the applicant continued a high salt consumption even after the clinical onset of hypertension.[26] Having regard to the evidence, I cannot be satisfied beyond reasonable doubt that the veteran’s death was not war-caused within the meaning of s 8 of the Act.
[26] Exhibit H.
DECISION
I set aside the decision under review and substitute the decision that the death of the veteran was war-caused and the applicant is therefore entitled to receive a pension with effect from 29 June 2010. The applicant did not make a claim within 6 months of the veteran’s death in accordance with sub 20(2A) of the Act. Having regard to sub 20(1) of the Act, the earliest date that my decision can take effect from is 3 months prior to
29 September 2010, the date that her claim was received by the Department of Veterans' Affairs.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ......................[Sgd]..................................................
Associate
Dated 3 September 2013
Date of hearing 22 August 2013 Counsel for the Applicant Mr Anthony Harding Solicitor for the Applicant Mr Terence O'Connor Advocate for the Respondent Mr Jeff Kelly
4
8
0