Swan and Repatriation Commission - [2000] AATA 663

DECISION AND REASONS FOR DECISION [2000] AATA 663

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/129

VETERANS' AFFAIRS DIVISION )
           Re      MURIEL SWAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Dr KP Kennedy, OBE (Member)
Major-General JN Stein, AO (Member)

Date7 August 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether veterans' death by (a) cerebrovascular accident (b) hypertension was war-caused – whether a reasonable hypothesis was raised connecting the veteran's cerebrovascular accident to hypertension, and hypertension to salt intake and service.
Veterans' Entitlements Act 1986 ss 120(1), 120A
Statement of Principles Instrument Nos 83 of 1995 and 142 of 1996

REASONS FOR DECISION

7 August 2000 Miss WJF Purcell (Senior Member) Dr KP Kennedy, OBE (Member) Major-General JN Stein, AO (Member)

This is an application for review of a decision of the respondent (the Commission) of 21 March 1998, which determined that the death of the applicant's husband Alexander Swan (the veteran) on 25 March 1996 was not war-caused for the purposes of the Veterans' Entitlements Act 1986 (the Act). The Veterans' Review Board affirmed this decision on 11 January 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with exhibits tendered by the parties. The applicant was represented by Mr Wall who called her son Mr Swan, the veteran's sister Mrs Goodsell, and Dr Goodwin, physician, as witnesses. Mr Robert Morison, a Departmental advocate, appeared for the Commission.
The veteran was born on 4 July 1912 and served in the Australian Army from 29 December 1941 to 11 January 1946. This service was operational service for the purposes of the Act, and the standard of proof is that of reasonable hypothesis in accordance with section 120(1) of the Act. Section 120 of the Act as far as is relevant for the purposes of this review provides:
"120 Standard of proof
(1)       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."
…
(3)       In applying subsection (1) or (2) 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.
Note:   This subsection is affected by section 120A."

The veteran died on 25 March 1986. The recorded cause of death being (a) right fronto-parietal cerebrovascular accident (b) Hypertension. The applicant lodged her claim on 18 February 1998, and section 120A of the Act applies. Section 120A as far as is relevant for the purposes of this review provides:
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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 operational service rendered by a veteran; …
…
(3)       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) or (11); or
(b)       a determination of the Commission under subsection 180A(2);
that upholds the hypothesis."
The applicant maintains that the veteran's death satisfies Factor 5 (a) of the Statement of Principle applicable to Cerebrovascular Accident. (No 142 of 1996, as amended by Nos 195 of 1996 and 85 of 1997). Factor 5(a) reads:
"Factor 5
5.        The factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are:
(a)       suffering from hypertension before the clinical onset of cerebrovascular accident; or
'Hypertension' is defined as:
          (a)a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg: or
          (b)       where treatment for hypertension is being administered, attracting an ICD code in the range 401 to 405 or 437.2 or 642;"

The relevant Statement of Principles concerning Hypertension is Instrument No 83 of 1995, and the applicant maintains that Factor 1(c) is satisfied, which reads:
"(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; or…"

The applicant contends that the veteran developed a service related salt habit. The onset of hypertension was some time in the period 1953 to 1963; and the veteran ingested an additional 12 grams per day of salt for at least six months immediately before the accurate determination of hypertension.
The Commission argues that ingestion of salt is a personal choice. Salt is not habituative, nor is it addictive. The veteran loved salt and ate salt. His salt habit was not causally related to his war service. There is no direct evidence that the veteran took salt tablets during his war service. It is speculative to contend that hypertension commenced as early as 1953, and it is questionable whether the veteran's salt intake reached the required level.
The veteran married in 1937, and his son Alexander, who gave evidence at the Hearing, was born in 1939. A second son was born in 1941, the year the veteran enlisted. Another son Bruce, who suffered from cerebral palsy, was born in about 1947/48. The veteran did not remain in his pre-war occupation, and not long after his discharge, his mother and sister, (Mrs Goodsell) set him up in a Fish Shop/Café business at Coolangatta, where they lived for some years until the veteran acquired a Milk Bar at New Farm in the mid 1950's.
Mrs Goodsell gave evidence that whilst they lived at Coolangatta her mother cooked lunch for the waitresses in the Kitchen of the café, and dinner for the veteran and Mrs Goodsell, when she helped there on a part-time basis. Mrs Goodsell said in evidence that the applicant, who lived above the café, cooked the meals for the three children who ate upstairs. The applicant suffered considerable ill health during this time, and on these occasions the veteran's mother cared for the children and cooked their meals.
Mrs Goodsell gave evidence that before the veteran enlisted his salt intake was what she described as "normal", but when he returned from the War the first thing she noticed was that he put too much salt on his meals. When shown a bottle containing a measured 12 grams of table salt, and asked how this quantity related to the amount the veteran used, she said initially, that this was an impossible question, but that he used "a lot of salt". When questioned further about the 12 gram sample, she said that no one would use that amount on their food.
Mrs Goodsell said in evidence, initially, that she was usually moving around while the veteran was eating his meal, but that she noticed the large quantity of salt he put on his meal. She said later, that she usually sat at the table with him while he ate his meal. She also said that she had never discussed with the veteran the fact that she thought he used excessive salt, nor did she discuss with him the reason he consumed so much salt. He had never made any specific reference to salt intake during his Army service.
The veteran's son said in evidence that the veteran never discussed his war service, and he could not say that the veteran took salt tablets when in the Army. He was aware that Army personnel had been encouraged to use salt tablets. His father complained that he was not well, and said that no one cared about him. The son said that all he knew was that the veteran ate a lot of salt, and that the meals he prepared were unpalatable because of the salt and the additives. The son agreed in evidence that it was the custom for fish and chips to be liberally sprinkled with salt.
The son gave evidence that he was of the opinion that the veteran would have used at least 12 grams of salt per day. He said that the veteran used salt on his porridge, but not on sandwiches. The veteran liked particularly salty foods such as fish and chips, ham and corned beef. The son said that the veteran cooked all the meals when his mother was ill, and that they were so salty that they were unpalatable; and that this took place at Wilston, even before the family moved to Coolangatta.
Dr Goodwin gave evidence that the troops were provided with salt tablets and were strongly encouraged to use salt tablets when in the tropics. There was no compulsion however, and not all the troops took the tablets.
We have examined the evidence carefully and in detail, and we have taken into account the parties' submissions. There is some conflict between the evidence of Mrs Goodsell and the veteran's son. It is not surprising that there is some level of inconsistency, as the son was aged 7 years in 1946, and Mrs Goodsell is now 83 years of age, and each is referring to observations allegedly made 53 years ago. The fact of this conflict however, does raise doubts as to the accuracy of their evidence.
There is no evidence that the veteran had used additional salt whilst in the Army. The veteran himself had never given any explanation for his alleged increase in the use of salt; nor had he referred to taking additional salt or salt tablets during Army Service. We have grave doubts about the reliability of the evidence regarding the veteran's salt intake after service. There is no evidence of increased intake during service. In any event we find that there is not sufficient evidence to satisfy us that there is a link between the veteran's service and any alleged increase in his consumption of salt.
We are not satisfied on the evidence that the veteran ingested an additional 12 grams per day of salt for a continuous period of 6 months immediately before the accurate determination of hypertension. Factor 1(c) of the Statement of Principle applicable to Hypertension is not satisfied; and thus Factor 5(a) of the Statement of Principle applicable to the Cerebrovascular Accident, is not satisfied. The hypothesis propounded by the applicant is not reasonable therefore.
We are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war-caused. The material before the Tribunal does not raise a reasonable hypothesis connecting the veteran's death with the circumstances of the particular service rendered by him.
For these reasons the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member), Dr KP Kennedy, OBE and Major-General JN Stein, AO, (Members)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 July 2000
Date of Decision  7 August 2000
For the Applicant  Mr J Wall
For the Respondent                 Mr R Morison, Departmental Advocate