Patterson and Repatriation Commission
[2003] AATA 1255
•12 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/107
VETERANS' APPEALS DIVISION
)
Re JILLIAN PATTERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date12 December 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and decides that the late Stewart Patterson's hypertension was a service-related disability and that the circumstances of his death were war-caused. The Tribunal decides that Jillian Patterson is entitled to receive a War Widows’ pension with effect from 23 February 1999.
(Sgd) EK Christie
Member
CATCHWORDS
VETERANS' AFFAIRS – benefits and entitlements - war widows’ pension - ischaemic heart disease - hypertension and salt consumption - whether Statement of Principles satisfied - cerebrovascular accident - reasonable hypothesis established - related to service - scientific inferences and causation – decision set aside
Veterans' Entitlements Act 1986 ss 8, 119(1)(h), 120, 120A
Re Beitz and Repatriation Commission [2002] AATA 987
Caswell v Powell Duffryn Associates Collieries [1939] All ER 722
Connors v Repatriation Commission [2000] FCA 783
East v Repatriation Commission (1987) 74 ALR 518
Kattenberg v Repatriation Commission [2002] FCA 412
Mason v Repatriation commission [2000] FCA 1409
Re Paint and Repatriation Commission [2000] AATA 709
Repatriation Commission v Bey (1997) 47 ALD 481
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v McKenna (1998) 28 AAR 7
Re Ross and Repatriation Commission [2002] AATA 497
Re Cummins and Repatriation Commission [2002] AATA 1142REASONS FOR DECISION
12 December 2003 Dr EK Christie, Member 1. This is an application by Jillian Patterson to review a decision of the Veterans’ Review Board (the “VRB”) made on 10 December 2001. The VRB rejected a claim lodged by Mrs Patterson for a pension in respect of the death of her late husband, the late veteran, on the basis that his death was not causally related to service.
2. At the hearing, Jillian Patterson was represented by Mr A Harding of Counsel. Mr J Kelly, a Departmental Advocate represented the Repatriation Commission.
3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
4. The late veteran, Stewart Patterson, was born on 26 June 1924 and served with the Royal Australian Navy from 7 August 1941 until 14 March 1946.
5. Mr Patterson died on 20 December 1998 with the death certified as:
(a) Myocardial Infarction;
(b) Ischaemic Heart Disease; and
(c)Atherosclerotic Vascular Disease to Carcinomatosis from Prostate Carcinoma.
6. The late veteran has the following accepted “Service Related Disability”:
(a) Malignant melanoma of the skin of various sites.
7. Jillian Patterson and the late veteran were married in 1951. She had known him for two to three years prior to their marriage.
8. At the commencement, the parties acknowledged that there was no dispute as to the time of clinical onset of hypertension in the late veteran. The respondent accepted 1976 as the relevant date (see notation by Dr B McKay T4, Folio 53).
Issues to the Decided
9. The primary issue for the Tribunal to decide was whether the late Mr Patterson’s hypertension was a war-caused disease: specifically, the connection between operational service, salt intake, hypertension and ischaemic heart disease.
Legal Framework: Whether Reasonable Hypothesis
10. Despite the significant modifications to section 120 of the Veterans'Entitlements Act 1986 (“the Act”) by the issue of Statements of Principles by the Repatriation Medical Authority and the associated amendments to the legislation (refer particularly section 120A), an "hypothesis" which is "reasonable" needs to be "raised".
11. With the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193, the Court (at 206) recorded the four stages as follows:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
12. The plain meaning of "hypothesis" was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
"A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption."
13. In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court said (at 534):
"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
14. In reaching this conclusion, the Court relied on an unreported Veterans' Review Board decision in Stacey decided on 26 June 1985 where it was stated -
"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. It is the opinion of the Board to be reasonable, a hypothesis must possess some degree of acceptability or credibility; it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the board, we think it must find some support in that material; that is the material must point to and not merely leave open a hypothesis as a reasonable hypothesis."
15. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges summarised the historical development of the concept of "reasonable hypothesis". At page 490, the Court said:
"Any doubt that attends the status of East as a correct exposition of the law relating to s.120(3) should be dispelled."
16. The Court also concluded (at page 490):
"A reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."
17. In Connors v Repatriation Commission [2000] FCA 783 at paragraph 14, Kenny J rejected a submission made by Counsel that "no individual part, or parts of the hypothesis need be supported by facts raised in or by evidence". Her Honour decided:
"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material.....If the material does raise the hypothesis, then the decision maker must determine whether it is reasonable."
18. Her Honour then relied on a passage from the decision of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 where his Honour said:
"For the purposes of s.120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles, is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated the hypothesis has to point to a connection, which starts with a disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and if need be by more than one Statement of Principles."
Evaluation of the Factual Evidence
Evidence of Jillian Patterson, the Applicant
19. Ms Patterson described the use of salt by her late husband from the time they had met. She had met her late husband some time in 1948. They were married in 1951.
20. She said that her late husband told her of being issued with salt tablets while in the Navy, supposedly to replace the salt lost through perspiration in the tropics. She stated that he used salt liberally on his food and that this intake of salt continued as far as she could remember until 1976. At this time, he was advised, whilst donating blood to the Red Cross, to consult a doctor. His hypertension was diagnosed following the medical consultation he had. The late veteran was then advised to omit salt from his diet. Consequently, he changed his salt intake dramatically – a little was used in cooking, but he no longer sprinkled salt on his food. She said that her late husband told her that he missed salt in his food but was aware of the medical need to omit salt from his diet.
21. Prior to 1976 and over the entire time she knew her late husband, she said that he used salt in his cooking and that he would also add salt to a prepared meal with “extra sprinkled on the side of his plate” to dip food into if there was not enough salt in the meal. She said that he used salt liberally for all meals and even ate lettuce sprinkled with salt.
22. Mrs Patterson said that her late husband’s practice after the war, from the time she knew him, was that he believed he needed salt to replace salt lost through perspiration. She said that they did a lot of bushwalking together and her late husband used to take one to two tablets, orally, washed down with water. In addition, her late husband was very active working around the home and, when he perspired, he always took salt tablets.
23. During cross-examination by Mr Kelly, Mrs Patterson gave the following responses:
(a)that she had meals occasionally with the family of her late husband over the period 1948 – 1951 and observed that he used “a lot of salt at the table”; and
(b)when shown a vial containing a measured amount of 12g of salt by Mr Kelly, she said that her late husband used “about that” amount each day. The Tribunal had the vial contents weighed subsequently by an independent source (a practising pharmacist) to corroborate the 12g of salt contained in the vial.
Evidence of Gwendolyn Patterson, sister of the late veteran
24. Miss Patterson said that on his return from the war her brother (the late veteran) would put salt on far more things than what he did before the war. She described his salt habits on his return from war, compared with his pre-war habits, as “excessive” and that after the war “he was a bit of an addict”.
25. She said that on his return from the war, their mother was also aware of his new-found salt eating habit. Their mother had concerns over her late brother’s excessive use of salt as he would sprinkle further salt on to his cooked meals without even testing it first to see if it was necessary.
26. Miss Patterson said that her late brother told her that he had needed to take salt tablets during the war as they lived in the tropics and they were quite active and so sweated a lot. Her late brother used to tell her when it was very hot and she was perspiring, that she should take salt tablets.
27. Miss Patterson said that she had made the following observations on her brother’s salt use prior to war service and on his return home after the war:
(a)that he was continually adding extra salt on returning home. Prior to the war she had not noticed that he had used salt to excess;
(b)prior to the war, although salt was used in cooking, and salt was always on the table if needed, she had not noticed her late brother reaching out for the salt as much as he did on his return home.
28. During cross-examination, Miss Patterson was shown the 12g of salt in the vial by Mr Kelly and gave the following responses:
(a)prior to the war he would not have consumed that much salt with his meals saying: “No. I don’t think so, no that’s a lot of salt”;
(b)after he returned home from service she noticed a change in his salt habits saying that it “seemed to take a while for him to use salt more than anyone else”;
(c)she agreed that he was still taking excessive salt with his meals after he had married;
(d)prior to war service, she said that the amount of salt he consumed “if anything would be less than that [the 12g vial]”; and
(e)post-war he would have used about that much salt [in the 12g vial] saying that “He always added salt. Never missed”.
Evidence of Justin Kenardy (PhD), Associate Professor in Clinical Psychology
29. Dr Kenardy gave evidence on behalf of the Repatriation Commission. His research interests includes the psychology of eating. He had prepared a consultancy report for the hearing titled “Background Report: Veterans’ Affairs Consultancy” (Exhibit R2).
30. Dr Kenardy stated that salt consumption did not fit into an addiction model. Salt consumption was not driven by psychological need but by personal preference.
31. The research studies he had reviewed in his report, and which were available at the time, suggested that 24g of salt would have to be taken and tasted for a period of time (eg during service) in order to change the preference to 12g/d [the threshold amount under the SoP]. Later, during cross-examination, he stated that he could not recall whether any other further studies had been reported since he had prepared his opinion (Exhibit R2).
32. Dr Kenardy stated that when salt was mixed with other foods, difficulties arose because of the compounding effects of salt with other foods.
33. Dr Kenardy expressed the following opinion in relation to the ingestion of salt tablets and changes in preference:
(a)where the salt tablet was not tasted but swallowed with water, a lot of salt could be consumed this way but without any change in salt preference; and
(b)if the salt tablet was tasted before swallowing, then a change in preference would arise.
34. Under cross-examination by Mr Harding, Dr Kenardy was referred to the following summary of his evidence on the same consultancy report that he had prepared (Exhibit R2) in response to questions raised by the Tribunal in a similar fact case: Re Beitz and Repatriation Commission [2002] AATA 987. Dr Kenardy acknowledged the following responses that he had given:
“39. Dr Kenardy agreed with the Tribunal’s proposition that the research studies that he reviewed in his consultancy could not be directly applied to Mr Beitz’ case – but only indirectly by the method of inference.
40. Dr Kenardy then agreed with the Tribunal proposition that in order to strengthen the inference of the association between salt intake and hypertension in Mr Beitz’ case, the four following steps would need to be adhered to:
· Step 1: Clinical examination, history of salt intake by Mr Beitz; history of hypertension;
· Step 2: Animal studies under very closely controlled conditions to characterise the nature of the association;
· Step 3: Research studies into the association involving individuals or small groups to establish some principles;
· Step 4: Research studies with large groups, or even the community, to ensure the wider application of the findings in the small group studies [in Step 3] to the community at large.
41.When asked by the Tribunal whether his consultancy report only focussed on Steps 2, 3, Dr Kenardy stated, ‘Yes, that would be correct.’
42.Finally, Dr Kenardy acknowledged that the conclusions in his consultancy report would have limitations with respect to a wider extrapolation to the community as well as their application to strengthening the inference of the association in Mr Beitz’ individual situation.”
Contentions and Submissions of the Parties
35. Mr Harding’s submissions can be summarised as follows:
(a)Prior to the Naval service, the late veteran’s salt habit was not excessive. He relied on the evidence of Gwendolyn Patterson;
(b)Whilst in the service, the late veteran was induced by Naval policy for seamen serving in the tropics to take salt tablets (Exhibit R3);
(c)Relying on the evidence of both Jillian and Gwendolyn Patterson, on his discharge from the Navy, the late veteran maintained his service habits of salt intake and used it excessively. Salt intake declined sharply in 1976 when he was diagnosed with hypertension;
(d)The late veteran satisfied the SoP for Hypertension (No 31 of 2001), Factor 5(c) as he had ingested at least 12g salt supplement per day during an average period of at least 6 months immediately before the clinical onset of hypertension;
(e)In addition, the late veteran satisfied the SoP for Ischaemic Heart Disease (No 38 of 1999), Factor 5(a) as hypertension was present before the clinical onset of Ischaemic Heart Disease, the stated cause of death; and
(f)Consequently, the death of the late veteran was war-caused as there was a connection between the service induced salt habit, hypertension and his death from ischaemic heart disease.
36. Mr Kelly’s submissions can be summarised as follows:
(a)An acknowledgment that RAN policy during World War II was to give half a teaspoon of salt twice daily to all members in hot locations (Exhibit R3);
(b)That the salt consumed under RAN policy was either in a saline form or as a salt tablet. Reference was made to the following Naval records:
(i)Report of the Senior Medical Officer, HMAS Australia 3 November 1943:
“A decision was made then to institute the practise of every officer and man in the Ship taking, as a precautionary measure, a half teaspoonful of salt in water twice daily.”
(ii) A Medical Store Demand from the Medical Officer:
“Forwarded this day is a demand for Medical Stores, dated 23rd January, 1943
In this demand sodium Chloride Tablets grs 10 have been demanded. This item is not in the Scale of Medical Stores, but it is felt that taking Salt in this form would be preferable to the present system of drinking Saline solution, as carried out by the Engine Room Staff.”
(iii) Department of Navy Minute 527/211/1637, 18 February 1943:
“I concur in the necessity of the issue of salt to counteract the effects of heat exhaustion. During my recent visit to the North I found that the taking of extra quantities of salt was a regular habit by many of the personnel. In quite a number of instances bowls containing salt tablets were placed on the tables during meal times and Officers and men were encouraged to consume salt to counteract heat exhaustion.
2.I consider that extra quantities of salt consumed as a result of any order which may be issued should be regarded as a Victualling Extra Issue.”
(c)That, based on Dr Kenardy’s consultancy report (Exhibit R2), extra salt ingested in saline form or in tablet form did not lead to an increased preference for crystalline salt. Ingestion of salt tablets without tasting it would not change preference. Whilst consumption of crystalline salt would change preference, there was no evidence of crystalline salt intake during the late veteran’s service. Hedonic preference was based on taste not physiological need.
(d)That there was uncertainty from the oral evidence of the late veteran’s wife and his sister, whether the 12g threshold imposed for daily salt intake by the SoP had been met, in the post-service period;
(e)That based on Dr Kenardy’s report, the late veteran would have to ingest 12g of salt extra each day due to his service; and
(f)That the late veteran’s ingestion of salt and salt tablets was due to his own personal tastes and beliefs and that his death had no connection with his service in World War II.
Consideration of the Issues
37. The Tribunal has adopted the four stages in Repatriation Commission v Deledio considering whether the late Mr Patterson’s hypertension and ischaemic heart disease were “Service Related Disabilities”.
Whether the Material before the Tribunal points to an Hypothesis that Connects the Injury or Disease with the Circumstances of Service
38. The report of Dr McKay (Exhibit R1, folio 53) refers to the late Mr Patterson being treated for hypertension for some years before 1980. There was no dispute that the clinical onset of hypertension was 1976 (see paragraph 8 of these Reasons). The information and evidence before the Tribunal from World War II Naval records and his family members indicates that the late Mr Patterson ingested salt tablets/saline during service as well as continuing to consume large amounts of salt, daily, in the post-operational service period.
39. Accordingly, the Tribunal considers that there is sufficient material before the Tribunal that points to an hypothesis that connects hypertension, ischaemic heart disease and the death of the late veteran from a myocardial infarct with the circumstances of his operational service. Specifically, the intake of salt during operational service.
40. It was common ground between the parties that the only relevant risk factor for ischaemic heart disease and cerebrovascular accident was hypertension.
Whether a SoP is in Force
41. The following SoPs, in force, are relevant to this application for review:
(a)Ischaemic Heart Disease: Instrument No 38 of 1999; and
(b)Hypertension: Instrument No 31 of 2001 that revoked Instrument No 25 of 1999.
Whether the Hypothesis raised is a Reasonable One
42. The Tribunal concludes that the hypothesis identified in paragraph 39 of this decision is reasonable because, pursuant to subsection 120(3) of the Act, the following factors are contained within the SoPs and are consistent with the template or factor:
(i)SoP No 38 of 1999: “Ischaemic Heart Disease”.. Factor 5 states:
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or… (emphasis added)
(ii)SoP No 31 of 2001: “Hypertension”. Factor 5(c) states:
“5(c)Ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension” (emphasis added)
Whether the Factual Evidence before the Tribunal discharges the Legal Standard of Proof
43. The Tribunal has carefully considered all of the evidence and information before it and turns to subsection 120(1) of the Act to decide whether or not it can accept sufficient of the facts as to disprove the hypothesis beyond reasonable doubt.
44. The first issue for the Tribunal to consider is whether the late Mr Patterson’s ischaemic heart disease condition satisfies Factor 5(a) of the SoP No 38 of 1999.
45. As stated, there is no dispute between the parties that the clinical onset of hypertension is 1976 and that this date precedes the clinical onset of ischaemic heart disease (see report of Dr B McKay, T4, Folio 34, 5 February 1999).
46. However, for Factor 5(a) of SoP No 38 of 1999 (“Ischaemic Heart Disease”) to be satisfied, the Tribunal must determine whether the “Hypertension SoP” is also satisfied. Specifically, the contribution of salt consumption during the late Mr Patterson’s operational service to his post-service conditions of hypertension and ischaemic heart disease, in order to determine whether there is any causal contribution of operational service to these medical conditions. The Tribunal considers that in addition to the physiological and psychological effects that determine salt consumption in humans (see Exhibit R2 at page 1), there are also factors special to war service.
47. Accordingly, the next issue for the Tribunal to consider is whether Factor 5(c) of the SoP No 31 of 2001 (“Hypertension”) is satisfied. In particular, with specific reference to salt intake, whether there is a connection between hypertension and operational service.
48. The effects of any change in salt intake by the late Mr Patterson during operational service, relative to his subsequent post-war behaviour with respect to salt intake becomes a central issue. The resolution of this issue is a function of:
(a)expert opinion on the effects of variations in salt consumption on preference levels, and amount of salt consumed, over time;
(b)the patterns of salt intake over time. That is, prior to operational service, during operational service and for the post-operational service period – as can be adduced from the evidence before the Tribunal; and
(c)estimates of the amount of salt consumed daily, in the post-operative service period and specifically in the six month period immediately prior to the accurate determination of hypertension.
49. Because the Act is beneficial legislation, there is a requirement for reasonable certainty that a link does not exist before a claim can be rejected: Re Paint and Repatriation Commission [2000] AATA 709 at paragraph 59.
Evaluation of Expert Opinion on the Relationship between Changes in Salt consumption, Salt Preference Levels and Amount of Salt Consumed
50. The respondent has relied on the expert opinion of Dr Kenardy, in relation to his report (Exhibit R2) in this regard to support their contentions that Factor 5(c) was not satisfied. The respondent has relied on the Tribunal’s reasons for decision in evaluating the same consultancy report prepared by Dr Kenardy as tendered in Re Beitz and Repatriation Commission (supra) and Re Cummins and Repatriation Commission [2002] AATA 1142 - both similar fact cases. Dr Kenardy has conceded in his oral evidence that he is unaware whether there are any further research studies published following the completion of his report. In addition, there was no further expert evidence on the salt preference/salt consumption/amount of salt inter-relationships was given before the Tribunal, in this application for review.
51. Accordingly, against this factual background, the Tribunal does not have any reason to depart from the earlier findings it made in relation to Dr Kenardy’s consultancy report, as it made in Beitz’ case and Cummins’ case.
52. In Beitz (and Cummins) the Tribunal made the following findings:
“66. In deciding the weight that should be given to Dr Kenardy’s expert opinion, the Tribunal concludes that the following aspects of his evidence and conclusions expressed in his report, are relevant considerations:
(a)an acknowledgment by Dr Kenardy that his conclusions, based on the literature review contained in his consultancy report (Exhibit R2), could only be applied, indirectly, to the factual circumstances of Mr Beitz’ individual case by the scientific method of inference (para 39); and
(b)a further acknowledgment by Dr Kenardy that the conclusions contained in his consultancy report were derived from research work undertaken with laboratory animals and studies involving very small numbers of human subjects. Moreover, Dr Kenardy’s concession that there was scientific uncertainty extrapolating the findings of animal studies to humans (see paras 33, 36). In addition, Dr Kenardy’s concession, hat because of the small number of human subjects in the studies reviewed, that the conclusions in his consultancy report were ‘obviously limited in terms of its generalised ability to the broad population’ (see para 38).
67. Furthermore, Dr Kenardy also conceded that the conclusions contained in his consultancy report would have limitations with respect to their application to strengthening the inference of the association between salt intake and hypertension in Mr Beitz’ individual situation (see para 42).
68. Because of the above limitations in the consultancy report prepared by Dr Kenardy, the Tribunal concludes that it does not accept the conclusions of Dr Kenardy that are of specific relevance to this application for review. Specifically, the conclusions relating to the effects of increased/decreased consumption of salt on preference levels (see para 28) and in particular changes in salt preference relative to the proportion, and hence amounts, of salt actually consumed (see paras 28, 29, 30 and 34).
69. Furthermore, the Tribunal has considered the legal meaning attached to the evidentiary issue of “inference” in related to the scientific facts and conclusions in Dr Kenardy’s consultancy report.
70. The decision of LJ Wright in Caswell v Powell Duffryn Associated Collieries 3 [1939] All ER 722 at 733 is particularly relevant in relation to the weight to be placed on an inference:
“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish … but if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
71. Applying the reasoning in Caswell’s case to this application for review, the Tribunal finds that the limitations in Dr Kenardy’s conclusions contained in his consultancy report, that have been subject to the earlier findings in this decision, are such that the inference the respondent seeks does not apply to Mr Beitz’ individual situation. Specifically, there are no objective facts from which to infer other facts that apply to Mr Beitz’ individual situation that could lead to the following conclusions:
(a)that an increase in hedonic preference for salt during operational service would lead to a change in salt preference in the post-service period by only a proportional increase of 1/3 to ½ of the operational service intake; and
(b)that the effects of such a proportional change in preference would mean that the threshold requirement of salt intake of 12g/day would not be satisfied.
Accordingly, Dr Kenardy’s conclusions cannot be applied indirectly to Mr Beitz’ individual situation in these circumstances as any inference relied upon by the respondent is speculative because of the inherent, acknowledged limitations in the consultancy report and that have been subject to Tribunal findings.” (Tribunal emphasis)
53. Consequently, the Tribunal makes the same conclusions as to the weight to be given to Dr Kenardy’s expert report as applied in the Beitz and Cummins cases - as well as its application to a similar fact situation that arises in the late Mr Patterson’s circumstances.
Evaluation of Lay Evidence with respect to the Pattern of Salt Intake over Time
54. Next the Tribunal considers whether Factor 5(c) of SoP No 31 of 2001 (“Hypertension”) is satisfied, based on the lay evidence before the Tribunal with respect to the consumption of salt by the late Mr Patterson over time. In considering the lay evidence, the Tribunal has made some conclusions on the credibility of the witnesses giving their evidence. The Tribunal finds Jillian Patterson and Gwendolyn Patterson to be witnesses of truth and accepts their evidence in relation to the daily salt intake and habits of the late veteran at different stages in his life.
55. The only evidence of the late veteran’s salt intake prior to World War II service is the evidence of his sister, Gwendolyn Patterson. Her evidence was that after the war, the late veteran used salt “excessively” relative to his salt intake before the war. The Tribunal concludes that an analysis of her evidence indicates that his salt intake habits had significantly increased from pre-War relative to his post-war intake (paragraphs 25, 27, 28).
56. Next, the Tribunal must consider the evidence that relates to the late veteran’s World War II intake whilst serving in the Navy. From the Navy records [see paragraph 36(b)] it can be adduced that salt tablets and saline were freely available and routinely issued in order to implement Naval policy to offset ill-effects from heat. Moreover, educational awareness programmes and orders reinforced this need: for example, the Department of Navy Minute (18 February 1943) states:
“However, to be of any use it [common salt] must be an organised prophylactic measure, and one rigidly adhere to…
The means taken to put this measure into practise was simply education of the personnel as to its necessity, by promulgation in the daily orders by placing notices in every mess in the ship, and by word of mouth.”
57. In evaluating the evidence of salt intake following operational service, the Tribunal has made findings on the credibility of Jillian Patterson and Gwendolyn Patterson. The Tribunal has accepted Gwendolyn Patterson’s evidence that there was a substantial and significant change (“excessive”) in her late brother’s salt consumption following his return home compared with his pre-war salt intake and habits. Furthermore, the Tribunal accepts the evidence of them both in terms of the late veteran maintaining a high daily salt intake in the post-operational service up to 1976 when he was diagnosed with hypertension.
58. Given the above finding, the Tribunal accepts that the late Mr Patterson heavily added salt to food when cooking or eating meals throughout the post-operational service period, up until 1976.
Evaluation of Law Evidence on the Estimated Amount of Salt Intake immediately before the Clinical Onset of Hypertension
59. It is clear that unless the late veteran did ingest at least 12g of salt per day for a continuous period of six months, before the clinical onset, the application will fail.
60. Accordingly, the Tribunal considers the “threshold test” as imposed by SoP No 31 of 2001 in terms of the amount of salt ingested and the relevant time. That is, whether the late Mr Patterson “ingested at least 12g of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension (1976)”.
61. Because of the limitations in the conclusions contained in Dr Kenardy’s consultancy report, as subject to findings in this decision, the Tribunal finds that there is nothing in Dr Kenardy’s material that proves beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that the “threshold test” imposed for salt intake by Factor 5(c) of SoP No 31 of 2001 has not been satisfied.
62. Some visual appreciation of the quantity of salt was the method relied on at the hearing, in order to comprehend the evidence of Mrs Patterson and Miss Patterson in relation to the amount of salt ingested each day by the late veteran. A similar approach was adopted by the Tribunal, in exerting its inquisitorial powers, in Ross’ case.
63. In order to find, as a fact, whether the late Mr Patterson ingested at least 12g of salt – as added to food when cooking or eating – the Tribunal can do no more than to have regard to the sworn evidence of Mrs Patterson and Miss Patterson.
64. Given:
(i)the Tribunal’s findings as to the credibility of the evidence given by Jillian Patterson and Gwendolyn Patterson;
(ii)their knowledge of the late veteran’s daily intake of salt as added to food when cooking or eating (paragraphs 20, 21, 22 and 24, 25, 27); and
(iii)their estimate of the amount of this daily intake of salt by a visual comparison with measured quantities of 12g [paragraphs 23(b) and 28(d), (e)];
the Tribunal finds that the late Mr Patterson did ingest at least 12g of “salt supplements” per day throughout the post-service period up until 1976.
65. Given this finding, the Tribunal further concludes that the evidence of Mrs Patterson and Miss Patterson establishes that the late veteran continued to consume salt at this rate per day, within the six month period before the clinical onset of hypertension in 1976.
66. The Tribunal finds that the following findings prove beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that Factor 5(c) of SoP No 31 of 2001 has been satisfied:
(a)that the pattern of salt intake by the late Mr Patterson increased following Naval service because of exposure to “salt supplements” (salt tablets) being made freely available during operational service and because of Naval policy and orders;
(b)that this high salt intake continued after service, through salt added to food when cooking or eating, because of sensory or hedonic processes (through acquiring a taste for salt) that arose from the late veteran’s regular pattern of salt intake in the form of salt tablets during his service in the tropics;
(c)that objective, positive facts that establish the late veteran’s salt intake prior to service (paragraph 55), during service (paragraph 56) and following operational service (paragraphs 57, 58) allows an inference to establish an inference that the late veteran ingested salt tablets during operational service in a manner that would have changed his preference for salt;
(d)that the late veteran’s consumption of high amounts of “salt supplements” continued throughout the post-service period up until 1976 (paragraph 64); and
(e)that the daily pattern of intake and amount (12g/day) continued for a continuous period of at least six months before the clinical onset of hypertension in 1976 (paragraph 65).
67. Accordingly, based on these conclusions, the Tribunal finds that Factor 5(c) of SoP No 31 of 2001 is satisfied. The late Mr Patterson consumed at least 12g of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension in 1976.
Connection with Operational Service
68. In discussing the statutory framework with respect to SoPs and raising a “reasonable hypothesis” connecting a disease with the circumstances of service, Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412 stated:
“8. Section 196A of the Act establishes the Repatriation Medical Authority (“the Authority”). Section 196B is concerned with the functions of the Authority. Section 196B(2) provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles (“SoP”) in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors “must be related to service rendered by a person”, before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.
9. Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
‘(b) it arose out of, or was attributable to, that service; or…
(d)it was contributed to in a material degree by, or was aggravated by, that service;…
(f)in the case of a factor causing, or contributing to a disease-it would not have occurred…but for the rendering of that service by the person’.”
69. Later, Emmett J stated:
“42. An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that “factors must be related to any relevant service”. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
43. … Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service..” (emphasis added).
70. The Tribunal has applied the above reasoning and principles in its decision in Beitz and Cummins and to this application for review.
71. It follows, in the Tribunal’s view, that the late Mr Patterson acquired a taste for salt by reason of his operational service. Moreover, prior to operational service he consumed salt, but in substantially smaller quantities relative to consumption during the post-war service period. After operational service, the evidence of his family establishes that he continued to consume high amounts of “salt supplements” that were at least 12g per day throughout the post-service period up to 1976.
72. Each case must be considered on its merits. In this particular matter, for all of the above reasons, the Tribunal finds that the material before it proves, at the requisite standard of proof, for the purposes of subsection 120(1) of the Act, that the late Mr Patterson’s ischaemic heart disease was preceded by hypertension. In turn, the hypertension has been causally contributed to by an increased consumption of salt that would not have occurred but for his rendering operational service (emphasis added). The Tribunal concludes that as both the ischaemic heart disease and hypertension SoPs are satisfied, there are sufficient grounds for determining, at the requisite level of proof imposed by subsection 120(1), and in accordance with the legal framework outlined in this decision, that there is a connection between the late Mr Patterson’s hypertension, ischaemic heart disease and his operational service.
73. Therefore, for all of the above reasons, the Tribunal determines that the late Mr Patterson’s ischaemic heart disease was a “service-related disability”.
74. Insofar as the applications under review are concerned, with the acceptance of hypertension and the claim brought by Mrs Patterson for pension by reason of the death of Mr Patterson arising out of his myocardial infarction, the Tribunal is satisfied, at the requisite level of proof, that those decisions should be set aside. In substitution, decisions will be made that hypertension is a war-caused disability and that the circumstances of death were war-caused. Mrs Patterson is therefore entitled to receive a war widows’ pension with effect from 23 February 1999.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
AssociateDate of Hearing 2 September 2003
Date of Decision 12 December 2003
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Kelly, Departmental Advocate
0
15
0