Re Buckham and Repatriation Commission
[2000] AATA 174
•8 March 2000
CATCHWORDS – VETERANS' AFFAIRS – pension – whether applicant's hypertension is war-caused or defence-caused – whether applicant's salt intake through salt tablets provided by RAAF met salt intake required by Statements of Principle – consideration of accurate determination of hypertension – decision affirmed.
Veterans' Entitlements Act 1986 – Ss 5(AB), 8, 9, 13, 70, 120, 196B, 120A
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1; (1992) 109ALR 30; (1992) 66 ALJR 753
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 177 CLR 564; (1993) 67 ALJR 805
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Keeley v Repatriation Commission (1999) 30 AAR 48
Ogston and Repatriation Commission, unreported, 1 April 1999, NG 773 of 1998
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v McLean (1998) 50 ALD 149; (1998) 27 AAR 136
Re Keeley and Repatriation Commission [1999] AATA 178
Re Ogston and Repatriation Commission (1998) 27 AAR 176
Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17
DECISION AND REASONS FOR DECISION [2000] AATA 174
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1998/585
VETERANS' APPEALS DIVISION )
Re GRAEME BUCKHAM
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Dr K P Kennedy (Member)
Mr I R Way (Member)
Date 8 March, 2000
Place Brisbane
DecisionThe Tribunal affirms the decision of the respondent dated 7 May, 1997 and affirmed by a decision of the Veterans' Review Board dated 7 May, 1998.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 26 June, 1998, the applicant, Mr Graeme Peter Buckham, applied for review of a decision of the respondent, the Repatriation Commission ("Commission") dated 7 May, 1997 and affirmed by a decision of the Veterans' Review Board ("VRB") dated 7 May, 1998. The Commission's decision had been to refuse Mr Buckham's claim for medical treatment and a pension for incapacity from hypertension. It did so on the basis that the condition was neither war-caused nor defence caused within the meaning of the Veterans' Entitlements Act 1986 ("VE Act").
As the Tribunal wished to obtain further evidence as to the size of the salt tablets ingested by Mr Buckham and any relevant policy of the RAAF regarding ingestion of salt tablets, the hearing was adjourned for quite a lengthy period. On the first day of the hearing, Mr Buckham was represented by Mr O'Gorman of counsel. Mr Buckham represented himself at the resumed hearing as Mr O'Gorman had not been notified of it by either Mr Buckham or the Tribunal. Mr O'Gorman had not been notified due to a misunderstanding of the Tribunal's responsibilities in this regard. Mr Buckham declined to have the matter adjourned so that he could speak with Mr O'Gorman and elected to represent himself on the second day of the hearing. The Commission was represented by Mr Morison, an advocate with the Department of Veterans' Affairs ("Department").
The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a bundle of material prepared by Mr Buckham; a report dated September, 1998 by Dr Justin Kenardy, Associate Professor of Clinical Psychology, an extract from MIMS, Issue No.3, 1998; a letter dated 8 April, 1999 from Mr David Wilson, Executive Officer Historical Records (Air Force) to Mr Morison, and a report dated 21 July, 1999 by Associate Professor John McCarthy of the Australian Defence Force Academy. Mr Buckham gave evidence in support of his case together with Dr Trevor Beard. It was agreed between the parties, and we also agree, that the report of Dr Kenardy does not assist us in the resolution of the issues in this case. In view of that, we will not refer to it further in these reasons.
THE ISSUE
The issue in this case is whether Mr Buckham's hypertension is war-caused or defence-caused in accordance with the VE Act. This issue centres on the amount of salt that Mr Buckham consumed for a continuous period of six months prior to an accurate determination of hypertension.
BACKGROUND
Mr Buckham was born on 19 June, 1936. On 29 February, 1952, he joined the Royal Australian Air Force ("RAAF") and served until 31 October, 1975. His eligible war service, which is also operational service for the purposes of the VE Act, occurred from 1 May, 1963 to 27 May, 1963 with the Far East Strategic Reserve and from 31 July, 1963 to 27 August, 1963, from 23 October, 1963 to 19 November, 1963 and from 11 February, 1965 to 7 August, 1965 in Ubon. He left Penang on 10 October, 1965 and disembarked in Melbourne on 20 October, 1965. In all, Mr Buckham had approximately nine months of operational service. His service from 7 December, 1972 until his discharge on 31 October, 1975 was defence service within the meaning of that legislation.
THE EVIDENCE
Blood pressure readings
The medical examination undertaken on 28 May, 1966 recorded Mr Buckham's blood pressure as 140/90 (T documents, page 16). This is the earliest reading appearing in the records. Mr Buckham said that he had to wait a while until his blood pressure settled down. The medical practitioner completed the rest of the examination and returned to take some three further readings. Mr Buckham said that he wrote down the last figure. The medical practitioner also warned him about his weight and Mr Buckham told him that he would try to lose some of it. The conversation was not centred on his blood pressure and no treatment was suggested.
There is no record of any further blood pressure reading until 12 July, 1967 when it is shown as 140/90 (T documents, page 14). On 8 March, 1972, three readings were recorded: 180/120, 180/120 and 160/110 (T documents, page 12). Similar readings were recorded from that time on (T documents, pages 3-12).
Mr Buckham – written statements
In a letter of 19 June, 1996, Mr Buckham enquired about benefits for which he might be eligible as a former member of the Defence Force. He referred specifically to his condition of essential hypertension, which was diagnosed prior to his discharge from the RAAF. In the claim lodged with the Department on 6 May, 1997, Mr Buckham lodged a claim for essential hypertension as well as for damaged left ear hearing which is not relevant in this case. In response to a question in the claim form as to the manner in which the disability arose, Mr Buckham wrote: "General service working conditions and stress levels" (T documents, page 23).
Mr Buckham's claim was refused and he was advised of that decision in a letter dated 7 May, 1997. The Commission's delegate advised him, in part, that:
"Increased consumption of salt
Hypertension can only be related to salt consumption during operational service if the clinical onset of the hypertension occurred during operational service. This was not so in this case and therefore salt consumption during service is not a cause of hypertension in this case.
.Other factors
There is no history of obesity, or psychoactive substance abuse or dependence involving alcohol.
The evidence before me indicates that the other factors that can cause hypertension, contained in the Statement of Principles, do not apply in this case." (T documents, page 28)
In a letter dated 7 August, 1997, Mr Buckham applied for review of the delegate's decision. In support of his application, he wrote, in part:
"I arrived for duty in Malaya on 1 May 1963.
My medical category was A1BA3B fit for Malaya service 27/3/63.
Blood pressure Systolic diastolic 80/135
From the 1 May 63 until my departure from Butterworth on the Nov 65 (sic) I was obliged to take 2 salt tablets on a daily basis and a malaria tablet quinine on a weekly cycle.
This was not a self selected routine but a routine monitored by the medical staff at Butterworth to ensure energy levels and malaria prevention programmes were firmly in place.
The programme was closely monitored by RAAF staff and failure to fully participate resulted in disciplinary action.
On the 8 March 1972 while undergoing a medical for commission my blood pressure was discovered to be Systolic 180 Diastolic 120.
I was referred to a specialist Dr Jackson who immediately recommended a no added salt diet and further clinical evaluation. I was assessed as medically fit A4G201Z4
Prior to and during my treatment in the RAAF I had no knowledge of a hypertensive condition my general health was excellent. I have no doubt that over the intervening years because of my attention to fitness I had failed to recognise the early symptoms of my condition." (T documents, page 32)
Mr Buckham's application for review was refused and he was advised of that by a delegate of the Commission in a letter dated 4 December, 1997. With regard to the role of salt in his condition, the delegate wrote:
"Hypertension can only be related to salt consumption during operational service if, in addition to dietary salt, there was a consumption of an additional 12 grams of salt every day for at least six months immediately prior to the clinical onset of hypertension. This was not so in this case, and therefore salt consumption during operational service is not a cause of hypertension." (T documents, pages 45-46)
On 12 January, 1998, Mr Buckham lodged an application for review with the VRB. The statement in support of his application referred to his previous letter dated 7 August, 1997 and then continued:
"In this correspondence I stated that effective from the 01 May 1963 I was 'obliged' to take 2 salt tablets per day and a quinine tablet weekly. I stressed this was not a self indulgent programme but one that was monitored by RAAF medical staff and failure to fully participate could result in disciplinary action. (Malingering)
A statement which may sound a little over the top in this day and age but at the time was a definite reality.
While I cannot accurately vouch for the size and weight component of the salt tablets they were a good solid tablet and the advice given was two a day minimum but if you were involved in heavy physical activity the more the better, to this extent the tablets were freely distributed at all on base water drinking outlets.
My operational tour of Malay and Ubon was from 01 May 1963 – 20 October 1965. The period I was involved in the excess salt diet was 30 months the quinine programme a little longer." (T documents, page 52)
Mr Buckham repeated this material in a further statement in support of his application for review (T documents, pages 62-63).
The VRB noted in its decision that Mr Buckham had "… said that the daily consumption of salt tablets required by higher authority was a minimum of two tablets and a maximum of six tablets, depending upon the prevailing work conditions." (T documents, page D5).
Mr Buckham – oral evidence
In cross-examination, Mr Buckham said that he had been brought up on a RAAF diet since the age of 15 years. Other than on eggs, very seldom did he add any salt to his food. He said that he found taking salt like taking castor oil – he only indulged in it on advice.
In his oral evidence, Mr Buckham said that he started to take salt tablets as part of his indoctrination into tropical living during the voyage from Sydney to Penang. By that time, he had already begun anti-malaria treatment by taking quinine tablets. He had been warned about the oppressive heat and humidity. Mr Buckham said that all were advised to start a salt regimen immediately. A light dose of two tablets was recommended at the outset.
During his service in Ubon, Mr Buckham said, the ground crew was in constant deployment in a state of operational readiness. Two aircraft were on standby alert to provide ground support for American troops. Mr Buckham, who was a radio technician and who also supported the aircrew in the launch and was engaged in servicing the aircraft before and after each flight, was in the open throughout the whole day. The pilot would be strapped in the aircraft and Mr Buckham would be on the wing. The heat from the tarmac made the aircraft almost unbearable to touch. Permission was given to manufacture a canopy for the protection of the pilot but Mr Buckham did not have such protection. When the aircrew received a signal to launch the aircraft, Mr Buckham had to unplug the ground support and then scramble back over the aircraft. He had approximately 15 seconds to do that. After the aircraft had gone, Mr Buckham went to a nearby shack for a drink of water and a couple of salt tablets. The aircraft would return after some 50 or 60 minutes and the procedure would start all over again. Each day, he was on duty for thirteen hours and was involved in five or six launches.
Mr Buckham said that the recommendation given to him and others was to take salt tablets "as often as you like". They were "popping them like Smarties as the theory was that they staved off heat exhaustion". He was taking ten to twelve tablets each day. In cross-examination, Mr Buckham was asked to explain his statement that he and his colleagues were told to take salt tablets as often as they liked. He replied that they had all been given a general briefing before they left Australia but this had been updated when they arrived at Butterworth. A person who worked in an orderly room, for example, was not called upon to have the same salt intake as a tarmac worker. He had not referred to the pre-embarkation in his letter of 7 August, 1997 due to his lack of experience, he said, and it was more a matter of his use of language.
Of his statement in his letter of 7 August, 1997 that "From the 1 May 63 until my departure from Butterworth on the Nov 65 I was obliged to take 2 salt tablets on a daily basis and a malaria tablet quinine on a weekly cycle", Mr Buckham said in giving evidence that he had omitted the very important word "minimum". He should have written that he was obliged to take a minimum of two salt tablets each day. His application to the VRB of 12 January, 1998, he said, was also referring to a minimum of two salt tablets.
Mr Buckham was also asked by the Tribunal what he had meant by his being obliged to take salt tablets. He replied that there was a book that had to be signed but it was more concerned with quinine. The tablets and book were kept in the same area but the book had to be signed in relation to quinine tablets. Intake of salt tablets was not checked but intake of quinine was checked. Mr Buckham said that they were briefed at Ubon of the need to take salt tablets. The amount of salt that was taken by each person was left to his or her discretion. He took two with each meal and it was recommended that another be taken each time a person took a drink. No-one monitored their taking the tablets.
In cross-examination, Mr Buckham was asked what he had meant by the word "obliged". He explained that he had meant that it was a "mandatory medical requirement". Failure to take salt tablets could lead to a charge of neglecting one's self. It would be regarded as a self-inflicted injury. Mr Buckham was also asked in cross-examination about the statement in his letter of 12 January, 1998 that he was obliged to take two salt tablets per day and a quinine tablet weekly (T documents, page 52). He replied that, at that stage, he was giving the pre-embarkation advice. Salt was not the main issue as his main concern was his weight, that had been expressed to be 185 kilogrammes instead of pounds, and his assessment for the VRB. He told the VRB six tablets as he thought that "fifteen sounded way over the top". At that time, his intake of salt was not being queried at all. He mentioned six as he thought that number would be associated with standard practice. His actual intake of salt tablets had been a couple at 0530 hours, another couple at each of lunch and dinner and others during the day.
At the resumed hearing, Mr Buckham was asked by the Tribunal about the compulsory nature of his taking salt tablets. He said that he had stated that it was compulsory in his recollection of the instructions he had been given. His recollection was that he could be charged if he were found to be ill because he had not taken his tablets. Mr Buckham knew of no-one who had been charged on that basis. There was, however, a book monitored by the medical orderlies to show that each person had taken salt and quinine tablets. Each person signed the book each day but it was an individual decision as to how many salt tablets were taken. They worked on the basis of two tablets each hour. The fellows in his squadron, he continued, thought that, following the briefing at Butterworth, if they kept their salt up, they would be more alert. They used to have a high intake of water and the salt tablets were kept with the water at both Butterworth and Ubon.
When asked whether they had been given any guidance as to the numbers of salt tablets they were to take, Mr Buckham said that, if they took too many, they "became crook. If they were not crook, they were not taking too many." Salt tablets keep sunstroke and dizziness away. They were never formally briefed to take fifteen each day but thirty a day had a disastrous effect. "The more salt you had, the better you were", Mr Buckham said.
Mr Buckham was also asked at the resumed hearing about his previous evidence that he had told the VRB six tablets as he thought that "fifteen sounded way over the top". He confirmed that fifteen did sound "over the top". The aircraft were on standby from first light at 5.00am until after the last light strikes at 9.30pm. The ground crew had a tin hut at the end of the runway. Water, aircraft log books and minor maintenance equipment were kept in the hut. They always took the tablets in pairs and on a regular basis. There was nothing to say that they were to take them in pairs, and he could not vouch for that, but every time they went to the water container in the hut, they took the salt tablets. He would say, he said, that he took up to eighteen salt tablets a day for the period he was at Ubon. While at Ubon, he was on duty every day. At Butterworth, he was not on duty every day as he had one day off duty each weekend. His duties at Butterworth were non-operational and the only reason he took salt tablets there was because it was a tropical posting.
With regard to quinine tablets, Mr Buckham was asked by the Tribunal at the resumed hearing about the requirement to take them. He said that he thought that the requirement was to take a quinine tablet weekly. Mr Buckham was not absolutely sure but he knew that there was a book which had to be signed in front of a medical orderly. The book was an exercise book with names written down the left hand column and other columns with various dates at the top of each. There was no supervision of his taking quinine tablets and he signed the book stating that he had taken them when he knew that he had not. He knew that the quinine tablets were at home and that he would take them. Mr Buckham could not recall whether the book had to be signed weekly or daily. The signing of the book was not supervised and he thought that the book came around for signature each Friday. No signature was required regarding the consumption of salt tablets. He was "pretty sure" that no record was required of his taking salt tablets. The only record required was in relation to quinine. To his knowledge, there was no record of the salt tablets he took. To keep that, he said, there would need to have been a number of salt tablets that each person was required to take.
Mr Buckham was also asked by the Tribunal about how good his memory was regarding his consumption of salt tablets when he had started by saying that he had consumed two, then six, twelve and eighteen. He replied that he was not confident but he was saying that every hour he had a drink, he always took a pair of salt tablets. He was completely confident about that. On days when the base was closed because of poor weather conditions, he may take them only every two hours. When the weather was bad, the ground crew would be on site huddled in a tin shed and hope that neither lightning nor the Indonesians struck them. Most days the aircraft flew.
After he returned from overseas service, Mr Buckham said in giving his evidence, he continued to take salt tablets as he was a squash player of some note. He felt that to take salt tablets was a good way of preventing heat exhaustion and continued to take them on RAAF advice. In cross-examination, Mr Buckham said that he took two tablets after each game. He played three games a week over his lunch hour when he was based at Support Command in Victoria. The salt tablets were about the same as those he had previously taken and he obtained them from the RAAF supplementary issue. Mr Buckham said that he probably took his last salt tablets in 1967 when he went to the United States of America for a two year period to study the F1-11. He could not take them from Australia without first getting approval.
In cross-examination at the resumed hearing, Mr Buckham said that he only took salt tablets during interservice activities. When he left Butterworth, he effectively stopped taking salt although there were periods when he did. For example, he re-commenced in Darwin for short periods "and say squash" but it was not the same regimen that had been imposed on him and his colleagues in Malaysia and Ubon. Mr Buckham said that he was in Darwin in 1972 and also had deployments in 1974 and 1975. After he was told not to take salt tablets in 1972, he did not continue to do so.
Mr Buckham agreed that he had earlier said that he had taken two salt tablets after each game of squash and he last took salt tablets in 1967 and that he now told a different story. He said that, "with regard to squash, yes". When asked why it was different, he said that it was because he only recalled taking them at the "interservice level" because salt tablets were not readily available to him. He agreed with the suggestion that interservice squash was infrequent but there was training for team selection. The competition extended over three days. When asked again how many he had taken at squash, Mr Buckham said that his only memory was that he had taken them at interservice competitions. He only took them when they were there and used them as a "pick me up" and if he sweated a lot. When asked to clarify when he took them during service, Mr Buckham replied that he did not know. Due to heavy sweating, he often took them purely as a "pick me up" after squash in the same way as a person would drink cold tea in Indonesia.
In giving evidence, Mr Buckham thought he recalled that he had been asked by the VRB whether he had taken salt tablets during the years 1972 to 1975. At the time, he replied in the negative. He had already received a warning in March, 1972 not to take any further salt but salt tablets were being issued to people in Darwin and, he thought, Townsville, during those years. Mr Buckham agreed with Mr O'Gorman that he would have said two to six tablets per day, depending upon the prevailing work conditions. In writing that, he said, he would have been giving, in his opinion, a conservative estimate of the tablets he was taking. When asked how he reconciled that statement with what he had told the Tribunal, Mr Buckham said that there had been no detailed discussion of the subject at the VRB. He had assumed that the VRB had accepted what he had told them as he was never queried about the actual amounts he took.
At the resumed hearing, Mr Buckham was asked why he had stopped taking salt tablets in 1972. He replied that he had done so when he had been diagnosed with essential hypertension by Dr Jackson, who told him not to take any salt additive. On tropical tours to Darwin, he did not take salt even though it was still available.
The tablets that he took remained the same size throughout. Recently, he had purchased a bottle of salt tablets at an Ipswich pharmacy. Compared with the tablets in that bottle (Exhibit A), the salt tablets he took were at least twice the size and did not taper towards the edges. He also thought that the tablets were "saltier" than those he used to take.
Historical evidence of use of salt tablets in the RAAF
Mr Wilson and Associate Professor McCarthy both examined historical records regarding the use of salt tablets in the RAAF. As part of his research, Mr Wilson first sought the advice of the Defence Health Service Branch of the Department of Defence regarding the use by members of the RAAF of salt tablets during and after World War II. That branch did not hold any documentary evidence of their use at that time. He said in his letter that he was unable to find any documentary evidence from any other source but he sought anecdotal evidence which he summarised:
"Members of the Defence Health Service Branch have discussed this matter with a retired medical officer with World War 2 service. These discussions indicate that instructions may have been included in Air Force Orders or issued by the Command Medical Officer for promulgation in Unit Routine Orders. Anecdotal evidence provided by a retired Pharmacy Officer indicates that salt tablets were available through the Defence supply system until the early 1980's. There is no documentary evidence held to support this assertion." (Exhibit 4.)
Mr Wilson went to search for Unit Routine Orders which were not held by Historical Records (RAAF). He continued in his letter:
"Wartime Air Force Orders were transferred to the custody of the National Australian Archives in Canberra some years ago. Orders related to medical matters are in the '13' series. The Air Force Orders held by RAAF Historical Records relate to the 1950's. There is no reference in these orders to the use of salt tablets."
Associate Professor McCarthy was asked to carry out research into the salt tablet consumption policies of the RAAF from 1 May, 1963 to 20 October, 1965 when Mr Buckham was serving in Penang, Butterworth and Ubon. He conducted extensive research but was unable to locate any contemporaneous documentary evidence regarding the consumption of salt tablets. He did, however, find a comprehensive discussion of salt intake and the medical problems associated with salt depletion in Australia in the War of 1939-45, Series 5, Medical, Medical Services of the RAN and the RAAF, Allan S. Walker, Canberra, 1961 and Clinical Problems of War, Allan S. Walker, Canberra, 1952. Associate Professor McCarthy also referred to a letter from the Department of Defence dated February, 1996.
Professor McCarthy attempted to answer the questions he had been asked by using circumstantial evidence and situational logic and did so as follows:
"Excessive loss of sodium chloride (common salt) from the human body as a result of excessive sweating is manifested firstly in muscular weakness and cramps. Under normal conditions, fluid intake and output possess a dynamic balance but any change in normal intake and output can easily upset this balance. A sodium deficit, particularly in rapid loss, may cause anxiety, weakness, stupor, abdominal cramps, muscle twitching, convulsions and vasomotor collapse. [Virginia E. Richardson, 'Intravenous Therapy', Pharmacology and Drug Information for Nurses, Third Edition, Hospital Pharmacists of Australia, (Marrickville, 1981), p159-161).
It has long been recognized that high external temperatures may thus have an injurious effect upon the human body. This consideration was particularly important in the second world war. Australian forces served in many theatres with tropical climates with a corresponding high humidity level. Allowing for individual differences, it has been calculated that the loss of sodium chloride through sweating might fall within the range of 30 grammes to as high as 60 grammes within an eight hour period. [Allan S. Walker, Medical Services of the RAN and the RAAF, p.102] Unless salt lost through this process could be replaced, the medical effects and of course the military effects could obviously be serious.
The consumption of salt tablets was one way by which lost sodium chloride could be replaced.
You ask firstly how many salt tablets would have been recommended or directed for RAAF personnel to consume on a daily basis? Much clearly would depend on the locality of the RAAF personnel. The Veteran was serving at Penang and Butterworth, both in Malaysia at at (sic) Ubon in Thailand. Malaysia has a climate with a range of average daily temperatures of 21-32 degrees in coastal regions and 12-25 degrees in the mountains. In the north there is an average annual rainfall of 800mm. The result is very high humidity. Penang Island lies a short distance from the mainland – its climate is hot, humid and might be described as exotic. In Malaysia, therefore, the Veteran was serving in such a climate which according to second world war calculations, a salt supplement would be necessary.
It is impossible to say, however, how many salt tablets a day would have been recommended or directed by RAAF authorities. In the nineteen-forties and nineteen-fifties the average individual consumption of salt has been estimated to have reached 10 grammes per day. [Walker, Medical Services of the RAN and RAAF, p.100] According to information from the Defence Food Science Centre, this figure remains the average consumption today. In 1943 it was calculated that salt requirements in hot climates were: 2 grammes per hour for a man working; 0.5 grammes per hour for a man at rest; 12 grammes per day for sedentary occupations; 24 grammes per day for a man doing hard physical work. [Walker, Clinical Problems, p368].
It is noted that the Veteran was mustered as a Radio Technician Air. While this may not have entailed hard physical work it is reasonable to speculate that he would have been often on the tarmac servicing aircraft radio equipment in extremely hot conditions and without the benefit of shade. In such condition it may be reasonable to argue that the Veteran's salt requirements would have been at the upper end of the above scale.
Similar comments apply to to (sic) the Veteran's service in Ubon. Thailand has an equatorial climate in the south and a tropical monsoon climate in the north with high temperatures and humidity. The average annual rainfall is 1400 mm. As the RAAF Historian notes of Ubon
'It was always hot and the heat was accompanied either by a choking red dust in the dry season or oppressive humidity and deep red mud during the monsoon'. [Alan Stephens, Going Solo – The Royal Australian Air Force 1947-1971, (Canberra, 1995), p.276].
You make the point that it is important to know if the consumption of salt tablets was compulsory or discretionary. It seems very possible that the consumption of salt tablets was neither compulsory or discretionary but simply necessary to avoid the medical symptoms previously mentioned. Such symptoms would have become quickly apparent and it is possible that the effect of these symptoms would not have been to the personal benefit of RAAF personnel. The point should be made that the Veteran was not a young serviceman but an experienced non-commissioned officer with a history of serving in tropical locations. It is most conceivable that such an experienced officer would have would have (sic) needed no compulsion to have safeguarded his health and well-being.
You next ask if the consumption of salt tablets was monitored? Again one can only refer to the self-monitoring aspect of the depletion of sodium chloride. It possibly would have made an executive monitoring system unnecessary. Similar comments refer to your next question: was non-compliance considered a disciplinary matter? As I cannot find any reference to salt tablets in the post-second world war literature nor in primary sources there is no possibility of being certain. I have, however, read many war diaries, naval reports of proceedings and RAF operations record books, and have never seen charges brought against a member of the three services pertaining to a failure to consume salt tablets.
You ask: How many grams of salt was contained in each salt tablet? This raises the question of the composition of the tablets themselves. The literature of some twenty years previously makes it clear that that (sic) no one standard sized tablet was made available. In the Royal Australian Navy, engine room staff working in tropical conditions were issued with salt tablets each containing 15 grammes of salt. A common issue was an 8 gramme tablet for RAN personnel working in adverse conditions. [Walker, Medical Services of the RAN and RAAF, p. 101]. Walker also mentions '…a convenient salt tablet [which contained] ½ gramme [of salt] with an additional equivalent amount of dextrose taken in one to three does (sic) daily. [Medical Services, p. 101]. A further combination largely used in the South West Pacific was '…a magnesium salt'. [Walker, Clinical Problems, p. 319], The modern salt tablet available from pharmacies contains 600mg of sodium chloride and the recommended intake is between 12 and 15 tablets each day if doing physical work in a hot climate. Thus if 15 tablets were taken the intake would be 9grms per day.
Conclusions
It is impossible to know how many salt tablets would have been recommended or directed for RAAF personnel to consume on a daily basis. Even is (sic) this question could be answered it would have no meaning because all would depend on the amount of sodium chloride contained in each tablet. As argued above, there appears to have been no standard tablet and each tablet contained variables of composition. It has been argued that the consumption of salt tablets would have possessed a self-monitoring aspect as the effects of salt depletion would have become quickly apparent. Thus it could be argued that the consumption of salt tablets was discretionary and discretion must have been applied otherwise there would have been a large number of heat and sodium chloride depletion casualties. There is no evidence available which shows that there were.
It is regretted that the lack of primary evidence makes this report more speculative than is desirable. There may be in existence an indent for salt tablets. I suspect, however, that such material would not have been deemed worth preserving by either the National Archives of Australia nor by the Australian War Memorial. There is also a possibility that salt tablets were prepared by the pharmacist on any given unit and thus formulated to meet the conditions of a specific locality. It remains true, however, that given the conditions in which the Veteran worked in Malaysia and Thailand, a salt supplement would have been required to avoid medical problems." (Exhibit 5, pages 3-6)
Medical evidence
Dr Trevor Beard is a Senior Research Fellow at the Centre for Population Research at the University of Tasmania. He said in oral evidence that he was aware of the operation of a SOP. In relation to the SOPs formulated in 1998 and 1999, Dr Beard considered that factor (c) is applicable in this case. Whether or not Mr Buckham had ingested 12 grams of salt supplement each day in the circumstances described in that factor was not, Dr Beard said, a matter for him to judge.
In cross-examination, Dr Beard said that a reading of 140/90 would be regarded as hypertension these days. If such a reading were taken today, the person would be seen again and two readings taken on each occasion. Readings must be taken over a period of time before a diagnosis of hypertension can be made. Multiple readings are required as there may be reasons, such as emotional upset, pain, upper respiratory infection and some medications, for an increased reading. In the 1960s, only one reading would be taken. A reading of 150/100 would be required before a diagnosis of hypertension would be made. The person would probably then be observed but not treated as the drugs then were "not nice".
Dr Beard said that salt used to be prescribed in large amounts but it was a mistake to do that. It is possible, however, for a person to suffer from sodium depletion if he or she were to sweat when working.
Size of tablets
MIMS issued in June/July, 1998 describes salt tablets as being sold in packs of 100 and each tablet being 600mg. The recommended dose is 4-6 tablets daily for light work and 12-15 for heavy work. The tablets are to be taken one at a time with water. (Exhibit 3)
THE LEGISLATIVE FRAMEWORK
Sub-section 13(1) of the VE Act provides that, subject to the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran if his or her injury or disease was war-caused. The amount of that pension and the terms under which it is payable are determined by the VE Act. Pursuant to sub-section 70(1), the Commonwealth is liable to pay pension by way of compensation to a member of the Forces if he or she has become incapacitated from a defence-caused injury or defence-caused disease.
Provisions relevant to a consideration of whether the conditions are war-caused
A veteran's injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in section 9. In so far as this case is concerned, only paragraph 9(1)(b) is relevant. It provides that:
"… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) …
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;"
The standard of proof which must be used in determining whether or not a veteran's injury or disease is taken to be war-caused is set out in section 120. That section sets out two standards and which of those two is applicable depends upon whether the injury or disease is said to relate to a veteran's operational service or otherwise. Both are relevant in this case as Mr Bell has both operational service and defence service and he has related his conditions to one or both of them.
In so far as his claim relates to his operational service, sub-section 120(1) is relevant. It provides:
"Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."
Sub-section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the disease was war-caused. It provides:
"In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Sub-section 120(3) must be read with section 120A of the Act. In so far as it is relevant, it provides that:
"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) ...;
(b)...
that upholds the hypothesis." (sub-section 120A(3))
Sub-section 120A(4) provides that sub-section 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SOP under sub-section 196B(2) nor declared that it does not propose to make such a SOP in respect of the particular death or injury in issue.
The RMA must prepare a SOP in situations prescribed in the Act. In respect of cases to which sub-sections 120(1) and (3) apply, it has the following role:
"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (sub-section 196B(2))
Sub-section 196B(14) defines the concept of "related to service" in terms consistent with those used in section 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in section 8. In so far as this case is concerned, only paragraph 196B(14)(b) is relevant. It provides that:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b)it arose out of, or was attributable to that service;"
"Sound medical evidence" has the meaning given in sub-section 5AB(2) (sub-section 5AB(1)):
"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."
The manner in which the provisions of sub-sections 120(1) and (3) inter-related prior to the introduction of SOPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:
"The position may be summarised as follows:
(1) First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 215)
In relation to the first step, their Honours had earlier said:
"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:
'… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.
In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)
The SOPs were introduced after the High Court's judgement had been handed down. The manner in which sub-sections 120(3) and (4) inter-relate with the provisions of a SOP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission CLR 408 and Byrnes v Repatriation Commission, his Honour concluded:
"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)since (1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an Sop, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)
In its judgement on appeal, the Full Court of the Federal Court summarised the course that must be followed in a cases involving a SOP. It said:
"… 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) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not 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 s 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 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." (pages 159-160)
Provisions relevant to a consideration of whether the conditions are defence-caused
A veteran's injury or disease is taken to have been "defence-caused" if it meets one of the criteria specified in section 70. In so far this case is concerned, only paragraph 70(5)(a) is relevant. It provides that:
"For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;"
In so far as Mr Buckham's claim relates to his period of defence service, sub-section 120(4) provides:
"Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."
The meaning of the expression "reasonably satisfied" has been considered by the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537. After considering the authorities, Beaumont J concluded that the Tribunal:
"… should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 87. " (page 547)
Sub-section 120(4) must be read with section 120B:
(1)"This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
The Statements of Principle
Since Mr Buckham lodged both his informal and formal claim in respect of hypertension, the relevant SOP has changed. At the time of both of his claims and up to and including the review by the VRB, the relevant SOPs were SOP 83 and SOP 84 of 1995. On 3 September, 1998 and after Mr Buckham had lodged his application for review in the Tribunal, those SOPs had been replaced by SOP 64 and SOP 65 of 1998. On 25 February, 1999 and by the time of the hearing, SOP 64 and SOP 65 had, in turn, been replaced by SOP 25 and SOP 26 of 1999.
There has been some question in the past as to the SOP that should be followed in such cases. The question was raised in Repatriation Commission v McLean (1998) 50 ALD 149 but Davies J, who noted that there was conflicting authority, declined to answer it (page 155). The then President of the Tribunal, Mathews J, considered a related question in Re Ogston and Repatriation Commission (1998) 27 AAR 176. In that case, Mrs Ogston had claimed a war widow's pension after 1 June, 1994 but before a SOP had been made in relation to the disease from which her husband had died. A SOP was subsequently made and the Commission applied it in refusing her claim. Mathews J decided that the Commission was bound to apply the SOP in those circumstances. An appeal against her decision was dismissed (Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998). The High Court refused an application for special leave in late November, 1999.
In Re Keeley and Repatriation Commission ([1999] AATA 178), the Tribunal decided to apply the later SOP. An appeal to the Federal Court was allowed by Heerey J who distinguished Ogston ([1999] FCA 1103). An appeal from his decision to the Full Court has been heard and reserved.
Rather than considering further the existing state of the authorities and, in view of them, reaching our own decision as to the appropriate SOPs to apply, we have considered Mr Buckham's claim in respect of each of them. We have done so in the first instance in relation to those applying to war-caused hypertension.
There was no question raised at the hearing, and we accept, that Mr Buckham suffers from hypertension. Mr Buckham claims that this condition is war-caused because he was required to take more than 12 grams of salt each day while rendering eligible war service. Having regard to all of the material, there is material that points to that hypothesis and that hypothesis would connect his hypertension with the circumstances of his service.
It is not an hypothesis that is contrary to proved or known scientific facts. Is it an hypothesis that is consistent with the applicable SOP. SOP 83 provided that:
"the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension … with the circumstances of that service, are:
…(c)ingesting an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension;
…" (paragraph 1(c))
For the purposes of SOP 83:
"'accurate determination of hypertension' generally means the accurate measurement of blood pressure on a number of occasions. As stated in the Management of Hypertension: a consensus statement The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain accurate measurement of blood pressure, the conditions for measurement should be standardised as much as possible before readings by ensuring the following:
·a mercury sphygmomanometer should be used in the diagnosis of hypertension;
·patients should be relaxed and seated. Additionally information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypotension;
·the bare arms should be supported and positioned at heart level;
·a cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. The bladder length should be at least 80%, and the width at least 40%, of the circumference of the upper arm;
·the cuff should be snugly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
·In older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudo-hypertension);
·The cuff should be deflated at a rate no greater than 2 mmHg/beat (2 mmHg/sec);
·If initial readings are high, several further readings should be taken after five minutes of quiet rest;
·On each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used. Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.
At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, the diastolic pressures should be recorded as an average of phases IV and V.
.For adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement;" (clause 4)
The earliest reading taken in respect of Mr Buckham's blood pressure was taken on 28 May, 1966 and it was 140/90. On the basis of the evidence of Dr Beard, we are satisfied that, at the time it was taken, such a reading would not have led to a diagnosis or determination of hypertension. We are also satisfied that it would lead to such a diagnosis in the 1990s but only if it were confirmed by subsequent readings. In view of that and in view of the definition of the expression "accurate determination of hypertension" in SOP 83, can the reading on 28 May, 1966 be considered to be such a reading?
We are in somewhat of a quandary regarding the reading. The evidence of Mr Buckham is that the medical practitioner took, in all, four readings and that he wrote down the last one. This does not accord with the practice set out in the consensus statement but we note that the consensus statement of the Medical Journal of Australia referred to in SOP 83 was formulated in 1994 and so many years after the reading was taken. The medical practitioner's procedure accorded with the practice of the day and would, at that time have been regarded as his resting and accurate blood pressure. We note that Mr Buckham's blood pressure reading on 12 July, 1967 was again recorded as 140/90. No further readings are recorded until 8 March, 1972 and, from that time, they are consistently higher than in 1966 and 1967. We also note that SOP 83 defines the expression in terms of its "generally" having a certain meaning. In view of the difficulties in assessing older practices by more modern practices and in view of the consistency of the elevated readings recorded on and after 28 May, 1966, we consider that this is a case which falls outside the "general" case. On the basis of the readings we have referred to, we consider that there was an accurate determination of Mr Buckham's hypertension on 28 May, 1966 and that this was the earliest determination. Although it is feasible that a person may have hypertension before an accurate reading is made, the definition of the expression "accurate determination of hypertension" in SOP 83 makes it clear that the date of the measurement of blood pressure is the crucial thing and not the actual onset of the condition.
If the hypothesis put forward by Mr Buckham is to be consistent with SOP 83, he must have ingested an additional 12 grams of salt per day for a continuous period of at least six months immediately before 28 May, 1966. There is no material pointing to his having done so. Indeed, the only material on the issue is Mr Buckham's own evidence that he effectively stopped taking salt after returning from Butterworth in October, 1965. That is to say, on his own evidence, he stopped taking them more than six months before 28 May, 1966 and two months after the conclusion of his eligible war service. There is his evidence that there were periods when he resumed taking salt. In the period after his return to Australia, for example, his evidence was that he was taking salt tablets only after playing squash, which he did three times each week and during inter-service competitions. Even if his taking salt supplements at that time arose out of or was attributable to his eligible war service (and we have not explored this), the evidence points only to his having taken two tablets after each game. Whatever the size of the tablets and whatever amount he ingested on each of those three days, there is no material pointing to his ingesting any additional salt on the other four days of the week. It follows that, on the evidence we have, the hypothesis is not consistent with paragraph 1(c) of SOP 83. It cannot be regarded as a reasonable hypothesis and so Mr Buckham's hypertension cannot be regarded as war-caused within the meaning of the Act.
We note that we would have reached the same conclusion even if we are incorrect in our taking 28 May, 1966 as the earliest accurate determination of Mr Buckham's hypertension. The choice of any of the subsequent dates that were discussed during the hearing as possible dates also leads to the same conclusion: there is no material pointing to his having ingested 12 grams per day of salt for a continuous period of at least six months immediately before an accurate determination of his hypertension at any later date.
Although SOP 64 and SOP 25 are slightly differently worded from SOP 83, the factors which must be raised connecting hypertension with the circumstances of a person's circumstances are, in our view, expressed in terms which are meant to convey the same thing. Although SOP 64 and SOP 25 refer to "at least 12 grams … of salt supplements" and SOP 83 to "an additional 12 grams per day of salt" we consider that they both mean the same thing. It follows that we would not reach any conclusion different from that we have reached in the light of SOP 83 and would not find Mr Buckham's hypertension to be war-caused.
Turning now to whether Mr Buckham's hypertension is defence-caused, we have had regard first to SOP 84. That SOP makes no reference at all to salt intake as one of the factors that must exist before it can be said, on the balance of probabilities, that hypertension is connected with the circumstances of a person's service. It follows that Mr Buckham cannot satisfy one of the factors referred to in SOP 84 and so his hypertension cannot be accepted as defence-caused if that is the applicable SOP.
If the applicable SOP is SOP 65 of 1998:
"The factors that must exist before it can be said that, on the balance of probabilities, hypertension is connected with the circumstances of a person's relevant service are:
…
(c)ingesting at least 15 grams (250 mml) of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension; …"
The definition of the expression "accurate determination of hypertension" is given in the same terms as it appears in SOP 83.
Having regard to the evidence we have set out above, we are satisfied on the balance of probabilities that the date of the earliest accurate determination of Mr Buckham's hypertension was 28 May, 1966. This is a date long before his defence service which occurred between 7 December, 1972 and 31 October, 1975. It cannot be said that his later defence service played any part in his suffering from hypertension.
If we are incorrect in our conclusion as to the date of the accurate determination of Mr Buckham's hypertension and it is a later date, we are not satisfied that it arose out of or was attributable to his defence service. During the course of his evidence, he gave two dates on which he stopped taking salt supplements. The first was in 1967 when he went to train in the United States of America and the second was in 1972 when he saw Dr Jackson. As he saw Dr Jackson soon after he had been referred by another medical practitioner in March, 1972, his ceasing to take salt supplements must, on the balance of probabilities, have been in March or April, 1972 or at least well before December, 1972. In any event, both 1967 and the early months of 1972 are well before the commencement of his defence-service in December, 1972. On the balance of probabilities, he would not have been ingesting any salt supplements during his defence service and so any hypertension arising out of or attributable to his doing so could not arise out of, or be attributable to, his defence service. It follows that his hypertension is not defence-caused within the meaning of the Act.
If the applicable SOP is SOP 26, we have reached the same conclusion for the same reasons as we have done if SOP 65 is applicable. The two are written in identical terms.
It follows that we have decided that Mr Buckham's hypertension is neither war-caused nor defence-caused within the meaning of the Act. For the reasons we have given, we affirm the decision of the respondent dated 7 May, 1997 and affirmed by a decision of the Veterans' Review Board dated 7 May, 1998.
I certify that the seventy-four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President, Dr K Kennedy (Member) and Mr I Way (Member)
Signed: .........................................
M Martinez AssociateDates of Hearing 10 March and 10 November, 1999
Date of Decision 8 March, 2000
Counsel for the Applicant Mr D O'Gorman and the Applicant
Advocate for the Respondent Mr R Morison
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