Hilton and Repatriation Commission
[2001] AATA 20
•18 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 20
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/19
VETERANS' APPEALS DIVISION )
Re Joyce HILTON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr J Campbell, Member
Date18 January 2001
PlaceSydney
Decision The Tribunal – 1. Sets aside the decision of a delegate of the Repatriation Commission dated 23 May 1997 that refused a claim by Joyce Hilton ("the Applicant") that the death of her husband, Robert Hilton, was not war caused; and 2. Substitutes therefore its decision that the death of Robert Hilton was war caused pursuant to s8 of the Veterans' Entitlements Act 1986, and that the Applicant is entitled to be paid war widow's pension with effect on and from 7 January 1997.
..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension –Statements of Principles applied – whether Veteran suffered from alcohol dependence or obesity – whether reasonable hypothesis that alcohol dependence and obesity contributed to development of hypertension and ischaemic heart disease and ultimately death – whether causal relationship between those conditions and Veteran's service – nature of Statement about the causes of "being obese"' issued by RMA – whether RMA authorised to incorporate Statement in a Statement of Principles pursuant to s49A Acts Interpretation Act – whether 'Statement about causes of being obese' carried statutory authority
Veterans' Entitlements Act 1986 –ss 120(1), 120(3), 120A
Acts Interpretation Act – s 49A
Statements of Principles – Instrument No 140 of 1996, No 83 of 1995, No 5 of 1994
Bushell v Repatriation Commission (1992) 16 AAR 1
Keeley v Repatriation Commission (1999) 56 ALD 455
McKenna v Repatriation Commission [1999] FCA 323
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
VVA v Cohen [1986] 981 FCA 1
REASONS FOR DECISION
18 January 2001 Mrs M T Lewis, Senior Member Dr J Campbell, Member
This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 23 May 1997 which refused a claim for war widow's pension lodged by Joyce Hilton ("the Applicant") in respect of the death of her late husband, Robert Hilton ("the Veteran"). The Respondent determined that the death of the Veteran was not war-caused pursuant to s8 of the Veterans' Entitlements Act 1986 ("the Act). On 13 November 1997, the Veterans' Review Board ("the VRB") affirmed that decision. All applications for review were made in time, and therefore the earliest date of effect is 7 January 1997, being a date no earlier than 3 months before the Applicant lodged her claim.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant tendered as evidence medical reports of Professor Beaumont dated 25 January 1999 and 16 February 1999 (exhibit A). The Respondent tendered as evidence clinical notes of Dr Peter Davidson (exhibit 1). The Applicant and her son gave oral evidence.
The Veteran was born on 31 May 1922. He served in the Australian Army and rendered operational service in World War II from 15 December 1941 to 18 January 1946. He contracted malaria while on service which was accepted as due to his war service. On 2 January 1985 the Veteran was involved in a motor vehicle accident. He was hospitalised and discharged on 21 May 1985. He died on 5 August 1985 at the age of 63 years. The cause of his death was certified by Dr P Davidson, his local medical officer, as (T4, p33) -
I. (a) Cardiac arrhythmia minutes
(b) Myocardial ischaemia minutes
(c) Hypertension years
II. Recent motor vehicle accident with multiple lacerations 8 months
Bowel obstruction 8 months
The Applicant's hypothesis is that the Veteran suffered from alcohol dependence (or in the alternative alcohol abuse) and obesity which contributed to the development of hypertension and ischaemic heart disease, which ultimately caused his death. It was argued that all those medical conditions were causally related to the Veteran's war service.
legislation and applicable statements of principlesAs the Veteran had operational service, the standard of proof to be applied in determining this matter is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"), which requires the Tribunal to determine that the Veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his death with the circumstances of his service.
As the Applicant lodged her claim after 1 June 1994, pursuant to s 120A of the Act, the Tribunal is required to apply the relevant Statement of Principles in determining whether the hypothesis is reasonable. At the hearing on 1 July 1999 the parties made submissions on the evidence, and the matter was then adjourned for the Respondent to make written submissions on the legal status of the Repatriation Medical Authority's Statement about the Causes of "Being Obese" ("the Obesity Statement"). Soon after those submissions were received the Federal Court decision of Heerey J in Keeley v Repatriation Commission (1999) 56 ALD 455 identified an applicant's accrued right to have his/her application determined by the Tribunal in accordance with the Statement of Principles applicable at the time the primary decision was made. The decision in the present matter was then delayed pending the appeal of the Keeley decision to the Full Federal Court. When the decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 was determined the Tribunal then sought further submissions from the parties. Both parties submitted subsequently that the following Statements of Principles were to be applied in this matter, and therefore the Tribunal concludes that the Applicant was seeking to rely on her accrued rights –
Instrument No. 140 of 1996 concerning Ischaemic Heart Disease
Instrument No. 83 of 1995 concerning Hypertension
Instrument No. 5 of 1994 concerning Psychoactive Substance Abuse
At least one of the factors in each of those Instruments must exist before it can be said that a reasonable hypothesis has been raised connecting the Veteran's death with the circumstances of his service.
The Applicant relied on the following factors in the respective Statements of Principles –
Factor 5(a) of Instrument No. 140 of 1996, being the presence of hypertension before the clinical onset of ischaemic heart disease,
or, in the alternative, factor 5(c), namely, being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease,
or, factor 5(g), an inability to undertake moderate or vigorous physical activity for at least five years immediately before the clinical onset of ischaemic heart disease.
The Tribunal notes that although there was some suggestion that the Veteran may have suffered from diabetes mellitus before his death, the Applicant was not relying on factor 5(b) of the Ischaemic Heart Disease Statement of Principles.
Factors 1(a) and (b) of Instrument No. 83 of 1995 in respect of Hypertension, viz., suffering from persistent obesity before and continuing at least until the accurate determination of hypertension, and suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension.
In the alternative the Applicant also relied on the development of obesity and alcohol abuse prior to the clinical worsening of hypertension as stated in factors 1(v) and 1(w).
Factors 1(a) and (b) of Instrument No. 5 of 1994 in respect of Psychoactive Substance Abuse or Dependence viz., experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post service, and having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence.
The Repatriation Medical Authority ("the RMA") has also issued a Statement about the Causes of "Being Obese" dated 16 August 1996 ("the Obesity Statement"), noting that obesity is neither an injury nor a disease as defined in s5D(1) of the Act.
evidence
ApplicantThe Tribunal notes that the Applicant completed an Alcohol Questionnaire (T4, p92) dated 8 May 1997. In that document she noted that the Veteran commenced drinking on a regular basis during his Army service, that he drank about 2 or 3 times per week (in the form of beer and the occasional whisky), and that he drank "only very moderate amounts". She also noted there were no periods where the Veteran's alcohol intake changed significantly, and that prior to his death the pattern of his alcohol consumption remained the same.
In her oral evidence the Applicant said the Veteran did not drink when she first met him in 1940. Prior to his enlistment in the Army the Veteran worked with the Department of Customs in Canberra. The Applicant said that the Veteran first started consuming alcohol during the Army. She said that he drank beer and the occasional whisky socially about 2 to 3 times a week whenever he came home on leave, which was for a week at a time.
Notwithstanding the Applicant's response in the Alcohol Questionnaire that the Veteran's alcohol consumption had not changed significantly, in her oral evidence she said that after discharge from the Army he drank "a lot more" than he did in his early life. When he first started to drink, she said he drank more beer and then later he drank more whisky. She considered it possible that the Veteran had a drinking problem, although she said that his drinking was never an issue between them, notwithstanding that he knew that she did not like it. She said that after they moved to Canowindra in about 1956 the Veteran increased his drinking.
After his Army service the Veteran returned to employment with the Department of Customs. Subsequently, the family bought a milk run that the Applicant said was quite successful. The milk run was sold and they then purchased a carrying business. Soon afterwards they bought a dairy farm in Queensland. They lived there for about 18 months and then moved back to Canberra and continued to work in the dairy industry between 1960 and 1970. She said that the Veteran always went for a drink after finishing work at the dairy by 5.30pm but that he came home by 7 to 8pm. When they were in Canberra, the Applicant recalled the Veteran drank with his father. She said there was no regular pattern to his drinking at that time.
From 1970 until about 1980 the Veteran and the Applicant operated a frozen food business. The Applicant said that during this period the Veteran drank at the hotel after a day's work, 5 days a week. However she said she never saw him "drunk". She was not able to provide an estimate of his alcohol consumption at the hotel, but she said he drank more alcohol on some days than others. She observed that most of the time the Veteran was not affected by alcohol.
After the Veteran finished with the frozen food business he continued part-time work, managing various businesses.
The Applicant said the Veteran's drinking was not as regular after his motor vehicle accident in January 1985.
The Applicant said that the only times she ever saw the Veteran drink alcohol was on weekends when they entertained guests or when they both went out to parties and other social functions. She said he did not drink at home, unless someone came to their house. Alcohol was rarely kept in the house, except for special occasions. At home he drank a few glasses of soft drink after coming home from the hotel. During the day he would sometimes come home from work and drink soft drink. On the weekends she observed that the Veteran's alcohol consumption was less because he was busy with his children's activities such as football, swimming and the races.
The Tribunal notes that the Applicant wrote a letter dated 23 June 1999, accompanying her application for review to this Tribunal, in which she made the following statement with respect to the cause of the Veteran's medical problems and subsequent death (T4,p 94-95) -
Firstly the reason he was not able to undertake vigorous or moderate physical activity was because from the time he was discharged from the army and into civilian life, as soon as he attempted to take part in this type of activities (tennis, football etc) he ended up in hospital with malaria attacks… He was then advised by his military doctor (Dr James) in Canberra to refrain from taking part in this type of recreation, otherwise he would continue to suffer these attacks. Being a young man in his early twenties this added to the stress he was already suffering. At this stage he did apply for a pension but was unsuccessful. As a result of him not being able to participate in vigorous exercise etc he, over a period gained weight, consequently causing obesity, which I feel related back to his war service in New Guinea, which was also confirmed by his doctor.
…After his return to work after his discharge, he was deeply stressed, suffered extremely bad headaches (continually) and could not settle to working within doors and was treated for hypertension. Under great stress he eventually resigned from this position…but throughout his life he was treated for hypertension…
Another matter I did not mention was his knee problem. He did have a knee injury while in the army. Some time after his discharge he developed a really bad knee after many tests…it was discovered he had very bad infection, which was traced back to an old injury to the knee. The knee was eventually operated on and he spent three weeks in Canberra Hospital and 10 weeks in Canowindra Hospital and the first few weeks seriously ill and was eventually left with a stiffness of the knee.The Applicant said in her oral evidence that the Veteran had problems with his knee. A specialist in Canberra discovered that he had a "germ" in his knee. He suffered a leg injury whilst in the Army. He was hospitalised in Canberra and he underwent a knee operation and "finished up with a partly stiff leg".
The Applicant said that the Veteran continued to suffer malaria attacks for a "long while", probably for "years". In her claim for a war widow's pension dated 2 April 1997, she made the following statement in respect to the relationship between the Veteran's service and his subsequent medical conditions (T4, p29) -
…Following his discharge on 18.1.46 he began having attacks of malaria. On several occasions he collapsed from attacks of malaria whilst playing football and was hospitalised in Canberra. He was subsequently unable to continue playing energetic sports. Hypertension was diagnosed in the late 1940's and my husband was continually receiving treatment for this disorder up until the time of his death.
The Applicant said the Veteran never talked about the Army. After his discharge he became "stressed about things. Everything sort of got him uptight". Nonetheless, she described the Veteran as a "family oriented person".
The Applicant said the Veteran lost his temper about once a week and he suffered nightmares probably once or twice a week. He had night sweats. She said that he "lived on APC powders". When he was stressed he had sleepless nights, whilst at other times his sleep was disturbed because of nightmares. She said the Veteran always felt that everything was going wrong for him. At times he was deeply depressed, but not for long periods.
The Applicant said that in the 1960s the Veteran's weight reached 18 stone following the operation on his knee. She said he lost weight after he had the car accident and just before he died. At other times "he was never very successful" when trying to lose weight. During the interval between his car accident and his death he was President of the golf club and he went there to drink.
The Applicant said the Veteran often suffered from shortness of breath at night from the time of his car accident. The Veteran would "make himself" do things if he wanted to, but he asked his sons to do the heavier tasks. He played golf occasionally, but he always felt "crippled up" by the time they finished. He found it harder to walk and he walked more slowly. As the Veteran became older he lost the will to do a lot of things that he did earlier. Before his accident the Veteran worked, played golf, danced and washed the cars. Those activities ceased subsequent to the car accident. She also said at another point in her evidence that the Veteran did not play golf for about ten years prior to his death.The Applicant understood that Dr James was treating the Veteran for hypertension in about 1950 and that medication for hypertension was constantly prescribed until he died. When they moved to Canowindra in 1956, Dr Knight continued the treatment for hypertension. She said that Dr Knight told her that the Veteran's weight was "far too heavy". The Applicant did not recall discussing diabetes with any of the doctors.
Applicant's sonOral evidence was given by the Applicant's son, William Harold Hilton, who was born in 1951. He recalled that when the Veteran finished work about 4 or 5 pm he always went to the club or hotel for two to four hours and returned home to eat a meal about 8.30 pm. This recollection related to the period when William Hilton was at school and until he was about 20 years old. He also recalled the Veteran drinking regularly after football from 5.30pm until midnight or 1 am, and he also drank regularly on a Friday night. William Hilton did not notice how much the Veteran drank, but he knew the Veteran drank beer when he was younger and then later he drank "scotch and water or beer". He said the Veteran did not drink at home. He said that in 1974 he moved to Cowra, but his parents did not follow him to Cowra until 1979. Mr Hilton then moved to Bathurst in 1982.
Mr Hilton said that his mother "went crook" about the Veteran's drinking, but they never argued in front of the children. Mr Hilton noticed that the Veteran's speech was "a bit slurred" when he came home for his evening meal. Mr Hilton also said that they "always had soft drink in the fridge".
Mr Hilton said that his father "always had high blood pressure". He said the Veteran was "always a worrier but kept it to himself". He said the Veteran "would bottle a lot of things up". He "always suffered from headaches" and took analgesics for these. Mr Hilton said that whenever they asked the Veteran about the war in New Guinea he changed the subject. However the Veteran always attended the Anzac Day march and made sure his children supported the march. He said that one of the Veteran's best friends was killed during a horse stampede when the Veteran was in the Light Horse. He said that the Veteran had "a big hate for the Japanese".
In respect of his relationship with the Veteran, he said his father was his "best mate". Mr Hilton left school to help in the dairy after his father contracted "Golden Staph". He said the Veteran was very supportive of his children in everything they did, and he was never aggressive towards them.
Mr Hilton said that the Veteran "always had too much weight" and a "predominant stomach". He lost weight in 1968/69 after having "Golden Staph" but later he put weight on again. His weight then remained constant until he had the car accident. He said the Veteran was not a big eater, he always missed meals and only ate at night.
Mr Hilton said that his parents both liked playing golf, and the Veteran played golf until the last 12 to 18 months of his life.
Included in the clinical notes of Dr Davidson (exhibit 1, p22) is a letter from a firm of solicitors in Cowra to Dr Davidson dated 26 June 1986 in which it was stated that –
Mr Robert Hilton Jnr has indicated to us his father was not a problem drinker or a very heavy drinker except on isolated occasions. He states that he was a regular drinker and used to go to the Hotel most afternoons for a drink for about an hour.
Dr Davidson replied to the solicitor on 9 July 1986 (exhibit 1, p19), viz. –
I was aware that Mr Hilton took some regular alcohol each day. The only time that I recorded the actual amount was on 10th July, 1984 when he told me he drank 8 whiskies a day. I considered that significant, particularly in view of his weight problems and his hypertension.
Mr William Hilton's response to the information about the Veteran's drinking provided by his brother, Robert Hilton Jnr (supra) was that this comment could have related to a later period in the Veteran's life when he was not working in the dairy. He also said that his brother was not a drinker and he "would not know". In relation to the information provided by Dr Davidson, William Hilton said –
Eight whiskies a day would not surprise me. He had a couple of double scotches at lunch time and a couple before he went back to Cowra, a distance of 40 miles.
medical evidence
Service medical records note that prior to enlistment the Veteran weighed 158 pounds on 7 August 1940 (T4, p11), and on 20 December 1941 he weighed 172 pounds (T4, p23). On 25 August 1942 he weighed 189 pounds (T14, p12) and "small fibroma above left knee" was noted. On 21 November 1945, during a medical examination prior to discharge, the Veteran's weight was recorded as 175 pounds, blood pressure was recorded as 132/64, and the medical officer noted that the Veteran suffered from "bursitis R knee" (T4, p16). This appears to be the only blood pressure recording in the Veteran's service records.
The service records indicate that on 18 June 1942 the Veteran suffered an injury to his right knee, after hitting it against a stump whilst in a firing position (T4, p17). His knee was swollen and he was treated two days later at Camden District Hospital. There is further corroborating evidence with respect to that incident (T4, pp57 and 59).
Clinical notes of Dr Davidson record that on 18 July 1984, the Veteran was unable to exercise because of his knees (exhibit 1, p27), and on 27 December 1984 it was noted that the blood pressure medication that he was taking at the time made him tired.
The Veteran sustained an injury to his hand at work in January 1985 that was sutured. On his way back to work he sustained a motor vehicle accident in which he sustained multiple severe lacerations, and he remained in hospital until 21 May 1985. The Tribunal notes an entry dated 8 July 1985 that " 'Attendants' worried about his ankle oedema" (exhibit 1, p28).
A Letter from Orange Base Hospital dated 21 May 1985 (exhibit 1, p23) noted therapy for the Veteran involved "nutrition (but care regarding putting on fat)" after his motor vehicle accident. It was recommended that he should remain at about his "current weight", but his current weight was not stated.
A medico-legal report of Dr J Munk, dated 17 September 1985 (exhibit 1, p15), prepared in conjunction with the Veteran's motor vehicle accident claim, stated that there was a connection between the car accident and his heart attack on 7 August 1985. Dr Munk noted that the Veteran had multiple lacerations to various parts of his body repaired on 3 January 1985 under general anaesthetic. Post-operatively the Veteran became "quite confused and short of breath" and he then developed a diminished secretion of urine. He had abdominal pain and tenderness, and on 17 January 1985 a colostomy was performed. Dr Munk noted that because of his "chronic obstructive airways disease and cardiac failure" he was intubated. On 24 January 1985 bleeding occurred through his colostomy with considerable blood loss arising from a wound infection. A total colectomy was then carried out and an ileostomy performed. His post-operative recovery was slow and he developed a drug resistant staphlococcal infection. At that stage he also developed a large pressure area over the sacrum. He was discharged from hospital on 21 May 1985. Subsequently he developed tingling in his left little finger, and slight pain in his left elbow and forearm on several occasions. Dr Munk noted that at the time of the Veteran's death healing of his lacerations had still not occurred "and he may have developed irreversible changes in his veins, due to the possibility of thrombosis". Dr Munk concluded –
This gentleman went through quite a lot, both mentally and bodily, as a result of this injury and on many occasions I thought he was going to die. This was quite a stressful situation and I feel there is definitely some relationship.
Dr Davidson noted in a medico-legal report dated 29 October 1985 (exhibit 1, p13) that prior to the car accident the Veteran was "obese and had significant hypertension which was being treated with Aldomet and Isoptin". A fasting blood sugar test on 29 August 1984 of 8.6 mm/1 pointed to the possibility of diabetes but he had no symptoms of diabetes. Therefore Dr Davidson simply advised the Veteran about weight loss, maintaining a diabetic diet and avoiding alcohol. He also noted that the Veteran was restricted in his ability to exercise because of arthritis in his knee.
Dr Davidson concluded –
The consequences of Mr Hilton's motor vehicle accident were a series of life threatening problems which must have been a great strain on his heart and may have contributed to his sudden death which was due to cardiac arrhythmia secondary to myocardial ischaemia. It is important to note however that he had significant risk factors for heart disease prior to the accident. Then (sic) included hypertension, mild diabeties (sic), and obesity.
In response to a letter from a solicitor to Dr Davidson dated 11 November 1985 (exhibit 1, p12) Dr Davidson (exhibit 1, p11, 21 November 1985) noted that the Veteran's weight loss of five or six stone and the reduction of his alcohol intake after his accident would have had a minimal effect on his risk of myocardial ischaemia and arrhythmia.
A medico-legal report of Dr Peter Kendall, consultant physician, dated 19 May 1986, produced for the purposes of the motor vehicle accident claim (exhibit 1, p2) noted his reservation about the actual cause of death stated on the death certificate. He said that if the Veteran died from an acute cardiac event then he considered that his "severe illness" following the accident to be responsible "to a very major extent". He said (at 8) -
There is no doubt that coronary heart disease on the whole is multifactorial. Obesity, hypertension, cigarette smoking, hyperlipidaemia, hereditary factors, prolonged emotional stress perceived as stressful by the individual, diabetes are all involved …
…
This man had dreadful injuries obviously with severe injury to his abdominal viscera requiring ultimately removal of his large intestine and the formation of an ileostomy. Also because of his illness he had significant abnormal liver function tests and developed respiratory distress and cardiac failure. Finally it is likely that he had developed deep venous thrombosis in his left leg. Such severe injuries and so complicated and debilitating an illness could not but have caused progression of whatever underlying coronary heart disease might have been present and accelerated his death probably by a number of years.
... Furthermore where congestive heart failure is promoted (and apparently this occurred here) this in itself imposes an extra load on the heart.
I think we are unjustified in assuming that this man would have developed significant symptoms and signs of ischaemic heart disease with or without coronary occlusion/myocardial infarction/ventricular fibrillation without the severe stress of his long and complicated and disastrous illness following his accident. If one would accept the contention that such an event might have occurred sometime, then it is reasonable to assume that a man who did not have his constitution undermined in this fashion would have survived it and lived on "to fight another day". Thus at least very significant acceleration of his death must have occurred.A further medico-legal report of Dr Davidson dated 8 July 1986 (exhibit 1, p20) noted that he first recorded the Veteran's hypertension in 1983 when it was 200/110. His weight at that time was 17½ stone. He also noted other blood pressure readings of 180/100, 180/90 and 165/110 in 1983. In July 1984, it was 180/100 and in December 1984 it was 190/110 at which time medication was changed as the previous medication had caused the Veteran to feel tired and so he ceased taking it. His weight in December 1984 was 19½ stone.
Dr Davidson clarified that he had no record of chronic lung disease notwithstanding some complaints by the Veteran pertaining to dyspnoea on exertion in 1984. Chest x-ray in August 1984 indicated that the Veteran's heart was slightly enlarged and there was some unfolding of the thoracic aorta. The lungs were mildly congested but were otherwise clear (exhibit 1, p25). Dr Davidson noted thereafter that the Veteran improved markedly following medication. Dr Davidson considered the aetiology of the Veteran's cardiac failure was most likely hypertensive and possibly ischaemic.
In a letter dated 22 January 1997 (T4, p 37) Dr Davidson noted that the Veteran had been treated for hypertension while living in Canowindra, prior to the consultation with him on 12 April 1983 when he diagnosed "very significant hypertension" with a blood pressure reading of 200/110. Dr Davidson noted that he prescribed anti-hypertensive medication in 1983 and he continued to prescribe this treatment until his death. No further blood sugar tests were performed after 1984 to confirm or deny diabetes.
Another letter from Dr Davidson dated 7 May 1997 stated that the most likely explanation for the Veteran's death, in the absence of a post mortem report and lack of evidence to suggest dyspnoea or choking, was that he had suffered a cardiac arrhythmia secondary to ischaemic heart disease.
Professor P J V Beaumont, psychiatrist, interviewed the Applicant and Mr William Hilton on 14 December 1998 and prepared medico-legal reports dated 25 January 1999 and 16 February 1999 (exhibit A). He obtained the following history from the Applicant about the Veteran's service and its relationship to his medical conditions -
…Before enlisting he had been well, with no complaints and did not drink. After discharge he complained of frequent headaches that curtailed his ability to work in enclosed spaces. He had also sustained a knee injury that prevented him from participating in the active sports that he enjoyed, such as Rugby League.
….
Mr Hilton's health problems started insidiously from the time of his discharge from the army. Because of his relative inactivity, he steadily gained weight so as to become obese. His consumption of alcohol increased steadily, from what was described as only moderate during the war years, to a large but unspecified amount a few years later. He continued to drink heavily throughout his life, as certified by his son, drinking from about 4.00pm to 8.30pm on most nights.
In 1956, Mr Hilton came under the care of Dr Knight, a general practitioner in Canowindra, who treated him until his own death in 1983…Mrs Hilton says he was treated for hypertension, and that Dr Knight told Mr Hilton that his illness was a direct result of his heavy drinking and obesity, and an indirect effect of his high levels of anxiety resulting from his war-time experiences.
Mrs Hilton and her son said that Mr Hilton had told them very little about his war-time experiences…
Nevertheless, Mrs Hilton believed that he had been seriously emotionally disturbed by his war service. She based this on his behaviour: his heavy inability to sleep without medication, frequent nightmares from which he would awake perspiring, rages that appeared to be unprovoked, and recurrent episodes of depression and worry.
Professor Beaumont considered it highly probable that the Veteran's death was related to ischaemic heart disease. He noted that hypertension, obesity and heavy alcohol intake were all factors that predisposed to the disease, and he considered it probable that they played a significant role in the Veteran's case.
He also considered that other contributory factors could have been the motor accident and the resulting injuries that were sustained. He said it was possible that the Veteran's service experience contributed to his later heavy alcohol consumption, but the information available did not reveal evidence to enable him to be confident in raising that possibility.
In his supplementary report dated 16 February 1999 (exhibit A) Professor Beaumont stated there was a reasonable hypothesis that the Veteran's drinking and obesity were caused by his war service. He considered it was highly probable that the Veteran's death was related to ischaemic heart disease, despite the absence of a post mortem report. He considered it probable that heavy alcohol consumption, hypertension and obesity played a significant role in the Veteran's ischaemic heart disease. However, he also considered it possible that the car accident and the injuries arising from the accident were contributory factors. He reiterated the possibility that the Veteran's Army service contributed to his heavy alcohol intake.
consideration of evidence and submissions, and findings of factIt was submitted for the Applicant that hypertension was relied upon primarily, along with the obesity factor and "inability to exercise". It was submitted that the Veteran's inability to exercise resulted from his hypertension and obesity. The links to be made were –
The Veteran suffered from malaria on service and as a result he could not exercise in the early years post-service.
The Veteran became increasingly obese due to lack of exercise and he remained that way.
His hypertension subsequently worsened and his exercise tolerance dropped progressively.
It was submitted that obesity had a long-lasting effect, particularly because of the Veteran's drinking habit. Because there were several factors acting upon each other, they had to be considered in context. Although it was difficult to identify one single cause it was submitted that malaria had a debilitating effect, the Veteran gained weight soon after discharge, and once obesity was established, the resulting causal chain was also established.
The Respondent conceded that the death of the Veteran was contributed to by his ischaemic heart disease and that the onset of his hypertension was prior to the clinical onset of his ischaemic heart disease. However, the date of the clinical onset of ischaemic heart disease was not clear.
The Legal Status of the RMA's Obesity StatementIt was submitted for the Applicant that the Obesity Statement did not apply to this application because of the decision of Keeley v Repatriation Commission (2000) 98 FCR 108. That Statement was incorporated into Instrument No. 64 of 1998 on Hypertension by an amendment gazetted on 9 September 1998, which was after the date of the primary decision. Instrument No. 83 of 1995 did not define the meaning of "suffering from persistent obesity", but defined "obesity" at clause 4 as constituting a body mass index greater than 30. There was no other requirement as to the manner in which the Tribunal was to treat raised facts of obesity. Accordingly, the Obesity Statement was not relevant in applying the Hypertension Instrument No. 83 of 1995.
It was submitted for the Applicant that once the hypothesis connecting hypertension with war service was established, then hypertension in turn could be raised in the Ischaemic Heart Disease Statement of Principles (factor 5(a) of Instrument No. 140 of 1996). It was submitted that the definition of "being obese" in clause 7 of that Instrument had no bearing on the capacity to raise hypertension in the same Instrument.
In any event, Counsel for the Applicant submitted that the RMA only had power to issue Statements of Principles which were about injuries or diseases, and consequently the Statement in question had no statutory effect. Although it may have been intended to obviate the need for that whole separate statement to be included in every document to which reference was made to "obese", it was submitted the RMA had no power to exercise such intent.
Counsel for the Applicant referred to s196B(2) of the Act and s49A of the Acts Interpretation Act 1901 ("the AIA") and submitted that a Statement of Principles that referred to another document to authorise the use of the content of the latter was ultra vires. It was conceded, however, that the RMA had the authority to list conditions in a Statement of Principles that were not diseases or injuries.
The Respondent submitted that the Obesity Statement carried statutory force as part of the Statement of Principles which was delegated legislation. There was no argument about the fact that Statements of Principles were legislative instruments and binding on decision-makers; VVA v Cohen [1986] 981 FCA 1.
It was noted that s46A(1)(b) of the AIA provided -
section 49A applies in relation to the instrument as if (I) the instrument were regulations under an Act…
It was submitted that s49A indicated the RMA was entitled to incorporate by reference the test of any document it wished, as long as it was in existence at the time it made the Statement of Principles.
It was submitted for the Applicant in reply that this was "errant nonsense" and that it was a fundamental principle of the Westminster system that delegated legislative power was a limited power. This fundamental principle was also given statutory expression in s49A of the AIA where it was stated at the outset -
(1)Where an Act authorises or requires provision to be made for or in relation to any matter by regulations, the regulations may….make provision for that matter….
Therefore the power given by s49A of the AIA to incorporate into a Regulation things contained in other documents was not a free power, but limited by the subject matter for which there was jurisdiction to make Regulations. In respect of the RMA, the power that had been delegated by the Parliament in the Act was limited to that which appeared in that Act.
Counsel for the Applicant referred to s196B of the Act which, insofar as relevant, provides -
(2)If the Authority is of the view that…..a particular kind of injury, disease or death can be related to…[service]….the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death….
It was submitted that having determined that obesity was not an injury or disease, the RMA could not then make a Statement of Principles in respect of it, and by a "back door method" create a Statement that in nature and effect amounted to a Statement of Principles. It was submitted that the RMA had no power to do indirectly what it had not been given the power to do directly.
Counsel for the Applicant conceded it was within the RMA's power to incorporate into Statements of Principles (by using the facilitative provisions of s49A of the AIA), codes that were derived from the International Classification of Diseases as those codes were in respect of injury and disease.
It was submitted for the Respondent that the Obesity Statement, on its own, was merely a statement of opinion by the RMA and had no legal effect. However once it was incorporated by reference to a Statement of Principle it was just as much a part of it, and carried the same legislative force, as any other words in the Statement of Principles.
The Respondent conceded that because Instrument No. 83 of 1995 on Hypertension does not refer to the RMA's Obesity Statement that statement has no binding effect on either the Repatriation Commission or the Tribunal. However, reference is made to the Obesity Statement in Instrument No.140 of 1996 in respect of Ischaemic Heart Disease, and therefore that statement is binding and must be applied in respect of factor 5(c).
The Tribunal does not accept the Applicant's submissions that the RMA has no power to make the Obesity Statement because it is not a statement about an injury or disease. The Tribunal considers that the RMA's Obesity Statement has the same function as many of the definitions incorporated in specific Statements of Principles, but because of its application to a number of diseases or injuries it is justifiable to have it as a "stand alone" statement to which reference is made specifically in those Statements of Principles where it is to be applied. The Tribunal does not accept the Applicant's submission that this in effect is ultra vires.
The Tribunal considers that, with respect, the Respondent's position on the application of the Obesity Statement is correct, that is, that because no reference is made to the Obesity Statement in the Hypertension Statement of Principles it has no legal standing in respect of that Instrument, but because specific reference is made to the Obesity Statement in the Ischaemic Heart Disease Statement of Principles, then in respect of factor 5(c) the Tribunal is bound to apply the Obesity Statement in the consideration of that factor. This has the potentially anomalous effect that although the Obesity Statement does not need to be applied in respect of the Hypertension Instrument and if successful on that Instrument, hypertension can then be a factor [5(a)] in the Ischaemic Heart Disease Instrument, the Obesity Statement must be applied in factor 5(c) of that Instrument.
Hypothesis 1The Applicant's first hypothesis is that the Veteran's war service caused psychoactive substance abuse causing hypertension leading to ischaemic heart disease and subsequently to the Veteran's death. Factor 1(b) of Instrument No. 83 of 1995 concerning Hypertension provides:
Suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;
The Respondent submitted that the accurate determination of hypertension was about 1950, at the latest, when the Veteran began treatment for hypertension. The Respondent relied on the statement provided with the claim form (T4, p 29), viz.:
Hypertension was diagnosed in the late 1940's and my husband was continually receiving treatment for this disorder up until the time of his death.
It was submitted that this statement is consistent with the Applicant's oral evidence. In effect the Applicant agreed with this submission. The Tribunal finds that the accurate determination of the Veteran's hypertension was about 1950.
Although the Applicant relied, in the alternative, on the clinical worsening of hypertension, the Tribunal finds that the application cannot succeed on this basis. The relevant factors in respect of clinical worsening in this case are 1(v) and (w). The Statement of Principles requires that in respect of those factors, the Veteran's hypertension must be accurately determined prior to the war service to which the factor relates. As the condition was only diagnosed about 1950, this was after his relevant war service.
It was submitted for the Applicant that the Veteran consumed alcohol daily prior to the development of his hypertension and he continued the habit thereafter. It was submitted for the Respondent that there was no suggestion in the evidence that the Veteran was suffering from psychoactive substance abuse prior to the accurate determination of his hypertension, and the Applicant's oral evidence (transcript p37) indicates that prior to the accurate determination of his hypertension, the Veteran was not consuming alcohol daily. Therefore, the Respondent submitted, the first of the hypotheses raised by the Applicant fails as factor 1(b) has not been satisfied.
The Respondent submitted that in accordance with the Federal Court decision in McKenna v Repatriation Commission [1999] FCA 323, each of the Statements of Principles in the causal chain needs to be met before the hypothesis is established. The Tribunal agrees with this submission. The implication of this is that within factor 1(b) the Applicant has to show that the Veteran suffered from psychoactive substance abuse and in so doing must meet the relevant Statement of Principles for Psychoactive Substance Abuse: Instrument No.5 of 1994.
Factors 1(a) and (b) are relevant in respect of Instrument No.5 of 1994. They provide –
(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b) having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;
"Psychoactive substance abuse or dependence" is defined in the Statement of Principles to mean –
a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or current social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
"Psychiatric condition" is defined in the Statement of Principles to mean –
any psychiatric illness that attracts a diagnosis under DSM-IV.
"Stressful event" is defined in the Statement of Principles to mean –
an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
It was submitted for the Applicant that the Veteran was subjected to significant stressors, notwithstanding uncertainty about when the alcohol use and subsequent drinking pattern commenced. In essence, having returned from service the Veteran was a "changed man" who developed at some point an alcohol habit. It was submitted that the reasonable inference to be made from that was that the alcohol habit developed about the time when he was discharged.
It was also submitted that the Applicant suffered from a psychiatric disorder at the time of alcohol dependence. Counsel for the Applicant highlighted that Professor Beaumont diagnosed the Applicant with "anxiety" which could be classified as a psychiatric condition and that on the basis of the history given to him, it was possible that his service experience contributed to his later excessive use of alcohol. It was submitted that the hypothesis raised was one that went beyond mere speculation and that it was reasonable based on the medical opinion before the Tribunal. It was also submitted for the Applicant that it was necessary to establish only that there existed a psychiatric disorder and that it was not necessary to identify any particular psychiatric disorder.
It was submitted for the Respondent that the Veteran did not possess the attributes of alcohol abuse or dependence as defined in the relevant Statement of Principles. The Respondent conceded however that it was possible that the Veteran's service experience contributed to his later excessive alcohol consumption, but there was insufficient evidence before the Tribunal to be "confident" about that conclusion. In essence, it was submitted the Tribunal was bound to follow the Federal Court decision of Repatriation Commission v Cooke (1998) 160 ALR 17 and accordingly must determine on the balance of probabilities whether the Veteran suffered from alcohol dependence or abuse. In this case, it was submitted that such a diagnosis on the evidence was too tenuous and at best mere speculation. It was noted for the Respondent that no diagnosis of any psychiatric disorder including alcohol dependence or abuse was made by Dr Davidson.
The Tribunal, in considering all the evidence and the submissions, finds that an hypothesis has been raised that the Veteran experienced stressful events on service in New Guinea that resulted in psychological stress that caused subjective symptoms of increased stress. The evidence was that he returned from the War a "changed man", he suffered from nightmares and sleep disturbance regularly for the rest of his life, he had bouts of depression, he suffered from severe headaches, he had outbursts of aggression, and he refused to discuss his war experiences.
The Tribunal notes the Applicant's responses to the alcohol questionnaire (T4, p92-3) where she indicated that the Veteran drank two or three times a week. In her oral evidence she said that when he was on leave during his Army service she noted that he drank two or three times a week, and in relation to question 7 he drank two or three times a week towards the end of his life after the motor vehicle accident. The Applicant's evidence and that of Mr William Hilton was that he drank every day after work for about three hours. Her evidence was that after he had been out of the Army "for a while" he drank a lot more than previously. He was discharged in January 1946. Her evidence also was that he was first diagnosed and treated for hypertension by Dr James about 1950. They moved to Canowindra in 1956 and Dr Knight then treated the Veteran's hypertension. Although there are no blood pressure readings available to the Tribunal between 1946 when it was recorded as 132/64 and 1983 when Dr Davidson commenced treating the Veteran and noted a reading of 200/110, the Tribunal finds that an hypothesis has been raised that the Veteran developed hypertension and commenced treatment for it about 1950.
Mr William Hilton was born in 1951, and the Tribunal finds that his evidence about his childhood observations of his father's drinking would not have related to the period prior to 1960. The evidence as to the commencement of the Veteran's daily drinking habit is less specific than that relating to the commencement of his treatment for hypertension. The Applicant's evidence about the Veteran's daily drinking habit is of little assistance in helping the Tribunal to date the commencement of that pattern of drinking. The Applicant was a poor historian, and much of her evidence was not very specific. We know from her written statement (T4, p94-5) that the Veteran had difficulty settling after the war, that he was "deeply stressed", he suffered "extremely bad headaches (continually)". We know from her oral evidence that he moved from job to job and from place to place for some time. We know he drank five days a week when he worked in the dairy and he also drank then at weekends. However, it is not clear from the evidence whether the Applicant's reference to the "dairy" related to the 18 months when they had the dairy farm in Queensland, or when he worked in a dairy between 1960 and 1970. On one interpretation of the evidence it is possible that the Veteran's daily consumption of alcohol commenced prior to the diagnosis and treatment of his hypertension by Dr James. The issue is whether there is sufficient strength in this evidence to constitute a reasonable hypothesis.
It was submitted for the Applicant that the Act was beneficial legislation and the Tribunal was obliged to act in accordance with s119(g) and s119(1)(h)(i) of the Act. It was submitted that this case was a classic example of when the Tribunal needed to consider the difficulties that lie in the way of ascertaining the existence of any fact including the effects of the "passage of time" since the period in question was almost 55 years ago. The Tribunal has taken the issues of the "passage of time" into account, but the variability of the Applicant's evidence and her lack of specificity in the way she gave her evidence is not something that can be overcome by s119. It is not the function of s119 to fill the gaps left by a poor witness. The real weakness in this case related to the evidence of the Applicant.
In considering the evidence about the Veteran's daily drinking habit and the onset of his hypertension, the Tribunal refers to the decision of the High Court in Bushell v Repatriation Commission (1992) 16 AAR 1, in which it was held in respect of s120(3) of the Act that the material will raise a reasonable hypothesis if it points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Turning now to the Statement of Principles, paragraph 1 identifies factors "that must as a minimum exist before it can be said that a reasonable hypothesis has been raised". Taking the Bushell test into account in respect of "the raised facts" the Tribunal interprets that in considering whether the raised facts meet the Statement of Principles, the test is that to which the High Court referred in Bushell. The raised facts do not need to be proven, and indeed any proof in respect of the test in s120 arises from s120(1) of the Act which requires the Tribunal in effect to apply the reverse criminal standard a proof to the totality of the evidence in considering whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war caused.
Returning now to the issue of whether factor 1(b) of Instrument No.83 of 1995 relating to Psychoactive Substance Abuse has been satisfied, and considering the nature of the test that must be applied to the evidence, the Tribunal finds that a reasonable hypothesis has been raised that the Veteran consumed alcohol on a daily basis before and continuing at least until the diagnosis of his hypertension about 1950.
The next issue is whether the Veteran's pattern of alcohol consumption prior to the diagnosis and treatment of his hypertension, met the definition of "psychoactive substance abuse" in the Statement of Principles. There is no evidence as to any knowledge of the Veteran in those years about having a persistent or current social, occupational, psychological or physical problem that was caused or exacerbated by his use of alcohol, and therefore clause (a) is not met. If the Veteran was driving home after his daily drinking at the hotel, then that would have been physically hazardous as it is very likely he would have consumed sufficient alcohol for his driving to be impaired even though the Applicant's evidence was that he did not come home "drunk". Mr William Hilton's evidence was that at times his speech was slurred. The real difficulty with the evidence of the Applicant is to know whether it related to the period of the Veteran's drinking prior to the diagnosis of his hypertension about 1950. It is clear that Mr Hilton's evidence does not relate to that period, as he was not born until 1951.
The Tribunal finds on the evidence that this part of the hypothesis is merely left open by the evidence rather than being pointed to by the evidence. The Tribunal has no evidence as to whether the Veteran owned or drove a car at that stage of his life. The only evidence as to whether he Veteran drove home after drinking at the hotel was from Mr William Hilton, who noted that the Veteran drove some 40 miles from Canowindra to Cowra, but on Mr Hilton's evidence his parents did not go to live in Cowra until 1979. There is no evidence that the Veteran's drinking up to 1950 was physically hazardous. Therefore he did not suffer from "psychoactive substance abuse" as defined in the Statement of Principles. Hence, factor 1(b) of the Hypertension Statement of Principles is not met.
Therefore the Applicant's case fails on the first hypothesis that the Veteran's war-caused alcohol habit contributed to the development of hypertension which in turn contributed to the later development of ischaemic heart disease and ultimately to his death.
Hypothesis 2The second hypothesis raised by the Applicant links the Veteran's death from ischaemic heart disease with hypertension caused by his obesity due to alcohol consumption and reduction in exercise due to his painful knees caused by war service. With respect to this hypothesis, factor 1(a) of Instrument No. 83 of 1995 is relevant:
suffering from persistent obesity before and continuing at least until the accurate determination of hypertension;
The Statement of Principles defines "obesity" as a Body Mass Index greater than 30. The Respondent submitted that the Obesity Statement, whilst not binding in respect of the Hypertension Instrument, is admissible as evidence from appropriately qualified medical experts as to the causes of obesity and how they can be related to a Veteran's service. The Tribunal does not intend to use the Obesity Statement in considering this Statement of Principles because it is not part of the Hypertension Instrument and because of the objections raised by the Applicant.
The Respondent submitted that there is no evidence to support the hypothesis that the Applicant was obese prior to the accurate determination of his hypertension. His discharge weight was listed as 175lb (T4, p16), that being 79.5 kilograms. The Applicant's oral evidence was that the Veteran gradually increased weight over a period of time. It was submitted that her evidence was that the Veteran was not drinking alcohol daily prior to the accurate determination of hypertension. It was submitted that whilst the Veteran was unable to play football following his discharge, there was no evidence to suggest he was unable to undertake moderate forms of exercise prior to the accurate determination of his hypertension. Indeed his knee did not become a problem until after he was living in Canowindra which was after the accurate determination of his hypertension. Further, the Applicant's evidence was that the Veteran ran a successful milk run business and helped run a dairy – occupations that rely on a moderate level of physical activity. The Respondent submitted that the second hypothesis also fails as factor 1(a) for Hypertension has not been satisfied.
It was conceded for the Respondent that, on the evidence of Professor Beaumont, the Veteran's obesity was at least partly caused because of his inability to exercise in the early years after discharge due to his war-caused malaria. However, the Respondent also submitted that there was no evidence before the Tribunal to suggest that the Veteran's post-war obesity was causally related to his service and no indication that his alcohol consumption contributed to his obesity, notwithstanding Dr Davidson's opinion. It was submitted that the Veteran's obesity was attributable to many factors and not necessarily alcohol. Indeed Professor Beaumont opined that the Veteran's weight gain resulted from his relative inactivity and the Applicant's evidence was to the same effect.
It was submitted for the Applicant that the Veteran was obese for most of his post-service life. There was a great increase from 158 to 189 pounds during his service, notwithstanding that on 14 November 1945 his weight reduced to 175 pounds. In any event it was submitted that the evidence given consistently by the Applicant and her son was that the Veteran's weight steadily increased and then was maintained at an obese level.
In applying the relevant Statement of Principles the Tribunal must calculate the Veteran's Body Mass Index. The Tribunal notes that in 1940 the Veteran's height was measured at 5'7½", and sixteen months later, when aged 19 years his height was 5'8". This increase in height would appear to reflect adolescent growth, associated with an increase in weight from 158 lbs. to 172 lbs. which would also be consistent with normal adolescent growth. In this context, the next recording of the Veteran's height on 28 August 1942 (T4, p19) at 5'7" would appear to be an error, and therefore it will not be used in the Tribunal's calculation of Body Mass Index. The Tribunal notes that on that occasion the Veteran's weight was recorded as 189 lbs, whereas his weight on discharge in November 1945 was only 175 lbs (T4, p16). The Tribunal considers that because of the discrepancy in both the height and weight measurements on 28 August 1942 those measurements should not be used in its calculations.
For the purpose of calculating the Body Mass Index the Tribunal will assume that the Veteran's height was 5'8" or 1.73 metres. Given that the Veteran's weight on discharge was 79.5 kg, and using the formula in the Statement of Principles, his Body Mass Index was 26.5 at the time of his discharge from the Army. He would have had a Body Mass Index of greater than 30 when he reached 90 kg, which was an increase of 10.5 kg from his weight on discharge. The evidence before the Tribunal is of no assistance in knowing when he reached 90 kg. All we know is that he gained weight and then maintained it at that level. On that basis it is reasonable to assume that his weight of 124kg in December 1984 had been maintained for some years prior to that time. However, there is no evidence to support the hypothesis that the Veteran suffered from "persistent obesity", that is, a weight of at least 90 kg, before and continuing until 1950 when hypertension was diagnosed and treatment commenced. It is no more than speculation that he had gained at least 10.5 kg within four years of his discharge. The Applicant's evidence does not assist the Tribunal to determine when the Veteran first reached his maximum weight. The evidence of William Hilton was that he "always had too much weight", but as Mr Hilton was not born at the time the Veteran's hypertension was first diagnosed, his evidence is not helpful in respect of the relevant period.
The Tribunal finds that factor 1(a) of Instrument No. 83 of 1995 has not been met.
Hypothesis 3The third hypothesis raised by the Applicant links the Veteran's death from ischaemic heart disease with an inability to undertake moderate exercise caused by his war service. Factor 5(g) of Instrument No. 140 of 1996 in respect of Ischaemic Heart Disease refers to:
an inability to undertake moderate or vigorous physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease;
It was submitted for the Respondent that the evidence before the Tribunal, in particular the death certificate (T4, p 33), and the clinical notes provided by Dr Davidson, indicate that the clinical onset of the Veteran's ischaemic heart disease was at the time of his death in August 1985.
The Statement of Principles defines "moderate or vigorous physical activity" as "physical activity greater than 3 METs". It was submitted for the Respondent that Table 1.1 of the Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition (GARP V), also uses METs ratings and provides the following list of example activities for that activity level:
Energy expended in walking at an average pace
Walking at average walking pace (5 km/h).
Golf (pulling buggy).
Machine assembly.
Cleaning car (excludes vigorous polishing).
Minor car repairs.
Tidying house.
Welding.
Cleaning windows.
Table tennis.
Pushing light power mower over flat suburban lawn at slow steady pace.
Vacuuming.
Sedate cycling (10 km/h).
Shifting chairs.
Light gardening (weeding and water).
Hanging out washing.
Making bed.
The Respondent submitted that factor 5(g) requires that the Veteran be unable to undertake adequate physical activity. It was submitted that the Veteran's inactivity was not related to service. In spite of any knee condition suffered by the Veteran, the Respondent does not concede that the Veteran's knee condition is related to his service. Any limitation in his ability to exercise was due to osteoarthritis in both knees. The Veteran clearly had the ability, if not the inclination, to undertake adequate physical activity to meet the requirements of the Statement of Principles.
Prior to his motor vehicle accident in January 1985 the Veteran was occupied as a butcher. Dr Kendall (exhibit 1, p10) refers to the "very arduous strain of butchery". The Respondent submitted that the history of the Veteran continuing to work as a butcher until the motor vehicle accident is inconsistent with the Applicant's hypothesis that the Veteran was unable to undertake moderate or vigorous physical activity during the five year period immediately prior to the onset of his ischaemic heart disease. The Respondent submitted that therefore the third hypothesis raised by the Applicant fails as factor 5(g) has not been satisfied.
Five years before the clinical onset of the Veteran's ischaemic heart disease was approximately 1979/80. The activity examples in GARP-V for above 3 METS is a helpful indicator in considering this factor and the Tribunal will apply it in considering the concept "moderate or vigorous physical activity". The Tribunal finds that on the evidence the hypothesis is raised by the Applicant's evidence that the Veteran was unable to undertake moderate physical activity because of the effects of his war-caused malaria and his knee injury, and that this meets factor 5(g) of the relevant Statement of Principles. Therefore, the Tribunal finds that a reasonable hypothesis has been raised, bearing in mind that at this stage of the s120(3) test findings of fact are not involved.
Moving now to s120(1), the Tribunal notes that the Veteran's mobility was significantly affected by a condition he suffered in his knees in 1968-69, and that he later developed osteoarthritis in both knees. However, of significance is the type of employment the Veteran sustained throughout his life, both before and after 1968-69, including conducting a milk run, working in a dairy and as a butcher. Each of these activities requires considerable walking and at least moderate physical activity, such that the Tribunal is satisfied beyond reasonable doubt that the Veteran was able to undertake moderate physical activity for at least the five years immediately before the clinical onset of his ischaemic heart disease in 1984/85. Therefore this hypothesis has been dispelled beyond reasonable doubt.
Hypothesis 4The fourth hypothesis raised by the Applicant links the Veteran's death from ischaemic heart disease with obesity caused by alcohol consumption and reduction in exercise due to a sore knee as a result of the Veteran's war service. In relation this hypothesis, factor 5(c) of Instrument No. 140 of 1996 refers to:
Being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease;
For the reasons already given the RMA's Obesity Statement is binding on the Tribunal when considering whether the hypothesis raised by the Applicant relating to factor 5(c) of the Ischaemic Heart Disease Statements of Principles is consistent with the template outlined in the Instrument.
The Respondent submitted that, whilst the Veteran may have been obese for a period of at least two years during the 15 years immediately prior to the clinical onset of his ischaemic heart disease, his obesity was not related to his service and therefore factor 5(c) of the Statement of Principles has not been met.
In the evidence before the Tribunal there are only five records of the Veteran's weight. Four of these are from his service medical records; the fifth is from the clinical notes provided by Dr Davidson.
Date Height Weight (lbs) Weight (kgs) Reference
7.8.1940 5' 7 ½" 158 71.8 T4, p11
20.12.1941 5' 8" 172 78.2 T4, p23
28.8.1942 5' 7" 189 85.9 T4, p19
21.11.1945 175 79.5 T4, p16
19.12.1984 273 124 exhibit 1, p21.
The Respondent submitted that the factor within the Obesity Statement that fits the hypothesis raised by the Applicant is factor (a) –
exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight.
The Applicant's oral evidence was that her husband's weight increased gradually over time. The Applicant has not submitted what the Veteran's baseline weight was. The Tribunal notes that in the Obesity Statement the baseline weight is the weight maintained prior to the introduction of the factor being considered, which in this case is increased caloric intake through alcohol. Therefore, the Tribunal finds that the Veteran's baseline weight was that at the time of his discharge, that being 79.5 kg. Hence, to meet the factor in the Obesity Statement he would need to have gained 15.9 kg, being a weight of 95.4 kg.
The Tribunal finds on the medical evidence that the Veteran's ischaemic heart disease had its clinical onset no earlier than the time of his motor vehicle accident. He had some symptoms of cardiac failure during his period in hospital following the accident, and chest X-ray showed some heart enlargement and unfolding of the aorta. While he is likely to have had ischaemic heart disease prior to his motor vehicle accident, there is no evidence to support the clinical onset of the condition prior to that time. Taking into account the requirements of the Obesity Statement and the evidence before the Tribunal, we find that the Veteran was obese for a period of at least two years within the 15 years immediately before the clinical onset of his ischaemic heart disease.
The Respondent submitted that it is speculative to suggest that the Veteran's alcohol consumption contributed to an excessive calorie intake. The Respondent noted the Veteran's soft drink and food consumption and the lack of evidence to suggest that the contribution to weight gain due to alcohol intake was more than minimal in the context of other dietary factors.
The Tribunal rejects this submission. The issue is whether the Veteran's alcohol intake contributed to his obesity. The evidence is that he drank beer and whisky daily for many years for up to three hours per day. His son's evidence was that the Veteran had a protruding abdomen, which the Tribunal understands to be known commonly as "a beer gut", he frequently skipped meals and was not a bit eater. Notwithstanding that the Veteran also consumed soft drink regularly, which would have contributed to his obesity, the Tribunal finds that the contribution of his regular alcohol consumption was certainly more than de minimus.
The Respondent also submitted that the Applicant must establish that the Veteran consumed alcohol because of his war service. The Applicant has assumed that because the Veteran was spending longer periods of time at the hotel that his alcohol consumption was increasing. Neither the Applicant nor Mr William Hilton knew the quantity of alcohol consumed by the Veteran at the hotel. The Respondent submitted that given that the Veteran was at one stage President of the golf club he might well have been doing work involved with his presidency rather than drinking. It must also be considered, given the Veteran's consumption of soft drinks at home, that he also drank soft drink at the hotel or club.
It was submitted for the Respondent that as the Veteran was consuming only a moderate amount of alcohol prior to moving to Canowindra in the early 1950s there is a clear break in any alcohol consumption that may have occurred during service, and his post service consumption. Further, given that the Veteran never told anyone about the reasons why he drank, nor about his experiences during his war service, the Respondent submitted that it is merely speculative to suggest that he consumed alcohol because of his war service.
Having considered all the evidence the Tribunal considers that there is no strong evidence to support the hypothesis that the Veteran drank alcohol because of his war service. Although there is evidence that he commenced drinking on service (T4, p92) this is no more than a temporal connection. The Applicant noted in that evidence that she observed while the Veteran was on leave during his war service that he drank "only very moderate amounts". It could be argued that there is nothing in the evidence to show that the Veteran's regular consumption of alcohol that developed some time after his discharge from the Army was anything more than a habit. There is no evidence that he was addicted to alcohol.
Professor Beaumont has provided the best evidence available on the association between the Veteran's drinking and his war service. He said –
It is possible that his service experience contributed to his later excessive usage of alcohol, but neither the documents I have seen nor Mrs Hilton's account provide information allowing me to be confident that that was the case.
The issue is whether this opinion is no more than mere speculation or whether Professor Beaumont was looking for a level of confidence normally sought by experts providing a medical opinion that is greater than that required for the reasonable hypothesis test. Professor Beaumont apparently had before him the same sort of evidence that was before the Tribunal, that is, that the Veteran suffered chronically from symptoms of stress, anxiety, nightmares, sleep disturbance, headaches and depression, that may well have been associated with his war service. It is open to the Tribunal to find, and we so find, that Professor Beaumont's opinion, while very guarded, is an opinion provided by a competent and relevant expert, based on the limited facts available to him, that it is possible that the Veteran's drinking was related to his war service, and that it is not merely speculation or conjecture. It is truly a fact raised by the evidence, and the evidence on which the decision turns. On this basis factor 5(c) of the Ischaemic Heart Disease Statement of Principles is met.
Applying the test set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, the Tribunal is not required to enter into fact finding in the process of considering whether a reasonable hypothesis has been raised pursuant to s120(3). An hypothesis has been raised by the evidence which meets factor 5(c) of the Ischaemic Heart Disease Statement of Principles. Therefore a reasonable hypothesis has been raised and s120(3) has been satisfied.
Moving now to s120(1), the Tribunal must consider whether it is satisfied beyond reasonable doubt that the Veteran's death from ischaemic heart disease was not war-caused. It is only at this stage that the Tribunal is required to find facts from the material before it. While the Respondent raised alternative facts that could have contributed to the Veteran's death, either additionally or in the alternative, there is no evidence before the Tribunal to enable it to be satisfied beyond reasonable doubt that the Veteran's death was not contributed to in a material degree by his war service.
The Tribunal sets aside the decision under review, and substitutes its decision that the Veteran's death was war-caused. The effective date for payment of pension to the Applicant is 7 January 1997, being a date not earlier than three months before the lodgement of her claim.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr J Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 1 July 1999
Date of Decision 18 January 2001
Counsel for the Applicant M.Vincent
Solicitor for the Applicant Kenneth Harrison Solicitors
Counsel for the Respondent N/A
Solicitor for the Respondent Z.Mijanovic, Dept. of Veterans' Affairs
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