Shirley Hutton and Repatriation Commission

[2013] AATA 940

[2013] AATA 940  

Division	VETERANS' APPEALS DIVISION
File Number	2013/1847
Re	Shirley Hutton
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	23 December 2013
Place	Brisbane

The decision under review is set aside. In substitution it is decided the veteran’s death was war-caused. The matter is remitted to the respondent for assessment.

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Kind of death of veteran war caused – Level and history of salt intake – Decision under review set aside, varied, and remitted

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Statement of Principles No. 51 of 2006

Statement of Principles No. 63 of 2013

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. Shirley Hutton is the widow of Clement Hutton, a veteran who served in World War II in the Pacific. Mr Hutton died as a result of a cerebrovascular accident (ie, a stroke) following a long history of hypertension. Mrs Hutton said her late husband’s service contributed to his death because the hypertension was at least partly the product of his excessive salt intake. She argued Mr Hutton acquired a taste for salt during the course of his service in the tropics. In those circumstances, she claimed she is entitled to a widow’s pension under the Veterans’ Entitlements Act 1986 (Cth).

2. In order to resolve this dispute, I must consider the kind of death the veteran experienced and determine if that death was war-caused. I am satisfied it was. I would therefore set aside the decision under review and decide in substitution that the late veteran’s death was war-caused and remit the matter to the respondent for assessment. I explain my reasons below.

   THE BACKGROUND

3. Mr Hutton served in the Army between 1942 and 1946. He served in New Guinea and Bougainville during that period. Both of these locations were hot: dehydration was an issue. There does not appear to be any dispute that Mr Hutton would have been supplied with salt supplements by the Army, and that he consumed a diet that included a lot of salt.

4. After he returned from war service, Mr Hutton was a cane-cutter and farmer. That is heavy work, and cane-cutting in particular is usually carried out in hot places.

5. Mr Hutton’s family members all gave evidence that he loved salt when they knew him after the war. He put salt on just about every dish at every meal. His favourite snack was a Sao biscuit with slices of cheese and tomato caked in salt. He even added salt to apples, porridge and rice. Mr Hutton’s daughters both said he would often argue that consuming salt was essential to avoid dehydration if one did heavy work in a hot climate.

6. Mr Hutton was diagnosed with hypertension in 1997. He died following a stroke on 14 July 2012. The death certificate recorded the cause of death as:

   ·Cerebrovascular accident (1 week)

   ·Cerebrovascular disease (approximately 10 years)

   ·Dementia (1 year) and

   ·Pneumonia (1 week).

7. There is no doubt the kind of death Mr Hutton experienced was death as a consequence of a cerebrovascular accident following a history of cerebrovascular disease, or hypertension. But was it war-caused?

   THE HYPOTHESIS

8. Mrs Hutton argued her late husband’s death from a cerebrovascular accident is connected to his service because the stroke was linked to hypertension, and hypertension was in turn linked to excessive salt intake – and Mr Hutton’s excessive salt intake was something that started and became established during the course of his service in the Army.

9. Mr Williams, for the Commission, argued there was no material pointing to Mr Hutton’s pattern of excessive consumption being referable to his war service. I acknowledge Mr Hutton was never asked to provide evidence on the question before he died; Mrs Hutton knew the young Clement before the war – they were family friends – but she did not marry him and become familiar with his diet until 1951. Mr Williams said the material pointed to Mr Hutton becoming a heavy salt user after the war while he was engaged in heavy agricultural work.

10. I satisfied there is material pointing to the applicant’s hypothesis:

    ·The applicant’s daughter, Ms Veronica Hemmett, recalled visiting her grandmother’s home in Ipswich. Ms Hemmett was a small girl at the time. She had a clear recollection that her grandmother’s food was not as salty as that prepared by their mother. She said in her oral evidence that she watched her grandmother and mother prepare food and noted her mother used much more salt – and that the salt shaker was always prominent on the dining table at home while they grew up while it was not as obvious on their grandmother’s table. Mrs Hutton gave oral evidence that was consistent with Ms Hemmett’s observation. The evidence suggests Mr Hutton’s salt preference was not a product of his own mother’s cooking, and that he was not an excessive salt user when he lived with her before the war.

    ·There is historical evidence from Dr Palazzo (exhibit 2) to the effect that troops in the tropics were provided with salt supplements and ate salt-laden food.

    ·Mrs Hutton recalled in her oral evidence that her late husband always used salt in his meals, and always wanted salt on the table – from which I infer he had an active taste preference for a high salt intake since at least 1951 when she married him.

    ·Ms Hemmett recalled she would argue with her father about his salt intake later in life. He typically justified it with reference to his stated belief that salt was necessary for someone doing hard physical labour. She did however recall in her oral evidence at least one occasion where he cited his experience in the tropics during World War II. That evidence provides a direct link between Mr Hutton’s consumption of salt during the war and his preference for salt later in life.

11. The next step is to identify the relevant statements of principle (“SoP”s). The SoP relating to cerebrovascular accident is No 51 of 2006. Factor 6(a) refers to “having hypertension at the time of the clinical onset of cerebrovascular accident”. The latest iteration of the SoP relating to hypertension is No 63 of 2013. The SoP sets out the criteria which must be met before a reasonable hypothesis linking hypertension and the veterans’ relevant serve can be made. In particular, factor 6(c) refers to:

    consuming at least 12 grams (200 millimoles) of salt per day on average for at least the six months before the clinical onset of hypertension;

12. I am next required to consider whether the evidence in relation to Mr Hutton’s salt intake fits within the template provided by the SoP. I am satisfied it does. Mr Hutton was clearly adding in excess of 12 grams of salt to his snacks and meals every day in the period before (and after) he was diagnosed with hypertension. That much is clear from the oral evidence of Mrs Hutton and her daughters. But there is also evidence suggesting the pattern of consumption can be traced back to Mr Hutton’s war service. In particular:

    ·The oral evidence from Mrs Hutton confirmed the pattern of heavy salt consumption persisted throughout their married life from 1951 (she said in her oral evidence that his diet never really changed);

    ·The oral evidence from Ms Hemmett confirming the late veteran’s mother did not heavily salt food she prepared, suggesting the veteran had not acquired a taste for salt before the war; and

    ·the oral evidence from Ms Hemmett that her father justified his salt consumption on at least one occasion with respect to his experience in the tropics during the war.

13. I acknowledge it is possible Mr Hutton consumed salt during the war and then broke the pattern following his discharge only to re-establish the pattern once he was married and engaged in heavy physical labour in a hot climate. But that seems unlikely given the oral evidence of Ms Hemmett. In any event, I am satisfied the evidence of a link between Mr Hutton’s service and his salt consumption leading to hypertension has not been disproved.

    CONCLUSION

14. The decision under review is set aside. I decide in substitution that the late veteran’s death was war-caused. The matter is remitted to the respondent for assessment.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 23 December 2013

Date of hearing	17 October 2013
Date final submissions received	12 November 2013
Counsel for the Applicant	Mr A McLean-Williams
Solicitors for the Applicant	Terrence O'Connor
Advocate for the Respondent	Mr B Williams