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Administrative Appeals Tribunal of Australia |
Last Updated: 11 February 1999
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION ) |
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Re |
George Harold WELLINGTON |
Applicant
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And |
REPATRIATION COMMISSION |
Respondent
Tribunal |
Mrs Joan Dwyer, Senior Member |
Mr A Argent, Member
Decision
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - operational service - diverticular disease - whether war-caused - application of procedure explained by Full Court in Deledio - application of the relevant Statements of Principle (SoP) - whether reasonable hypothesis is consistent with template found in SoP - evidence of low dietary fibre as causative factor to onset of diverticular disease - failure of SoP to recognise low fibre diet as a reasonable hypothesis connecting the onset of diverticular disease with service - alternative hypothesis considered - claim upheld on basis of inability to obtain appropriate clinical management.
LAW REFORM - suggestion that SoP for diverticular disease of the colon requires review to accord with uncontested medical evidence.
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 49 ALD 193
Veterans' Entitlements Act 1986 s 120(1) and (3), 120A(3)
2 February 1999 |
Mrs Joan Dwyer, Senior Member Mr A Argent, Member |
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1. This is an application for review of a decision of the Repatriation Commission made 19 December 1996 and affirmed by the Veterans' Review Board ("the Board") on 28 April 1998 which decided that the Mr Wellington's diverticular disease of the colon ("diverticular disease") was not a war-caused disease within the meaning of that term in the Veterans' Entitlements Act 1986 ("the Act").
2. Mr De Marchi appeared for Mr Wellington. Mr Nyhoff, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Wellington gave evidence. Evidence on his behalf was also given by Mr Marshall who is a surgical gastroenterologist. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.
3. The sole issue before the Tribunal was whether or not Mr Wellington's diverticular disease was a war-caused disease within the meaning of that term in s 9 of the Act. As Mr Wellington had operational service the relevant standard of proof is that set out in ss 120(1) and (3) of the Act which provide as follows:
120. (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.
Note: This subsection is affected by section 120A.
(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.
4. Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. As Mr Wellington's claim in respect of diverticular disease was lodged on 5 July 1996, s 120A applies. Sub-section 120A(3) provides as follows:
(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.
5. There is a Statement of Principles ("SoP") in respect of diverticular disease. It is Instrument No 67 of 1994 as amended by Instrument No 87 of 1997.
6. The SoP is short, so, we set it out in full, except for the definitions of "ICD code" and "scleroderma" and which are not relevant to this matter.
1. Being of the view that there is sound medical-scientific evidence that indicates that diverticular disease of the colon and death from diverticular disease of the colon can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diverticular disease of the colon or death from diverticular disease of the colon with the circumstances of that service, are:
(a) suffering from scleroderma before the clinical onset of diverticular disease of the colon; or
(b) changing to a diet at least 50% lower than usual in dietary fibre for that person, for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon; or
(c) inability to obtain appropriate clinical management for diverticular disease of the colon.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (c) must be related to any service rendered by a person.
3. The factors set out in paragraphs 1(b) and (c) apply only where:
(a) the person's diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4. For the purposes of this Statement of Principles:
"diverticular disease of the colon" means the clinical consequences of a herniation or sac-like protrusion of the colonic mucosa and the submucosa through the muscular coat of the colon, attracting ICD code 562.1;
7. In approaching our task it is necessary to bear in mind the guidance given by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as to the application of SoPs. The Full Court at p205 approved the following passage from the reasons of Heerey J:
The particular claim ... 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 an 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.
8. The Full court in Deledio at p206 set out the course which the Tribunal is to take where the reasonable hypothesis standard of proof applies and where there is a relevant SoP:
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) ... .
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.
STEP 1
9. According to the Full Court in Deledio the first step is to consider all the material before the Tribunal in order to determine whether it points to a hypothesis connecting Mr Wellington's diverticular disease with the circumstances of his service. Mr Wellington served in the Royal Australian Navy from 19 February 1942 to 22 February 1946. He joined HMAS Shropshire on 14 December 1942 in the United Kingdom and served in her until 13 February 1946. Mr Wellington prepared a statement which is included in the T documents (at T2 p14) describing the 15 operations and battles in which Shropshire was involved as a RAN cruiser during World War II. Mr Wellington served in Shropshire throughout that period. That service included four battle tours.
10. The duration of Shropshire's four battle tours ranged from 94 days at sea to 260 days at sea. Mr Wellington said that from the start of a tour the crew had no land leave and did not disembark until the completion of the tour. In all, over the four tours, he served an aggregate of 651 days at sea on battle tours. Shropshire was actively involved in battle on many occasions. It was the only RAN cruiser in World War II not damaged or sunk. None of its 1280 men were lost in action.
11. There was a considerable amount of material before the Tribunal describing the difficult conditions of service in Shropshire and the problem of feeding 1280 men on a ship which had cramped food storage facilities, during battle tours of 3-8 months duration. The T documents included detailed statements from Mr Wellington and from Mr Matthews who was a leading cook in Shropshire, (T4 pp23-26), and Mr Wakeham and Mr Trigg who also served with Mr Wellington.
12. Mr Matthews in his statement pointed out that although HMAS Shropshire and HMAS Canberra were dimensionally equal the complement of Shropshire was 1280 officers and men, which was 57% more than those serving in Canberra. He explained that the reprovisioning was all done by supply ships sailing north from Sydney to the battle line ships. He estimated the voyage as seven days sailing to New Guinea. Mr Matthews quoted passages from the reports of Captain Nichols, Captain of Shropshire and Captain Buchanan, Captain of HMAS Arunta, which was part of the same task force as Shropshire. Mr Matthews referred to a note at p537 of "Royal Australian Navy", G Hermon Gill, 1942-45, stating that Captain Nichols made representations regarding the problems associated with the supply of fresh vegetables and Arunta reported one case of scurvy. Mr Matthews referred to problems with the storage of fresh fruit and quoted the following passage from Gill's history at p103:
The refrigerating space of U.S.S. Phoenix (9,700 tons) was at least twice that of H.M.A. ships Australia or Shropshire (10,000 tons), and nearly three times that of Hobart (7,105 tons). The average R.N. and R.A.N. cruiser could carry meat for 16 to 18 days, and butter for 28 to 30 days, but seven days was the absolute limit for fresh fruit and green vegetables; while eggs, when taken into the tropics, had to be used as quickly as possible because of lack of storage facilities.
13. Mr Matthews referred to the difficulties facing cooks in trying to make appetising meals out of the canned and dehydrated foods on board. He wrote that headaches, loss of appetite, skin, stomach and bowel complaints were common problems.
14. Mr Wakeham provided a statement dated 7 June 1996. He was then the Federal President of the HMAS Canberra - HMAS Shropshire Association. He served with Mr Wellington in Shropshire. He wrote that during the Leyte invasion food was short and Shropshire ran out of meat and vegetables. When the ship arrived back at the operational base in the Admiralty Islands there was just one day's food left. During 41 days in the Leyte area the ship's cooks had prepared 52,480 meals mostly under very difficult conditions. Mr Wakeham wrote about Mr Wellington:
George Wellington's normal duties were as a member of the catering staff. ....
Wellington was not a robust man and the handling of food in such quantity seemed to affect his appetite - he was a very poor eater. I have seen him endeavour to eat a meal and then end up bringing it up soon afterwards. On occasions, I went ashore with him but unlike others, he would not be interested in a restaurant meal and a few drinks.
15. Mr Trigg, who also served with Mr Wellington, subsequently became a consultant general surgeon. He wrote:
Background History
Mr. Wellington served in the Royal Australian Navy during World War II as an officers' steward, mostly in the heavy cruiser HMAS "Shropshire", from late 1942 until 1946.
For much of that period, "Shropshire" served in the Pacific area, with long periods at sea, resulting in difficulties in replenishment of supplies, particularly with fresh food, fruit and vegetables etc.
"Shropshire" was the only ship in the Royal Australian Navy with a cafeteria style system, where the crew were fed, but over lengthy periods while closed up at action stations, crew members often were compelled to take makeshift snacks at their action stations.
The longest battle tour, in which most enemy action was experienced, extended from 30/6/44 until 16/3/45, during which time the ship was at sea for eight and a half months without tying up alongside a wharf, so that any supplies obtained were by supply ship only. Often stocks of food ran low, and in particular there were often lengthy periods without fresh fruit and vegetables.
Much of the food available for lengthy periods was canned or dehydrated, the bread baked on board was invariably white, not wholemeal, and chronic constipation was a common complaint among crew members. The latter may also have been contributed to by fluid loss associated with constant sweating.
Mr. Wellington recalled that in his capacity as an officers' steward, his own meals very often consisted of sandwiches only, eaten at irregular intervals. He also, as a consequence of extremely hot conditions below decks, suffered from repeated heat rash and carbuncles associated with heavy sweating.
HMAS "Shropshire" operated during World War II almost exclusively in tropical areas, and as the ship was an older type cruiser, laid down in 1926, [it] was unsuited for tropical service in so far as crew comfort was concerned. Conditions below decks were oppressively hot in the absence of any type of airconditioning and with closed portholes while at sea.
Mr Wellington claimed that he often had a depressed appetite, exacerbating his poor diet.
Relationship of service conditions to diverticular disease
Current medical literature suggests a causative link between a low residue diet and the incidence of diverticular disease of the colon. For example, the disease is uncommon in African and Asian communities where high residue diets are usual, but is a common disease in Western countries, where refining of foodstuffs results in removal of much natural fibre. It is also uncommon in vegetarians. Intra colonic pressure varies with the bulk of faecal residue. Lengthy periods - ie. Of several months' duration - of relatively low residue diets available to crew members of ships under war service conditions, may have contributed to the onset of diverticular disease. [emphasis added]
16. Mr Wellington said that he found that the food during service at sea did not agree with him. It was usually canned food or dehydrated food. Even when fresh vegetables were taken on board, they had always been brought by supply ship from Sydney. By the time they reached HMAS Shropshire they were no longer fresh and had to be consumed quickly. He said that the further Shropshire was from Sydney the less fresh the vegetables were. No fresh fruit was provided except for one occasion in the United Kingdom when he could remember one orange per man being supplied.
17. Another dietary problem arose as a result of the requirements of Mr Wellington's action station which was in the 8 inch gun magazine five levels down. When Shropshire closed up for action, he and the other 19 men at that action station were down in the magazine for 21 hours. They were closed in. The trap door by which they entered could only be opened from outside. Those 20 men would have to spend 21 hours in a very confined space and would have no means of relieving themselves. Mr Wellington dealt with this problem by eating and drinking very little when he knew he would be required to go to action stations. He said (T docs p49)
It was essential, (particularly in my case), to make sure there would be no need to go to the toilet.
When we left the magazine we were advised the time we would be "closing up" next morning. An empty bladder and bowels was therefore essential before "closing up" in the magazine again.
Close range and anti aircraft gun crews on the upper deck and super structure kept buckets handy.
In the magazine we could not do that for health reasons and the fact that it was a serious offence to take anything steel into the magazine capable of causing a spark.
Therefore I refrained from eating with the exception of a slice of bread and a sip occasionally of weak black tea at action stations.
Mr Wellington said that on one voyage to the Philippines there was a period of a week when the ship was closed up for 21 hours out of every 24. The T documents (p24) show that during the two weeks 20 October 1944 to 3 November 1944 the crew of Shropshire was at action stations 72% of their time
18. Mr Wellington in a document dated 25 September 1997 (T13 pp55-59) described his pre-service diet. He wrote that he was born on a farmlet near Bendigo and that being one of 11 children of a miner they had a very simple lifestyle growing most of their own fruit and vegetables, keeping their own cows, pigs, fowls, geese and ducks.
19. In evidence Mr Wellington said that he missed fresh fruit and vegetables. He found the tinned, canned and fried food served in Shropshire very unappealing and he lost his appetite to some extent. He said he suffered constipation at times, had difficulty in eating and had very runny bowel motions particularly when he got back on his food after periods at action stations. He said he suffered from abdominal pain, diarrhoea and on some occasions nausea.
20. Mr Nyhoff took Mr Wellington to the sick records contained in his service documents. They show that he did not report any gastric problems such as constipation or diarrhoea during service in Shropshire. Mr Wellington responded that because of the large numbers of men on board, people only reported sick if they could not go on without urgently needed treatment. He said he felt that there was no treatment that could be given to him because it was not possible that his diet could be changed and he did not want to be "sent south". He wrote (T docs p48):
Bearing in mind that it was necessary, at times, to draft people with problems ashore when the ship returned to Australia, my visits to the sick bay were therefore kept to a minimum. To have been drafted ashore would have been a psychological disaster.
21. Mr Wellington said that after his discharge he had a significant anxiety problem and he also continued to suffer from stomach trouble. He attended his general practitioner, Dr Ross Cameron. In about 1950, Dr Cameron suggested that he make a claim for gastritis and sinusitis to be accepted as service related. He did so but the claim for gastritis was not accepted. He said the doctor who examined him said that he was "too young to suffer from gastritis." The claim for sinusitis was accepted. A claim for anxiety neurosis was accepted in 1960. In a written submission Mr Wellington wrote:
It is documented by D.V.A. that I made a dual claim in 1950 for headaches and gastric problems. Dr. Ross Cameron was my L.M.O. then.
I was diagnosed as having sinus trouble and accepted.
In regard to gastric problems the examining doctor scoffed at my claim. In his report he intimated - "It appears he becomes sick after drinking alcohol" - Regrettably the doctor did not mention that I became ill after consuming very small amounts.
When I first went to Dr. Cameron Snr. In the early 50's I thought I was suffering appendix pains, he explained to me that although they were on the right hand side they were not appendix related.
From then on whenever I endured same, I took some antacid. Knowing they were not appendix I saw no point in running to the doctor unless they did not cease or became more acute.
22. So far as the evidence before the Tribunal shows, Mr Wellington was not diagnosed as suffering from diverticular disease of the colon until 1977 when he was diagnosed with diverticular pains for which he was kept under observation at the Royal Melbourne Hospital. But his evidence and the statement of his sister-in-law Rita Clout (A3) establish that he was suffering problems with his appetite and with his bowels even during service. They both remember him frequently having to leave the table to go to the toilet in the middle of a meal when he was visiting his wife and her family on the occasions he was on shore leave in Sydney. Mrs Clout stated that Mr Wellington told her family that he had great difficulty eating the food at sea. Mr Wellington said he had an urgency problem with his bowels during service and that problem had continued since service. He attended his treating general practitioner for gastric problems. The earliest record of such problems before the Tribunal is Dr Ross Cameron's note of 6 October 1952:
Symptoms of dyspepsia - fullness in stomach slight epigastric tenderness - no relation to diet - fullness over thyroid.
However Mr Wellington explained that some of Dr Cameron's early notes had been lost. Exhibit R2 does show that Mr Wellington was medically examined in respect of a claim for gastritis on 13 September 1950.
23. The primary hypothesis relied on by Mr De Marchi was based on the report of Mr Marshall dated 29 September 1998 (exhibit A1). Mr Marshall wrote:
The cause of diverticular disease (diverticulosis, progressing to inflammation of the diverticula to produce diverticulitis) is normally the result of a low fibre diet. Somewhat ironically it was thought until the 1960's that the proper treatment of diverticulitis was a low residue diet but the research of Burkitt and others then made it abundantly clear that the very reverse was true, and that the reason for the development of diverticula in the colon was muscle spasm caused by inadequate faecal bulk in the colon. Primitive races with a high fibre diet very seldom suffered from diverticular disease (and, one might add, they have very little cancer of the colon or appendicitis).
I therefore believe that there is every reason to accept that in this case the diverticula developed as a direct result of the low fibre diet which Mr Wellington ate during that protracted period. There was no possibility of him having any preventative treatment to avoid the development of these outpocketings on the large bowel, and once they had developed the presence of faecal material in the little pouches made the development of infection (diverticulitis) inevitable. I therefore believe that the entire subsequent progress of Mr Wellington was decreed from the time he was serving in the Shropshire and that the direct cause of his diverticular problems was the low fibre diet he consumed during that time.
There is nothing to indicate that Mr Wellington suffered from scleroderma before the clinical onset of his diverticular disease but he was quite certainly on a diet lower in dietary fibre during his service and in my opinion this is the complete and necessary circumstance which caused him to develop diverticular disease of the colon. In the Statement of Principals [sic] from the Repatriation Medical Authority it states that there has to be a "change to a diet lower in dietary fibre more than three months before the clinical worsening of diverticular disease of the colon". On this narrow definition it is clear that Mr Wellington might not have had diverticular symptoms but he is quite clear on his history that he did indeed have loose motions at times and constipation during his service.
At this late stage it is obviously impossible to go back in time and discover whether he did have provable diverticular disease at that time but one must keep in mind that the understanding of diverticular disease then was such that no one would have been likely to suspect the results of the low fibre diet. It was only 20 years later that conventional medical wisdom caught up with the facts.
It follows that in this particular case I believe the origin of diverticular disease as a direct consequence of conditions aboard the HMAS Shropshire should be accepted.
24. Mr Marshall is an extremely well qualified gastroenterologist having only recently retired as head of Surgical Gastroenterology at Prince Henry's hospital. He examined Mr Wellington on 29 September 1998. His opinion that the origin of Mr Wellington's diverticular disease was as a direct consequence of conditions in HMAS Shropshire is supported by extracts from medical texts and by the statement of Mr Trigg who served with Mr Wellington and later became a consultant surgeon.
25. Mr Wellington in his submission and statement in support of his application for acceptance of diverticular disease, quoted from a text book Diseases of the Gastro Intestinal Tract and Liver 2nd Ed 1989 (author not specified):
It has been postulated that diet plays a major role in the development of Diverticular disease, particularly as it is common only in countries where the diet is low in fibre.
The text Harrison Principles of Internal Medicine (1998) 14 Edition, Vol.2, The McGraw-Hill Companies, Inc. USA to which the Tribunal referred the parties during the hearing, states at p1648:
COLONIC DIVERTICULA Diverticular of the colon are herniations or saclike protrusions of the mucosa through the muscularis, at the point where a nutrient artery penetrates the muscularis. Diverticula occur most commonly in the sigmoid colon and decrease in frequency in the proximal colon. They increase with age, and the incidence ranges between 20 and 50 percent in western populations over age 50. The exact mechanism for their formation is unknown but may be related to an increase in intraluminal pressure. Thickening of the muscle coat of the colon in most patients with diverticula suggests the herniations of mucosa are caused by increased pressure produced by colonic muscle contractions. The rarity of colonic diverticula in underdeveloped nations has led to the speculation that diverticula result from the highly refined western diet, which is deficient in dietary fiber or roughage. It is proposed that such diets result in decreased fecal bulk, narrowing of the colon, and an increase in intraluminal pressure in order to move the smaller fecal mass. However, the role of dietary fiber in the etiology and treatment of diverticular disease remains to be determined. [emphasis added]
26. Bearing in mind the provisions of s 120(1) and (3) of the Act it would seem clear that, were it not for s 120A of the Act, the material before the Tribunal would have raised a reasonable hypothesis connecting Mr Wellington's diverticular disease of the colon with the circumstances of the particular service he rendered in HMAS Shropshire.
27. Step 1 as explained by the Full Court in Deledio is therefore satisfied.
STEP 2
28. As set out in paragraph 6 of these reasons there is a SoP in respect of diverticular disease.
STEP 3
29. As set out in paragraph 8, above the Full Court in Deledio said:
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.
30. As the Federal Court has said, s 120A(3) of the Act provides that a hypothesis is reasonable only if it fits the "template", to be found in the relevant SoP. The hypothesis raised by Mr De Marchi, which is based on the evidence of Mr Marshall does not fit the "template" because the template does not accept a diet with reduced dietary fibre as a factor connecting the onset of diverticular disease of the colon with service. It only recognises such a connection where a person's diverticular disease of the colon was contracted prior to a period, or a part of a period, of service to which the factor is related. The template specifies a change to a diet at least 50% lower than usual in dietary fibre for at least 90 days before the clinical worsening of diverticular disease of the colon, as a factor raising a reasonable hypothesis but only where the diverticular disease was contracted prior to a period, or part of a period, of service to which the factor is related.
31. Mr Marshall said that the diet on board HMAS Shropshire as described to him by Mr Wellington would have been "50% lower than usual in dietary fibre", if Mr Wellington had previously had a diet with fruit and plentiful fresh home grown vegetables. He said the diet as described consisting mainly of tinned and dehydrated foods contained almost no dietary fibre. He also said that the description of symptoms given to him by Mr Wellington established that Mr Wellington did have diverticular disease of the colon while serving in HMAS Shropshire.
32. Mr Marshall in his report and in his oral evidence and Mr Trigg in his written statement both said that a low fibre diet is considered to be a causative factor for diverticular disease of the colon in susceptible people. Mr Nyhoff did not call any medical witness who disputed that theory. Neither did he refer to any text contradicting it or suggesting that a low fibre diet was no more than an aggravating factor if a person already had existing diverticular disease of the colon. Nor did he refer to any material suggesting the existence of any other causative factor.
33. Mr Marshall seemed unable to understand why a change to a low fibre diet on service has not been recognised as a reasonable hypothesis connecting the onset of diverticular disease with service. He could not suggest any medical basis for the SoP only accepting it as raising a reasonable hypothesis where the disease was contracted prior to a period of service, or prior to part of a period of service, to which the low fibre diet is related.
34. On the evidence before us and considering the role of SoPs determined under s 196B(2) of the Act, we would have expected that the SoP for diverticular disease of the colon would have provided that a significant reduction in dietary fibre during service would raise a reasonable hypothesis connecting that disease with the particular circumstances of a veteran's service. Section 196B(2) provides:
. . . .
Determination of Statement of Principles
(2) 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.
35. The Tribunal was at a loss to understand why the significance of a low fibre diet has been recognised as a contributing factor to a clinical worsening of previously existing diverticular disease of the colon, but not to the onset of the disease. We intend to ask the District Registrar to send a copy of these reasons to the Repatriation Medical Authority. Perhaps they may prompt a review of the SoP.
36. Because of the SoP we were unable to make the straightforward finding we otherwise would have done, that the material before us raised a reasonable hypothesis connecting Mr Wellington's diverticular disease of the colon with the particular circumstances of his service. We were obliged to "deem" the primary hypothesis before us "not to be reasonable", although on the evidence before us it appeared eminently reasonable.
37. When Mr Marshall understood that the SoP did not recognise the connection of a low fibre diet with the onset of diverticular disease of the colon, he considered whether factors 1(b) or (c) could be said to apply to Mr Wellington. He said that his diverticular disease would have been contracted during an early period of service. Thus it could be treated as having been contracted prior to later periods of service. Factors 1(b) and 1(c) may therefore be considered in respect of later periods of service.
38. There is support for that analysis in the statement of Rita Clout which described Mr Wellington suffering symptoms Mr Marshall said were symptoms of diverticular disease during periods of leave in Sydney while serving in Shropshire. From Mr Wellington's statement (T documents p47) it is apparent that those periods would have been after June 1944. He wrote:
During my time in the service and since, I had no trouble going to the toilet. On the contrary, (and even to this day), when the need arose I never needed to loiter.
I met my wife when we arrived back from England in October, 1943 and we were married when I returned in June, 1994 [sic].
On the three occasions the ship, (HMAS Shropshire), returned to Sydney, after that, I spent all my free time with my wife at her parents' home.
My wife's parents were exceedingly gracious when I had to excuse myself from the meal table after the main course to go to the toilet on almost every occasion that I dined at their house.
39. We consider that approach does not assist Mr Wellington in respect of factor 1(b). We are aware of the guidance of the Full Court Deledio at pp204-205 where the Court approved a passage in the reasons of Heerey J, saying:
His Honour went on to observe (at 273) that "the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120 (1) and 120 (3) as expounded by the High Court in Bushell and Byrnes." Later his Honour said at 273:
Obviously enough, in determining an SoP the RMA is not concerned with the individual circumstances of a particular veteran. The SoP operates in the discourse of hypothesis -- a "tentative answer to a problem under study ..."
Heerey J added at 275:
... it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120 (1)) of the particular facts of a veteran's case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent -- so that the SoP can "uphold" the hypothesis. ... the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
We agree with each of these observations.
Heerey J further explained the relationship between ss 120 (1) and (3) and 196B (2) in a passage with which we concur as follows at 275:
Therefore when s 196B (2) says a factor "must ... exist" and "must be related to service", it is not interfering with the functions of ss 120 (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.
In our view, therefore, the learned primary judge correctly stated the questions of law to be addressed by the decision-maker in a case such as the present where the provisions of s 120 (3) and (1) are to be applied in the light of the 1994 amendments.
40. There were no facts raising the suggestion that Mr Wellington changed to a diet at least 50% lower than usual in dietary fibre for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon which was contracted prior to a period or part of a period of service. First there was no evidence of any change in the diet in HMAS Shropshire during the period of Mr Wellington's service save that on each voyage the further she was from Sydney the less fresh produce was served. That pattern and the very low fibre content of the food, due to the necessity to rely heavily on tinned and dehydrated foods continued throughout all tours. Similarly there was no evidence of any clinical worsening of Mr Wellington's diverticular disease of the colon during his service. There was evidence of the contraction of that disease and of it producing symptoms throughout Mr Wellington's service, and during periods of leave and after discharge. But there was no evidence of any worsening until the 1970's when Mr Wellington was first hospitalised due to severe diverticular pain. There was no material before the Tribunal raising a hypothesis in accordance with factor 1(b) of the SoP.
41. However we consider that a hypothesis based on factor 1(c) does not meet the same problems. Mr Marshall said that in his opinion Mr Wellington would have been unable to obtain appropriate clinical management for his diverticular disease of the colon once he had contracted that disease while serving in HMAS Shropshire.
42. Mr Marshall said that appropriate clinical management for the condition would have required a high fibre diet. In the 1940's doctors did not know the dangers of a low fibre diet.
43. The material before the Tribunal raises the hypothesis that Mr Wellington could not obtain that appropriate clinical management for a number of reasons. First, as Mr Marshall said, the state of medical knowledge was not then generally aware of the significance of a high fibre diet. Secondly, HMAS Shropshire, with 1280 men on board, did not have the refrigeration capacity or the food storage space to allow for adequate fresh fruit and vegetables to be carried to provide a more suitable diet, even if medical knowledge had recognised that need. Thirdly, on Mr Wellington's evidence, the circumstances of the involvement in battle tours meant that the prevailing culture was that you did not report medical problems unless they prevented you "going on". Fourthly, he said that he did not report problems with the diet, although he knew it did not agree with him, as he also knew nothing could be done about it in the circumstances of service in Shropshire. Fifthly, he could not report his dietary concerns to the one doctor on board because "to be sent south would have been psychological disaster." (T docs p48)
44. We are satisfied that the material raises the hypothesis that once Mr Wellington had contracted diverticular disease of the colon, which was apparent by June 1944, (T docs p47) he was unable to obtain appropriate clinical management for that disease. That hypothesis does contain one of the factors which the Repatriation Medical Authority has said must as a minimum exist and be related to a person's service before a hypothesis connecting diverticular disease of the colon with service can be said to be a reasonable one. We are satisfied that the third hypothesis considered in this matter is reasonable. Thus step 3 of the steps outlined by the Full Court in Deledio is satisfied.
STEP 4
45. We must next consider, under s 120(1) of the Act, whether we can be satisfied beyond reasonable doubt that Mr Wellington was not unable to obtain appropriate clinical management of his diverticular disease of the colon after he had contracted that disease. There is no material which would support such a finding.
46. Thus we find that Mr Wellington's diverticular disease of the colon is a war-caused disease and the claim must succeed.
47. That conclusion means that it is not necessary for the Tribunal to consider a fourth hypothesis suggested by Mr De Marchi, namely that Mr Wellington suffered from irritable bowel disease which could be connected with the circumstances of his service, as required by the relevant SoP No 103 of 1996.
48. Mr Marshall said that the symptoms of diverticular disease of the colon from which Mr Wellington suffered could also be described as symptoms of irritable bowel syndrome.
49. A similar argument to that we have accepted in regard to the failure to obtain appropriate clinical management for diverticular disease could be made, based on factor (f) in the SoP as to irritable bowel syndrome. However as we have already decided that the claim in respect of diverticular disease will succeed, we do not consider it appropriate to make a finding in respect of an alternative diagnosis of the same symptoms.
50. The decision under review will be set aside. In substitution we will decide that diverticular disease of the colon is a war-caused disease with effect from 5 April 1996 as agreed by the parties. It was also agreed that diverticular disease should be assessed at 5 impairment points on Table 6.1.3 of the Guide to the Assessment of Rates of Veteran's Pensions, 5th edition in accordance with Mr Marshall's report.
51. We indicated at the hearing that we proposed to remit the matter to the Repatriation Commission for assessment of the rate of pension payable to Mr Wellington with effect from 5 April 1996 taking into account the diverticular disease. We considered that it was not appropriate for the Tribunal to assess the rate of pension itself as Mr Wellington was also seeking an increase in the rate of pension payable in respect of previously accepted conditions. There was inadequate material as to assessment in respect of those conditions before the Tribunal. The parties requested that we reserve liberty to them to apply to the Tribunal for an assessment if at a later stage, after obtaining further material, that seemed to them appropriate.
52. We cannot both remit the matter to the Repatriation Commission and reserve liberty to the parties to bring the matter back to the Tribunal at some future stage. "The usual and appropriate course" as Heerey J said in Repatriation Commission v Brian Forrest, in his capacity as Deputy President of the Administrative Appeals Tribunal and Mathew Grundman FC 981316, 20/10/98, is to remit the question of assessment to the Commission under s43(1)(c)(ii) of the Administrative Appeals Act 1975. The matter will
be remitted to the Repatriation Commission for assessment taking into account the diverticular disease of the colon.
I certify that this and the 20 preceding pages are a true copy of the decision and reasons for decision herein of Mrs Joan Dwyer, Senior Member and Mr A Argent, Member
Signed: Anne O'Rourke
Associate
Date/s of Hearing 19 January 1999
Date of Decision 2 February 1999
Counsel for the Applicant Nil
Solicitor for Applicant Mr D De Marchi
Counsel for the Respondent Nil
Solicitor for the Respondent Nil
Departmental Advocate Mr E Nyhoff
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/1999/53.html