John and Repatriation Commission [2009] AATA 36 (20 January 2009)

Last Updated: 20 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. 2007/3061

VETERANS’ APPEALS DIVISION		)
	Re		EDNA JOHN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Date 20 January 2009

Place Sydney

Decision

The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant is entitled to a war widow’s pension, with the date of effect being 21 August 2005.

....................[sgd]...................
Dr J D Campbell

Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – war widows’ pension – kind of death – ischaemic heart disease – hypertension – salt supplements – veteran’s hypertension was war-caused disease – veteran’s ischaemic heart disease was war-caused disease – applicant entitled to war widows’ pension – decision under review set aside

Veterans' Entitlements Act 1986 – Section 119

Lowerson v Repatriation Commission (1994) 50 FCR 252

Statement of Principles Concerning Ischaemic Heart Disease No. 89 of 2007

Statement of Principles Concerning Hypertension No. 35 of 2003

REASONS FOR DECISION

20 January 2009

Dr J D Campbell, Member

1. Mrs John lodged a claim for a war widows’ pension on 21 November 2005. Mrs John married Mr Lisle John on 24 April 1943. Mr John had operational service in World War II during the period 18 June 1942 and 15 March 1946. Mr John died on 27 September 1981. The cause of death listed on Mr John’s death certificate was left heart failure (days), myocardial infarction (days) and hypertension (years).
2. The Repatriation Commission on 26 November 2005 was satisfied that Mr John’s death was due to ischaemic heart disease, but was unable to relate the ischaemic heart disease to his service and concluded beyond reasonable doubt that the death is not service related. The matter was further considered by the Veterans’ Review Board who, in time, affirmed the Repatriation Commission decision of 26 November 2005 that the death of Mr John was not war-caused.

ISSUES

3. The issues in this matter are:

• What kind of death did Mr John suffer? and
• Was Mr John’s death war-caused? and
• Is Mrs John entitled to a widow’s pension.
  

EVIDENCE OF MRS JOHN

4. Mrs John is an elderly person who experienced some difficulty in presenting oral evidence because of spasms. Mrs John recounted the history of her relationship with Mr John, who she first met in 1941, married in 1943, moved to live with in Darwin from 1946 to 1953 and thereafter in Sydney until his death in 1981. Mrs John detailed her evidence in two written statements and in oral evidence with the degree of clarity expected of events occurring over a seventy year time frame, namely some uncertainty and hesitancy over some aspects of chronology in relation to Mr John’s employment activities in Sydney between 1953 and 1961, when he joined the Sydney County Council.
5. Mrs John detailed meeting Mr John in 1941, marriage in Tamworth in 1943 and rejoining Mr John in Darwin in 1946 on his discharge from the army. Mrs John recounts Mr John’s work with the Inland Mission, owning a café and working in a bakery between 1943 and 1953. Mrs John was unaware of any unusual dietary habits of Mr John prior to marriage, but during the war years received correspondence from Mr John that he was taking daily salt tablets. Mr John continued to consume two salt tablets every day as well as added salt with meals.
6. Mrs John stated that on returning to Sydney in 1953 Mr John no longer consumed salt tablets, but in turn continued to heavily salt his food. Mrs John remembered Mr John buying a cruet set in 1954 and thereafter using the cruet salt spoon instead of a shaker to salt his food. Mrs John described how Mr John would use two cruet salt spoonfuls sprinkled over his food and one cruet spoonful of food on the side of his plate at breakfast and dinner. Mrs John also stated that Mr John would add salt to the already salted fish and chips that they would often have for lunch, as well as adding salt at lunch time to similar foods. Mrs John stated that she would add salt to all meals she cooked. Mrs John also stated that Mr John often loved to have celery with salt.
7. Mrs John stated that in 1961 Mr John joined the Sydney County Council, and during an insurance medical associated with that employment Mr John was told he had high blood pressure. Mrs John said her husband was treated for high blood pressure by his treating medical practitioner in Mosman from that time until his death in 1981. Mrs John also noted that Mr John had a cerebral thrombosis in 1968 and that he reduced his salt intake a bit after being diagnosed with hypertension in 1961.
8. Mrs John recounted that Mr John owned and operated a lawn mowing business in Mosman in the year prior to joining the Sydney County Council, and that during this period she did not observe him eating his breakfast as he prepared and consumed such early, associated with an early start for the day. Mrs John said Mr John continued to add salt in similar amounts to what she had earlier described to meals she prepared for Mr John during this period.
9. In further evidence Mrs John was shown two spoons and stated that the scoop of the spoon admitted into evidence was about the size used by Mr John, while the scoop of the other spoon was smaller.
10. During the hearing a sealed plastic bag containing an attested 12 grams of salt was entered into evidence (Exh A7). During the hearing, in front of both parties, I broke the seal and satisfied myself that each level scoop of the spoon in evidence contained one and a half grams of salt approximately (8 level scoops per 12 grams), while a level scoop of the spoon not admitted into evidence was less and in the order of 1.2 grams. I would also note that Mrs John when shown the 12 gram packet of salt concluded prior to seeing the spoon in evidence, that the spoon used by Mr John would need more than five or six level scoops to deplete the 12 grams of salt in its entirety.
11. Finally, I would note that in her second statement Mrs John records her method of salting the food during cooking and also the need to purchase salt on a monthly basis because of usage.

CLINICAL EVIDENCE

12. Dr Butler, a consultant physician, in his report dated 23 May 2008 (Exh A5), confirmed that if Mrs John recalls Mr John being treated for hypertension in 1961, and for such treatment to have been undertaken, a diagnosis of hypertension would have been made on blood pressure readings of 150/100 or higher, while readings of 140/80 would have been viewed as suspect for life insurance in relation to superannuation.
13. A report prepared by Dr Volker, a consultant dietician, dated 25 October 2008 (Exh A8) details the following:

• Australian serviceman’s intake of salt from army rations (1939-1945) consumed was 12.6 grams of salt per day plus discretionary salt tablets.
• That the sources of sodium intake are (on average):
  • ← Sodium naturally occurring in foods (18.5%)
  • ← Sodium added during processing (58.7%)
  • ← Sodium added during cooking (6.0%)
  • ← Sodium added at the table (9.0%)
  • ← Sodium in non-salt additives and in water (7.8%)
• Intake of sodium chloride (salt) in Australian army rations and the use of salt tablets suggests that servicemen would have been accultured to a high sodium chloride intake, with any measurement of urinary excretion of sodium reflecting food and taste preference (habitual intake).
• That the recommended amount for sodium requirements per day is 1.5 to 1.75 grams of sodium chloride.

CONSIDERATION AND FINDINGS

14. In this matter I am mindful of the provisions contained under section 119 of the Veterans’ Entitlements Act 1986. I recognise that there are difficulties in this matter that arise as a consequence of the passage of time (the adequacy, accuracy and the difficulty in quantification that Mrs John has in recalling events of 40 to 50 years past), the absence of relevant clinical records of Mr John (medical practice records not available). Further, I appreciate the particularity of causative factors nominated in the Statement of Principles (SoP) which define issues in specific quantitative terms, which require recall of material of precise definition – this being an attribute of few when attempting to recall factual circumstances of some forty to fifty years past. I also have given consideration to the issue of drawing inferences from a history of constant behaviour patterns (Lowerson v Repatriation Commission (1994) 50 FCR 252).
15. I recognise that Mrs John is 85 years of age. I acknowledge that she was genuine and honest in attempting to answer the questions asked of her. Further, I accept the answers that she has given and, in particular, the material relating to Mr John’s salt intake and her endeavours in relation to the bowl size of the spoon.
16. In addressing the particular issues in this matter I observe that my first task is to establish the kind of death Mr John suffered. Such a finding must be made on grounds of reasonable satisfaction. In this matter I am satisfied on the balance of probabilities that the kind of death suffered by Mr John in 1981 was Ischaemic Heart Disease. In making such a finding I rely upon the death certificate which details cause of death as myocardial infarction with left heart failure. Further, the Mosman Community Hospital notes for his terminal admission include entries to such effect by his attending consultant clinician, Dr Roy.
17. In addressing the issue whether Mr John’s death from ischaemic heart disease was war-caused I note the hypothesis postulated, namely Mr John’s ischaemic heart condition was caused and/or contributed to by his hypertension, which in turn was caused and/or contributed to by his ingestion of salt.
18. Having reviewed all the material I am satisfied that there is material pointing to each element of the hypothesis, and that the hypothesis is neither speculative, nor remote, nor fanciful.
19. In considering whether the hypothesis is a reasonable hypothesis I note that there is an SoP Instrument No. 89 of 2007 concerning ischaemic heart disease. Further, I note there is an SoP Instrument No. 35 of 2003 as amended, concerning hypertension.
20. In addressing SoP No. 89 of 2007 concerning ischaemic heart disease I note that factor 6(a) states:

having hypertension before the clinical onset of ischaemic heart disease;
...

21. In this matter I am satisfied that there is material pointing towards Mr John having hypertension in 1961, some many years before the clinical onset of ischaemic heart disease.
22. In addressing SoP Instrument No. 35 of 2003, as amended, concerning hypertension I note factor 5(c) which states:

ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension;
...

23. I observe that paragraph 8 of the same SoP No. 35 of 2003 defines—

“salt supplements” means salt added to food when cooking or eating, or salt contained in salt tablets.

24. Following consideration of all the material I note that such material points to the following:

• That while serving in the army Mr John consumed 12.6 grams of salt with the material pointing to salt supplements of 0.76 grams (6% of 12.6), added during cooking, 1.13 grams (9% of 12.6) added at the table, plus at least two salt tablets – which equates to salt supplements of 1.89 grams and two salt tablets per day.
• That while residing in Darwin between 1946 and 1953 Mr John at least maintained his level of salt consumption, with some material pointing to an increase in daily supplements in the form of adding salt at the table while continuing to take two salt tablets per day.
• That from 1954 to 1960 there is material pointing to increased addition of salt by Mr John at breakfast and dinner, with the material pointing to Mr John adding three spoon scoops of salt at each of these two meals. There is also material pointing to each level scoop amounting to one and a half grams of salt. There is also material pointing to Mr John adding liberal amounts of salt to his lunch time meals – often being fish and chips, and even to his corn beef sandwiches. Further, there is material pointing to his significant consumption of celery, which he consumed with salt.
• Further, I observe that there is material pointing to Mrs John’s addition of salt during the cooking/preparation of all meals and the need to undertake monthly purchases of salt.
• Similarly, there is material pointing to Mr John ingesting significant quantities of salt supplements since commencing in the war and continuing thereafter in Darwin and in Sydney, with some reduction after being diagnosed and treated for hypertension some time after 1961. The material also points to Mrs John being consistent in her approach to adding salt in the cooking process and in the preparation of other meals/snacks.
• That the material points to the clinical onset of hypertension in late 1961.
• That in the six months prior to the clinical onset of hypertension the material points to Mr John working in a lawn mowing business, with Mr John preparing/purchasing his breakfast/lunch. There is material pointing to his still having a cooked breakfast, with there being an absence of material pointing to any change to his habits in relation to the use of salt supplements at that time.

25. Following a review of the material I have outlined, I am satisfied that there is material pointing to Mr John ingesting an average 12 grams of salt supplements per day, namely six level scoops of salt (nine grams), at least 0.72 grams of salt added during cooking plus a significant, but not accurately quantifiable, amount consumed with lunch and other eating activities (snacks, celery).
26. As a consequence of the outlined material I am satisfied that there is material pointing to each element of factor 5(c) in SoP No. 35 of 2003, as amended, concerning hypertension. To be more specific, there is material pointing to and congruent with elements of the SoP, namely material pointing to Mr John’s clinical onset of hypertension in 1961 and his average daily ingestion of 12 grams of salt supplements for a continuous period of six months prior to the clinical onset. In such circumstances I conclude that a reasonable hypothesis exists, linking Mr John’s hypertension with ingestion of salt supplements, the ingestion of such salt supplements arising from a habit evolved during operational service as a consequence of a high salt intake from army rations, together with the daily ingestion of salt tablets.
27. In examining the factual issues in this matter I note that I have already referred to difficulties in ascertaining adequate and actual details of circumstances of issues dating back more than 50 years. Nevertheless, a detailed examination of the material before me does allow me to find beyond reasonable doubt any facts which are inconsistent with the facts that constitute the hypothesis or any other facts which, if proven beyond reasonable doubt, would disprove the hypothesis beyond reasonable doubt. In such circumstances I conclude that Mr John’s hypertension is a war-caused disease.
28. In completing the analysis I observe that there is material pointing to Mr John suffering from hypertension prior to the clinical onset of ischaemic heart disease. I observe that such material points to, and is congruent with, each element of factor 6(a) of SoP No. 89 of 2007 concerning ischaemic heart disease. I conclude that a reasonable hypothesis exists, linking Mr John’s ischaemic heart disease with his war-caused hypertension. Consequent to a careful examination of all the material, I am unable to find beyond any reasonable doubt any facts which are inconsistent with the facts constituting the hypothesis, or any facts proved beyond doubt which would by their existence disprove beyond reasonable doubt the hypothesis. In such circumstances I conclude that Mr John’s ischaemic heart disease is war-caused.
29. In the light of the finding that the kind of death suffered by Mr John was war-caused I conclude by determining that:

(a) The decision under review be set aside; and

(b) Mrs John is entitled to a war widows’ pension; and

(c) The date of effect is 21 August 2005.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: ................[sgd]................................................................

Associate

Dates of Hearing 30 September, 4 December 2008

Date of Decision 20 January 2009

Counsel for the Applicant Ms E Wood

Solicitor for the Applicant Ms J Buss, Legal Aid Commission of NSW

Solicitor for the Respondent Mr M Snell, Sparke Helmore