KIM GRAY and REPATRIATION COMMISSION
[2009] AATA 832
•28 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 832
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5497
VETERANS' AFFAIRS DIVISION ) Re KIM GRAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date28 October 2009
PlaceMelbourne
Decision The decision of the Veterans' Review Board made on 25 August 2008 is set aside and in substitution IT IS DECIDED the death of the late Peter Brasier Gray is defence-caused. (Sgd) John Handley
Senior Member
VETERANS' ENTITLEMENTS – Application by widow – death from ischaemic heart disease – deceased suffered injuries from service authorised sporting activities – subsequently relieved from compulsory fitness assessments and withdrawal from competitive sport – weight of deceased increased – Body Mass Index greater than 30 at relevant times – deceased was obese as defined by SOP for ischaemic heart disease – increase in weight connected with service on balance of probabilities – Veterans' Review Board decision set aside
Veterans’ Entitlements Act 1986(Cth) s 5Q(1A), s 68(1), s 69, s 70(5)(a), s 120(4), s 120B,
Keeley v Repatriation Commission (1999) FCA 1103
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Law (1981) 36 ALR 411
Roncevich v Repatriation Commission [2005] HCA 40
Walsh v Rother District Council (1978) 1 ALL ER 510
Williams v Repatriation Commission [2001] FCA 601
REASONS FOR DECISION
28 October 2009 Mr John Handley, Senior Member 1. Mrs Gray the applicant in these proceedings is the widow of the late Peter Brasier Gray who died on 21 July 2005 at age 53 years. Death was certified to be from ischaemic heart disease (IHD) and insulin dependant diabetes mellitus. The Veterans’ Review Board (VRB) found that death was not defence caused and it affirmed a decision previously made by the respondent.
2. The late veteran was a member of the Australian Army between 9 July 1969 and 25 October 1992. Defence Service occurred between 7 December 1972 and 25 October 1992. The widow’s application must be established on the balance of probabilities pursuant to s 120(4) and s 120B of the Veterans’ Entitlement Act 1986 (the Act).
3. The applicant relied on Statement of Principle (SoP) Number 90 of 2007 entitled IHD which was in force at the date of the hearing.Factor 6(c) of that instrument recorded that death from IHD will be connected on the balance of probabilities with a person’s relevant service if that person (is) being obese for at least five years within the 15 years before the clinical onset of ischaemic heart disease. Paragraph 5(c) of a similarly entitled instrument being number 50 of 2003 (revoked by the above Statement of Principle but existing at the date of claim) provided that the connection with service on the balance of probabilities will be found if the deceased (is) being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease.
4. Being obese is defined within both instruments in identical terms being, an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
5. Immediately following the conclusion of the hearing, the representatives of the parties submitted an agreed statement of their calculations of the BMI of the deceased, by regard to service and clinical files. The statement is reproduced as follows:
DATE WEIGHT (Kgs) AGREED
BMI19 June 1969 78.02 24.08 7 September 1970 83.91 24.78 2 November 1970 83.46 24.65 18 January 1971 86.18 25.45 14 April 1976 107.5 31.41 21 June 1976 107.95 31.54 24 May 1977 98 28.63 25 June 1980 85 24.84 17 April 1984 93.5 27.32 18 May 1987 102.5 30.28 1 March 1988 104 30.72 20 June 1988 102 30.13 12 July 1991 99 29.24 27 July 1992 101 30.00 16 September 1992 101 30.16
6. The parties agreed that the clinical onset of IHD was late 1992, when the deceased presented at a hospital in Queensland with a heart attack. Upon the SoP existing at the date of the hearing (No 90 of 2007) and by regard to the table above, the applicant cannot demonstrate that her husband was obese for at least five years within 15 years before 1992, having regard the BMI recorded between 24 May 1977 and 17 April 1984 and again on 12 July 1991. However, the applicant can demonstrate her husband’s obesity for at least two years within a 15 year period before the clinical onset of IHD by reference to the former instrument (No 54 of 2003) having regard to the BMI between 18 May 1987and 20 June 1989 and between 27 July 1992 and 16 September 1992.
7. Satisfaction if at all, if either factor within the SOPs, can only be achieved, on the probabilities, if assumptions are made. This is hardly a satisfactory basis to make findings, but no other basis is possible, when the BMI, as calculated, is referable only to the dates as found at paragraph 5 earlier.
8. For example, sometime between 17 April 1984 and 18 May 1987, the weight of the deceased increased. But it is not known when his weight increased to a level which would have produced a BMI in excess of 30. All that can be said, with certainty, is that it was sometime before 18 May 1987 and subject to when that occurred, it may be that a period of five years of a BMI in excess of 30 would be achieved and the applicable factor in the current Statement of Principle would be satisfied. Equally, the requirement, by statute, to make findings by regard to rigid criteria could produce an unfair outcome (and not something that should be confronted by widows of veterans). For example, but for the variation in the deceased weight, of one kilogram, between 20 June 1989 and 27 July 1992, he would have had a BMI in excess of 30, for a period in excess of five years before the clinical onset of IHD.
9. In making the observations above and the findings below I have interpreted the reference in the factors to the period of obesity to be a continuous period as opposed to a cumulative period. The words a period suggest an unbroken or single length of time.
10. I am satisfied the BMI (as calculated) existed with certainty on 18 May 1987 and 20 June 1989. Between those dates, there was a period of two years and it was a period within 15 years of the clinical onset of IHD. The first Statement of Principle No 54 of 2003 existed within the assessment period and the applicant has an accrued vested right to rely on it (refer Keeley v Repatriation Commission (1999) FCA 1103; Williams v Repatriation Commission [2001] FCA 601; Repatriation Commission v Gorton [2001] FCA 1194).
11. The issue remaining is whether the IHD, by reason of obesity, as defined, is connected with the circumstances of service of the deceased.
12. The applicant contended that her husband's weight decreased only in 1981 or 1982 when he was diagnosed with diabetes. His diet and eating habits were then significantly modified. From 1983 ‑ 84 his weight increased because he was unable to exercise and physical activity was severely reduced because of service related sporting injuries. Accordingly, his obesity was attributable to his service.
KIM ROBERTA GRAY
13. Mrs Gray gave evidence and adopted a statement completed by her as Exhibit A1.
14. She said she met her husband in 1983 when they were both enlisted in the army. They married in 1984.
15. When she met her husband he was playing football authorised by his commanding officer. Games were played every Wednesday afternoon and training occurred on two occasions per week. In summer her husband played cricket on Wednesdays and during lunchtimes daily and training was scheduled for one or two occasions per week. She said her husband was also engaged in other sports comprising of touch football, waterskiing and golf. He complied with the fitness regime prescribed by the army which required him to be fit which was achieved by running a defined distance within a defined time and a measured number of sit ups. His fitness would be assessed once per annum by a PT instructor and enlisted persons were required to pass, failing which they would be required to repeat the assessment. Failing on a second occasion would cause the person to be discharged.
16. Mrs Gray said that her husband suffered a serious ankle injury in about 1984 which severely restricted his activities and it was an injury for which he never fully recovered. She recalled that for about six weeks prior to their marriage her husband’s lower left leg was in plaster which was removed on the day before the wedding. Thereafter her husband attempted physical activity but his foot swelled, his shoe would not fit and he was then required to either strap it or elevate it. The swelling of the foot occurred even if he was walking around the block. She said that her husband attempted to play sport but if, for example, he played football, he would do so only with his foot and ankle strapped, he would be on the field for about 10 minutes only, he would occupy a position where little running would be required and inevitably he would be retired to the bench and an ice pack would be applied. Mrs Gray said that her husband played football until about 1986 and cricket until about 1985. Touch football was played mainly at lunchtimes and was then played until about 1987. He ceased to play cricket because he was unable to run, either as a batsman or in the field. He rode a push bike to the Bandiana base, from his home, a distance of approximately 7kms, daily, but not subsequent to the ankle injury (although in cross examination she said he rode his bike to the base until 1986). His leg injury was acknowledged by the army and he was exempted from mandatory physical activities but was required to exercise at his own pace. The applicant acknowledged a medical assessment of 1 August 1986 at p132 of the service medical records (ex R1) that her husband was often able to run 5‑10kms. She said he would attempt to run, those distances, but only when the ankle was strapped. (It is noted, in fairness, that the medical officer also recorded that activity produced posterial and lateral pain and it was suggested that running should be reduced in favour of cycling and swimming).
17. When the applicant and her husband were married he was a Sergeant Major at Bandiana engaged in training of students. He served at Bandiana until about 1987 and thereafter he was transferred to a number of locations including Melbourne, Bendigo and Queensland until 1992 when he was discharged. Training of students involved classroom activities with him principally standing.
18. In about 1981 or 1982 Mrs Gray said that her husband was diagnosed with Type 1 diabetes. Thereafter she said that he was required to severely modify his diet by consuming six small meals per day and was conscious of carbohydrate intake. He was also self administering insulin. She said that he was always in control of his diabetes and during enlistment he did not vary his diabetic diet but there were some occasions, after discharge in 1992, when he would snack by eating fruit. Mrs Gray explained that the reduction in her husband's weight, evident by the reading at 12 July 1981, probably occurred because in that year his father died, another child was born and her husband then attempted to become fitter and healthier. She recalled that she and her husband would walk, daily, over short distances, despite him having the presence of pain and swelling in his lower left leg. An entry in the Maroondah Hospital records of 6 May 1997, appearing to record the deceased walking 5 kms daily was explained by the applicant as him walking for 5 minutes daily, over a distance of less than one kilometre.
19. The applicant was asked to comment on a report (Exhibit R3) of a doctor (the name of whom is unknown) who recorded at 28 January 1997, that her husband generally maintains a high level of physical activity. She disagreed with that description and said the physical activity undertaken by him was walking and coaching junior basketball in about 1996 or 1997. She said her husband liked to think he was fit. In basketball training he was engaged only with teaching children how to throw a ball, some tactics and position them on court. He did not play the sport. She was also asked to comment on a questionnaire completed by him within the T-documents (p 168) where he recorded that he was able to walk two flights of stairs. She said that would depend on the number of steps within each flight and then, it would be undertaken slowly. She recalled he was unable to climb stairs when they attended the MCG.
20. The applicant said that when her husband was away from base, on recruitment postings he would play golf. She said that would occur on three or four occasions per annum. She presumed that he played 18 holes but she had no knowledge of the exact number. She also assumed that he used a golf cart or buggy.
conclusion and reasons for decision
21. The entitlement of the applicant to pension or benefit under the Act is found at s 70(5)(a) which provides that the death of a member of the Forces is taken to be defence caused if it arose out of or was attributable to any defence service of the member. Interpreting that section also requires regard to s 5Q(1A), s 68(1) and s 69, none of which require analysis save that s 69 provides that it applies to members of the Defence Force who served continuously from 7 December 1972, the consequence of which is service prior to that date is not regarded as relevant defence service.
22. The critical words which compel consideration in this application are those found at s 70(5)(a) namely arose out of, or was attributable to, . . .
23. Those words were most recently considered by the High Court in Roncevich v Repatriation Commission [2005] HCA 40 (Roncevich) where at [27] the majority of the Court decided that the words evidenced an intention on the part of the Parliament to give defence caused a broad meaning and certainly one not necessarily to be circumscribed by consideration such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
24. In Law v Repatriation Commission (1980) 29 ALR 64 Toohey J considered the words arose out of or was attributable to should not be interpreted as if meaning caused by and, having regard to the general purpose of the Act, he decided that the expression arising out of requires a less proximate relationship to the injury. He also decided, relying on the same Authority as did the High Court, namely; Walsh v Rother District Council (1978) 1 ALL ER 510 at 514 that the connection need not be of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient (at p72).
25. The decision of Toohey J was upheld by a Full Federal Court and ultimately by the High Court (refer Repatriation Commission v Law (1981) 36 ALR 411).
26. The applicant contended that the deceased endured an increase in his weight as a consequence of a diminution or elimination of physical activity by the injuries that arose out of his service (and which were conceded by the respondent) which in turn was responsible for his obesity.
27. In anticipation that the respondent would argue that the deceased was obese as indicated by the BMI readings on the two occasions in 1976 it was submitted that the deceased was not obese thereafter until 1987 which, relevantly, was the beginning of a period of approximately five years prior to the clinical onset of IHD thereby satisfying the requisite qualifying period under the SOP in force at the date of this review. It was submitted that prior recordings of obesity was an irrelevance and the focus should be on whether the subsequent increase in the deceased's weight which caused him to be obese as defined, was attributable to, or arose out of, his defence service.
28. Mr Rudge on behalf of the respondent contended that the deceased was overweight within a few years of his enlistment and by 1976 he was then obese and was then playing football. He contended that there was no relationship on the evidence between weight gain and an inability to exercise. It was noted that at or about the time that the deceased was diagnosed with diabetes, he presented with a history of having lost between four and six stone in weight yet despite commencing a diabetic diet, which on the evidence was strictly followed, the weight of the deceased progressively increased and he returned to the weight recorded shortly after his enlistment. It therefore followed on this analysis that the deceased returned to his usual weight range (Trans. p45), that there was in fact no change in his weight, that it was difficult to relate the increase in weight to his ankle injury, he became obese by reason of the BMI recordings in 1976 when he was active and playing football and subsequent to the major injury in 1984, he was able to continue to exercise but without running.
29. On balance it was contended that the obesity of the deceased was not caused by his defence service (p76). Such a proposition might succeed if this review involved consideration of whether there was a reasonable hypothesis but the contention of the applicant had to be found on the balance of probabilities which, on the evidence it was submitted could not be established.
30. Widows who bring applications are often disadvantaged, no less in the present application. The best witness (the deceased) is not able to give evidence and explain many issues that emerge. Often widows' applications are made many years after relevant events when witnesses cannot be located, when documentation is sparse and when memories are poor. Review often involves reconstruction of events and making assumptions.
31. The evidence from the applicant and the service medical records indicate that the deceased was a person who in addition to the compulsory requirement to meet a designated level of fitness also engaged in a number of team sports. He was also frequently injured.
32. The service medical records indicate (between pages 7‑10) that between 16 August 1971 and 27 May 1974 there were five attendances for physical injuries arising out of football and other sporting activities, those injuries being to his left knee, his back, his right ankle, his right knee, and a rib fracture. At enlistment the deceased (refer BMI recordings at paragraph 5 earlier – which I adopt for the purposes of this analysis and these proceedings) had a BMI of 24.08. The first recording of a BMI in excess of 30 was 14 April 1976. Having regard to his BMI at 18 January 1971 (25.45) there would appear to be a progressive increase in weight until 14 April 1976.
33. On the service medical records it was true as was asserted by the respondent, that in 1976 when there were two recordings of a BMI greater than 30, the deceased was engaged in sporting activities, as evident by an attendance for medical treatment on 6 June 1976 with a complaint of foot injury arising out of playing football. On the evidence of the applicant it is likely during the summer months immediately before 1976 and during 1976, that the deceased would have been playing cricket.
34. It is noted that a medical board examination record found at page 22 of the service medical records record at 15 April 1976 (when he was then 107.5kgs) that he is obese. Just over. + 20% above acceptable limit. On 14 April 1976 (p23) the deceased was directed to attend a regimental aid post weekly for weight and diet supervision with the comment that he was to remove weight by dieting. It is assumed that the deceased did maintain a diet with the intention of weight loss because in the following year at 24 May 1977 his weight was then recorded at 98kgs being a weight loss of 9.5kgs over a period of 13 months subsequent to 21 June 1976.
35. The service medical records also indicate that after 1977 the deceased continued to play sport as evident by his attendances for treatment of his right and left ankles on three occasions between 3 April 1977 and 6 April 1978 found at pages 31, 32 and 38 of the service medical documents.
36. Thereafter there is no attendance for treatment of a physical injury until 11 July 1982 but intervening on 21 April 1980 is the first attendance of the deceased for treatment of a condition which was then, or shortly thereafter, diagnosed as diabetes (refer pages 51, 59 and 60). Page 51 records an attendance on 28 April 1980 with a history of a weight loss of four stone. Page 59 records a history of 3/18 history of weight loss approximate 4 stone. Page 60 records a three month history of weight loss (without a recording of the extent of loss). At page 82 is a report of 31 July 1981 addressed to the deceased's general practitioner referring to the diagnoses of diabetes about 14 months ago, commencing treatment by diet and over a period of months he had lost about 6 stone in weight.
37. The histories recorded in the above pages subsequent to the diagnoses of diabetes are difficult to reconcile against the documented recordings of the deceased's weight and the agreed calculations of his BMI. The history of four stone weight loss at 21 April 1980 would suggest, by the language adopted, that the loss occurred before that date. Four stone in weight converts to 25.4kgs. In June 1980 the deceased was recorded as weighing 85kgs but the history at page 51 does not record the period of time over which the four stone (25.4kgs) of weight was lost. The history at page 59 is also of no assistance. The history at page 60 recorded on 14 May 1980 whilst recording a three month history of weight loss does not record the extent of loss. If it were assumed that the four stone of weight loss occurred during a three month period prior to 14 May 1980, it would suggest in early 1980 the deceased had a weight in the vicinity of 110kgs. The deceased's weight if it was at that level would certainly produce a BMI in excess of 30 and to have lost 25kgs over a period of three months would be outstanding but may be consistent with the onset of diabetes. The Table at paragraph 5 (earlier) does not support that conclusion. The history taken in the report of 31 July 1981 (p82) is perhaps ambiguous because it does not record when the deceased lost six stone in weight. On the one hand the reference to having been commenced on a diet would suggest that the weight was subsequently lost. However, the words over a period of months he had lost . . . might suggest that the loss occurred before diagnosis. The author of that report was not called to give evidence.
38. I think however that it can safely be assumed that at or about the time that the deceased was diagnosed with diabetes, he had lost or did lose a considerable amount of weight. It can be found, as a fact, on the documentation and on the evidence of the applicant that the deceased, subsequent to diagnosis, was placed on to a diabetic diet with which he complied.
39. The circumstances of the deceased with respect to his weight, his diets and the circumstances surrounding the diagnosis of diabetes can only be identified by reference to the documents lodged in these proceedings. The applicant did not meet her husband until 1982 and she has no knowledge of his previous circumstances. She was the only person who gave evidence in these proceedings.
40. Whilst it would appear that the deceased did lose weight immediately before or subsequent to the diagnosis of diabetes, there was an increase in his weight because at 17 April 1984 he was found to be 93.5kgs whereas at 25 June 1980 he was found to be 85kgs. However, it is not known whether there was a slow progressive increase in weight after 25 June 1980 (there not being any evidence of the weight of the deceased in the intervening years). However, in those years, the deceased did participate in sport having regard to the evidence (refer earlier) of the applicant and to the service medical records at page 86 and 88 where on 11 July 1982 and 21 July 1983 respectively he presented with a complaint of right ankle injury, the first presentation being associated with playing football. The second presentation caused the medical officer to query whether the deceased then had evidence of osteoarthritis.
41. On 28 May 1984 the deceased suffered what would appear to be the most significant right ankle injury that he experienced. Page 92 of the service medical records indicate that he presented on that date by reason of the right ankle having been injured in a game of volleyball. Subsequent pages record that he was placed in a plaster cast and used crutches. It is noted that the plaster cast was removed on 2 July 1984 which is consistent with the applicant's memory that it was removed on the day before their wedding in the same month. Thereafter the deceased had extensive physiotherapy treatment but by October 1984 it was recorded that that treatment had been of little assistance and a medical officer recorded that there had been five or six previous attendances with complaint of right ankle injuries.
42. On 11 March 1986 and 19 June 1986, the deceased attended for treatment of right foot and ankle pain, the first occasion being associated with participating in a drill and the second occasion being associated with walking. It is worth noting at this stage – consistent also with the evidence of the applicant – that the deceased apparently ceased playing football in 1986 and playing cricket in 1985 because after 1984 there are no attendances for any injuries associated with playing sport which, having regard to the medical history of the deceased, is quite remarkable because most of his previous attendances back to 1971 with physical injuries were associated with competitive team based sporting activity.
43. By 18 May 1987 the deceased's weight had risen to 102.5kgs being an increase of 9kgs above the weight that was measured in April 1984 being the month before the volleyball incident. Whilst it would appear that the deceased did attempt to run, consistent with the evidence of the applicant, he did present on 22 August 1986 with a complaint of chronic ankle pain and the attending medical officer has recorded that he should stop jogging. On 6 April 1987 his right ankle was reviewed and the notes record that he was fit for restricted duties being PT at own pace – no running.
44. On 14 February 1989 the notes record that the deceased cannot run – will need downgrading at next med board and a Medical Board examination of 20 June 1989 (p127) records (by reason of the right ankle injury) that the deceased was to be graded as permanent incapacity – no running at forced pace – own pace only. At page 134 on a date which appears to be (photocopy is poor) 6 May 1991 the medical officer recorded that the deceased has permanent restriction but is anxious to attempt PTT run – he is not to even attempt same. At 19 June 1992 the deceased was found to have an unstable right ankle with osteoarthritis and on 6 August 1992 (p150), consistent with the notes on Medical Board examination of the same day (p148), the deceased was restricted by reason of his lower leg injury and it was recorded PT own pace; not fit to run; BFT run exempt.
45. The medical records summarised above indicate that whilst the deceased did present on a number of occasions before 1984 with ankle injuries (predominantly the right ankle) he did suffer a significant injury or exacerbation following a game of volleyball on 28 May 1984 and thereafter there was a progressive reduction in physical activity culminating in him being exempted from compulsory fitness assessments, being permitted to exercise at his own pace and with specific imposition of a prohibition from running. Coinciding with that history subsequent to 1984 is a progressive increase in the weight of the deceased but for a 1kg variation between 20 June 1989 and 27 July 1992. Subject to the recorded weight of 99kgs at 12 July 1991 the deceased, at the latest, at 18 May 1987 (and probably earlier) had a BMI in excess of 30. Significantly also I think, is that subsequently to 17 April 1984 and perhaps more precisely subsequent to the ankle injury following the volleyball incident in May, the weight of the deceased did increase.
46. The SOP No 54 of 2003 defines obesity as an increase in body weight by way of fat accumulation which results in a BMI of 30 or greater. There is no dispute on the agreed calculations between the parties of the deceased having a BMI of 30 or greater (that is, he was obese) within the period of at least two years within 15 years before the clinical onset of IHD. That period of two years commenced at the latest on 18 May 1987 and ended, at the earliest on 20 June 1989.
47. The definition does not record the point in time from when an increase in body weight commenced. I doubt that it would be from the date of enlistment because there would need to be some event or occurrence during the period of defence service in order to establish the connection with service. In my view the increase in body weight must be from the date of an event or an occurrence in service which of itself was connected with the service. Relevantly, that event in my view was the occurrence of the right ankle injury in 1984, suffered during the game of volleyball, in service. From that date and by reference to the agreed calculations earlier, there was a demonstrable increase in body weight which occurred by reason of the inability and ultimate preclusion of the deceased from undertaking exercise and activity at a level previously undertaken. It is not without coincidence in my view that but for the BMI readings in 1976 the deceased did participate actively in sport but did not ever have a BMI greater than 30.
48. There was no evidence in these proceedings of anything which might have caused the deceased's weight to increase except for his inability to participate in sport and exercise. After 1986 the deceased had ceased running and playing cricket and football. He no longer rode his pushbike, walking was of limited duration and he was exempted from compulsory PT assessments. He remained vigilant in his adherence to the diabetic diet.
49. Weight gain in the deceased or any other person might be by a multitude of reasons. None was advanced in these proceedings other than the inability to exercise and engage in sporting activities.
50. During the relevant two year period as found within the SOP, the deceased did not have a body weight which was within his usual weight range as submitted. Indeed his usual weight range after 1984 was, excepting the two recordings in 1976 far in excess of his usual weight range. It would appear on the documented recordings of the deceased's weight that he was, after enlistment, overweight. Whilst that concept is not defined by the SOP, it is a phenomena found within the WHO publication of the BMI classification which records that a person is overweight if they have a BMI greater than 25 but less than 30. That the deceased may have been overweight is in my view an irrelevance when having to consider whether at relevant times he was in fact obese as the SOP determines to be the relevant phenomena to connect it with IHD which was the certified cause of death.
51. It was contended on behalf of the respondent that the obesity of the deceased was not caused by his defence service. On the authorities referred to earlier, the obesity does not need to be caused by service (refer Law v Repatriation at p72) The expression arising out of requires a less proximate relationship, a wider interpretation is permitted and the connection need not be sole, dominant, direct or proximate. A contributory causal connection is quite sufficient (Law at p72).
52. Having regard to the foregoing I am satisfied on the balance of probabilities that the deceased was a member of the Forces and was engaged after 7 December 1972 in defence service. In or about 1984 he suffered an injury to his right ankle or an exacerbation of a pre-exiting right ankle injury which in turn was responsible for a progressive reduction in his ability to participate in sport and exercise. As a consequence he became obese as defined (refer Table at paragraph 5 earlier). He was obese for at least two years within 15 years immediately before the clinical onset of IHD which was the certified cause of his death.
53. Having regard to the decisions in Roncevich and Law (refer earlier), the death of the deceased arose out of, or was attributable to, defence service. All necessary links in the chain of connection between service and death in my view have been satisfied. It follows therefore that the decision under review should be set aside and in substitution there will be a decision that the death of the late Peter Brasier Francis Gray was defence‑caused.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney, Personal Assistant
Date of Hearing 8 July 2009
Date of Decision 28 October 2009
Counsel for the Applicant Judith Bornstein
Solicitor for the Applicant Julia Spina
Departmental Advocate Ken Rudge, Department of Veterans' Affairs
0
5
0