4. More Horses Bolt

Let’s suppose you took 1000 people from Brisbane, and 1000 from Melbourne, and measured a whole set of parameters: height, number of children, whether they had skin cancer, high blood pressure, fallen arches, or what not. It is likely that there would not be a single match. But how would you know that the differences were due to the location, rather than just the luck of the draw?

Fear not, mathematicians have devised complex statistical formulae to determine the degree played by chance. In applying them, scientists traditionally adopt the 5% rule ie they accept that a difference is “significant” if there is no more than 5%, or one chance in 20, that the results are due to chance. This is an arbitrary figure, chosen as the happy medium between the dangers of rejecting a genuine difference, and the risk of accepting as genuine the mere result of random sampling.

However, even if the results are significant, there is still the question of interpretation. Suppose, for example, you found that significantly more of the Brisbane sample suffered from skin cancers and solar keratoses (“sun spots”). You might assume that it was due to the greater amount of sunlight in Brisbane – and you would probably be right. But there are still other possibilities. Perhaps Melbourne has a higher proportion of people of southern European ancestry, whose olive skin is more resistant to sun damage. Or perhaps more retirees have moved to Brisbane, and old people, by their very nature, have had longer exposure to the sun.

Confounding factors such as these lurk in nearly every study, sometimes where you least expect it. Scientists, therefore, always attempt to compare their study group with a “control group”: one which is identical to the study group in every detail likely to be relevant except the one under consideration. In practice, this is often very difficult to achieve. Experience shows that bad habits tend to run together eg people who eat too much often drink too much, and smoke, and fail to exercise, and all of these behaviours vary with social class and location. On the other hand, if you wanted to see whether giving up smoking reduces the risk of a certain disease, it is no use simply comparing smokers, never-smokers, and ex-smokers. Many ex-smokers have given up because they were sick.

I mention all this because most people haven’t a clue how epidemiologists determine the causes of disease. Most journalists are equally ill-informed. Yet every week you will read in the paper, or a popular magazine, of a recent study which shows that X causes/cures/prevents cancer/diabetes/ingrown toenails, or whatever. In almost every case, the results are merely tentative. They are based on a preliminary investigation, and more detailed, more controlled studies with much larger sample sizes will now be required to validate it.

One other source of inaccuracy is often overlooked. If you are using the 5% or one in twenty rule of significance, and you perform twenty tests, you should not be surprised if one of them comes up trumps. This multiple test phenomenon is responsible for any number of bogus correlations. When I was studying biological statistics the classic example was the close correlation between the birth rates in German cities and the population densities of nesting storks. Bogus correlations crop up all the time. Leukaemia clusters are a good example. A hospital in a country town reports an unusually high incidence of childhood leukaemia. “There is only one chance in a hundred that this happened by chance,” a worried spokesman exclaims. Well, there are more than a hundred country hospitals, aren’t there?

Remember, too, that the human brain is programmed to always notice the outstanding exceptions rather than the mundane rule. A while ago there was a hue and cry over an unexpectedly high incidence of breast cancer in the Brisbane office of the ABC. “Only one chance in a million!” shouted the headlines. The office was evacuated and condemned, on the assumption that it was contaminated – although no possible contaminant is known to cause breast cancer.

Well, the first thing we should ask is: what is so special about the Brisbane ABC? Why not look at the Melbourne ABC, or the Roma CWA, or the St Joseph’s ladies’ guild, or a hundred thousand other organisations? Indeed, what is so special about breast cancer? It would be considered just as noteworthy if any of the above groups were inflicted with Hodgkin’s disease, stomach ulcers, haemochromatosis, or a thousand other diseases. Looked at this way, there are almost endless combinations of disease clusters which could have happened, but didn’t.

It is like winning the lottery. The chances of any individual winning it are very remote, yet there are winners every week. Likewise, the chances of something terrible happening to your own small group is quite small, but some bad thing is bound to happen to some group somewhere. Thus, the only reason the Brisbane ABC was singled out was because someone noticed it stood out from the great mass of mediocrity. In the absence of some known cause, however, this must be regarded as just another example of the multiple test phenomenon. But people never look at it that way. It is human nature to always try to find some reason behind one’s tragedies.

You should not be surprised, therefore, that epidemiologists have additional methods of determining if a correlation is valid. They are:

1. Repeatability. If one study reveals a correlation between X and cancer, a second, more thorough study should also reveal it.
2. Dose effect. If X causes cancer, then heavy users of X should show a higher incidence of cancer than light users.
3. Finally, although some well established correlations are inexplicable, it is helpful if physiological mechanism can be hypothesized to explain the correlation. (That makes it rather difficult to accept the stork-birth rate correlation at its face value.)

What has this all got to do with veterans’ legislation? Plenty. Because once you start invoking the “beyond reasonable doubt” test, every rogue hypothesis and tentative speculation becomes grist to the pension mill.

As an example, one might mention the case of several widows who appeared before the Federal Court in 1981. Each of their husbands had suffered from malaria in New Guinea, and each of them had died of lymphosarcoma (cancer of the lymph glands) decades later. No statistical connection – not even a multiple test connection – could be cited between malaria and lymphosarcoma, nor was any alleged. You might think, therefore, that their case was pretty weak. However, they were able to cite the testimony of Dr Donald Metcalf, who had investigated the causes of the disease for more than 25 years, both in Australia and overseas, and was one of the world’s leading experts on the subject. He explained that such cancers typically display a latency period of up to 30 years between the initiating event and the manifestation of the disease. Furthermore, no one particular factor can be isolated as a cause for cancer. Nearly always it results from a combination of factors involving both the body’s own workings, and influences from the outside world. However, because cancer is, by definition, a result of runaway cell division, any factor increasing cell division acts to increase the risk. In this case, he believed that widespread, systemic infections, such as malaria, would cause a massive proliferation of lymphoid cells, and this might set in a train a course of events leading to cancer 30 decades later. He admitted it was only an hypothesis, but there was some support from experiments with mice.

When the Federal Court decided this was good enough to grant a pension under the “beyond reasonable doubt” principle, the Department had no choice but to accept such claims. However, there was still the question: how severe is severe? Multiple hospitalisations for malaria would certainly meet the mark, one brief incident might not. Dr Metcalf, being an honest researcher, kept refining his hypothesis in the light of additional information. It got to the point where he was essentially co-opted into the decision making process. Whenever such a claim was received, the relevant information would be sent to him with the question: does this accord with your current views? Eventually, after about four years, he finally abandoned his hypothesis, and anyone who lodged a claim after that date was out of luck.

Then there was the case of Joseph Rose. After he came back from the Second World War, he did not resume cohabitation with his wife, but went to live in a private hotel. On 21 July 1951, he disappeared. Then, in June 1955, a skeleton was found in bushland on Mt Coot-tha, then on the outskirts of Brisbane, and identified as his. Presumably, he had died of unknown causes while bushwalking.

The war widow’s pension was originally intended for relatively young women, often with children, tragically deprived of their husband’s emotional and financial support by enemy action. Looked at this way, Mrs Rose could hardly have been greatly inconvenienced by her estranged husband’s mysterious demise. Just the same, they had never been divorced, and she never had remarried. Then, in 1976 when, one presumes, she was no longer supported by her own labour, she applied for a war widow’s pension. He probably died, she contended, of a sudden heart attack, brought on by the war, naturally. This, said the three layers of decision makers, sounded a little tenuous. Various friends testified that he had complained of heart problems, but no supporting medical evidence whatsoever could be found. Nevertheless, in 1982 the Federal Court ruled that one could not be certain that death was not due to a heart attack.

A pattern was emerging. “Beyond reasonable doubt” was beginning to look like “beyond all shadow of doubt whatsoever”. It was no longer a reverse criminal standard of proof. The gaols would be empty if such a standard applied in criminal cases. But you should not be surprised that certain decision makers started taking it to heart.

Prior to 1985, the appeal avenue did not proceed: Delegate of the Commission → VRB → AAT. Instead, the initial decision would be made by a three-man Repatriation Board, with appeals first to a Delegate of the Commission, and then to the Repatriation Review Tribunal (RRT). It was the RRT which was the weakest link. Widows were a particular weakness. Confronted with the sight of an elderly widow, the critical faculties of the RRT would melt away. In 1983 alone, 98% of war widow’s appeals succeeded at the RRT. That wasn’t a bad score when you consider these were the cases too weak to be accepted at the other two levels. The Commission took the Tribunal to court many times, but even when they won, it made no difference. The RRT simply found another excuse to grant the appeal. Was it any wonder that the government eventually abolished it?

The government should have locked the stable door once the Law horse had bolted. Now another horse, by the name of O’Brien, was about to make its run. The case involved high blood pressure, or hypertension. By itself, it is not particularly incapacitating, but it is a gateway condition for much higher pensions down the track, because anyone suffering from it runs a much higher risk of heart disease, stroke, and other vascular diseases. The contention raised was that it was a result of a war-caused anxiety state. Intuitively, this hypothesis would appear to have a lot going for it. Everyone knows that your blood pressure goes up when you are anxious, and if you had a long term anxiety state, it seems reasonable that the pressure would end up reset at a higher level. It all makes perfect sense. The trouble is, there is not much scientific evidence to support it. And, indeed, it has been pointed out that exercise also raises blood pressure, but athletes are not particularly susceptible to hypertension. In the vast majority of cases, the cause of hypertension is unknown.

The case also went all the way to the High Court, and when Their Honours made their ruling in 1985, it was a bombshell. If you did not know the exact cause of a disease, then one cannot be certain “beyond reasonable doubt” that war service did not play a part. Broken bones and bacterial infections incurred after discharge would be out, but high blood pressure, prostate cancer, brain cancer, kidney stones, irritable bowel – every disease whose cause is unknown, or is incompletely known, in fact 90% of diseases – would be in. The stable door was not just open, it was smashed flat and lying battered on the ground, and the whole blessed herd was about to get away.

This time, the government sprang into action and changed the law. But for a few glorious months it was open slather. The change became effective only from the date of royal assent. Pre-existing claims, and all those who got in for their chop before the effective date, were entitled to an automatic, rubber stamp acceptance.

Why was this so? It is a basic principle of parliamentary government that laws are not made retrospective – and for good reasons. It would be iniquitous if you could be punished or sued for something that was perfectly legal at the time you did it. Even with administrative law, the principle holds good. When, for example, the government changes the rules relating to superannuation, the new rules apply only from the date of the legislation. Before that date, it is assumed that you have been planning your finances according to the old rules.

But in this case the principle was not valid. The issue was how to establish that a disease was war-caused. Nobody had planned to be sick, and certainly nobody had ever planned for the war to make him sick. Nobody would have been denied justice if the law had been made retrospective. Failure to do so simply handed a windfall to hundreds of people whose illnesses were not, by any rational assessment, due to the war.

Be that as it may, the reforms of 1985 can be summarised as follows:

1. Although there was no onus on the claimant to prove his case, there was no assumption that a medical condition was, in fact, war-caused. Up till then, the court decisions had carried the presumption that every veteran or veteran’s widow was entitled to a pension unless proved otherwise.
2. Before the “beyond reasonable doubt” test applied, the material had to raise a “reasonable hypothesis”. That effectively ruled out those cases where there was no evidence at all.
3. For the first time, eligible service was divided into separate categories. Operational service essentially entailed overseas service in time of war, or in certain parts of Australia which came under enemy attack in World War II. If a veteran went overseas at any time during the Second World War, the whole of his service before and afterwards counts as operational service. Peacekeeping service speaks for itself. The Minister could also designate certain episodes of peacetime service as “hazardous service.”
4. The “beyond reasonable doubt” standard of proof was to apply only to the connection between a disease or death and operational, peacekeeping, or hazardous service. Everything else was to be determined to the decision maker’s “reasonable satisfaction”, which was generally seen as the old civil standard of balance of probabilities. Effectively, this meant that service wholly in Australian during World War II, or simple defence service, would be judged in a much less generous manner. So would the assessment of pension.
5. Finally, the “reasonable satisfaction” test would apply to any disease with an onset more than forty years after the end of service, or any death which occurred after the said forty years’ delay. This was too much for the ex-service organisations. The Second World War was now forty years in the past. They could see their pot of gold slipping from their grasp. Worse still, their widows would miss out, and end up no better off than elderly civilian widows. That was the one clause they had to make a fuss about, and it was removed when the law was rewritten as the Veterans’ Entitlements Act the following year.

Two Standards of Proof

Stronger Standard (operational, peacekeeping, and hazardous service)	Weaker Standard (everything else)
reasonable hypothesis (RH) beyond reasonable doubt reverse criminal standard	reasonable satisfaction balance of probabilities (BOP) civil standard

The two standards of proof are referred to in different ways, and even with different acronyms. They are listed here for reference purposes.

When the reforms were introduced to Parliament, the Minister made it clear that a “reasonable hypothesis” meant one that was not “remote, fanciful or tenuous”, and it did not take long for the courts to confirm it. It took a lot longer to clarify that the evidence had to point to the hypothesis, however weakly, rather than merely leaving it open, and it was well over a decade before it was established that the diagnosis of a disease, or the cause of death, had to be established on the weaker standard. In the meantime, a lot of undeserved pensions were handed out.

Anomalies still existed. For instance, World War II is legally defined as ending in 1952, when the peace treaty was signed with Japan. Anybody who went overseas during that time still had operational service, even if all the enemies had laid down their arms. If he did, then the whole of his service was operational. Once I had a case which revolved around whether the claimant had made a single flight, lasting only one day, to New Guinea in 1946. “Surely,” said a colleague, “you’re not going to give him a pension because he went to New Guinea for just one day?” Indeed I was, because that’s what the law required.

Once the reforms were in place, the first action initiated by the Commission was to start rejecting all claims based on a smoking habit which commenced on non-operational service. All such rejections were accompanied by an explanation similar to what you have read in the last chapter: that smoking was the rule rather than the exception for men in the veteran’s age group in the period under consideration, and that access to cigarettes, and peer pressure were equally applicable to civilian life. On the balance of probabilities, military service was merely the setting, not the cause, of a smoking habit.

     This common sense approach lasted only eight years, when it was overthrown, first by the Tribunal, and then by the Federal Court, in the case of Tuite. Mr Tuite was one of those servicemen who was sent to a boot camp for several months, and then told to go home and wait till he got his call-up for full time service. Because the period in camp was isolated from the rest of his service, and it took place inside Australia, the service was non-operational, and standard of proof, in consequence, that of reasonable satisfaction.

At the time, he was 24 years old, and had successfully resisted all temptations to smoke. A more marked difference from James Law’s experience of heavy combat and imprisonment would be hard to come by, but he did suddenly find himself in an environment totally different from before. A truck used to come around and offer cigarettes for sale, and he saw other people accept them. There was nothing else to do but walk around, march, parade, and attend lectures. He was bored, and just a little apprehensive about going overseas sometime, so he decided to smoke. That’s good enough, said the Tribunal. Quite so, said the Court. The fact that the same inducements to smoke exist in civilian life is immaterial; just say the right words about smoking, and we’ll give you a pension. Being a decision maker at the time, I remember vividly how, in less than a year, we went from rejecting nearly all “reasonable satisfaction” smoking claims to accepting nearly all of them as a matter of course.

Just the same, there are two lines in the sand the Commission has decided to draw. Except in unusual circumstances, or in a moment of distraction, they will not accept increases in smoking on the balance of probabilities. Nor will they accept a claims if smoking commenced on defence service ie after 6 November 1972. By then the dangers of smoking were well known, even in the military, and warnings were placed on cigarette packets. Making the Tribunal understand that is, of course, another matter.

Quite apart from this, the vast majority of cases fell into the category of “reasonable hypothesis”, and there was still left open the question: how weak does an hypothesis have to be before it becomes “unreasonable”. The post-O’Brien reforms merely turned the clock back to the pre-O’Brien situation. It was no longer possible to obtain a pension with no evidence whatsoever, but medical authorities still differed as to how much smoking is required to cause a particular disease, or how much heavy work is needed to cause osteoarthrosis, and new, unsubstantiated studies were always coming out suggesting some connection between some little known disease and some commonplace item or experience. It needed only one rogue study or rogue doctor to set the cat among the pigeons.

Sometimes, no medical input was required at all. At one stage, the advocates of Legacy wracked their brains over the question: how can we get stomach cancer accepted as war-caused for non-smokers? and came up with the following chain of logic.

1. There is usually a long latency period between the insult to the body and the onset of cancer.

2. Nitrates can cause cancer.

3. During the war, troops were fed meat containing nitrate preservatives.

4. Ergo, the war can be blamed for stomach cancers forty years later.

No evidence was provided that stomach cancer was more common in veterans, or of the quantities of nitrate required before a risk is present, or even the concentration of nitrate present in war-time rations. It made no difference. It was an hypothesis; if it went unchallenged it would be deemed to be a “reasonable hypothesis”. Highly paid Departmental Medical Officers had therefore to be taken off their normal duties to investigate all the parameters and implications which Legacy had neglected.

Chasing these sorts of wild geese became a regular exercise for the Department. I honestly cannot remember any of the hypotheses initiated at the time by ex-service organisations turning out to have any validity, though they managed to get away with a few for a while.

Once the RRT was replaced by the VRB in 1985, it rapidly adopted its role as the weak link in the appeal chain. The current VRB is not too bad, but the original one was, to put it tactfully, a little over-enthusiastic in the thinness of an hypothesis it would accept as “reasonable”. Here are a few of the more memorable ones:

• While stationed in Australia during the war, a soldier was promoted to sergeant, and granted access to the sergeants’ mess, where he gained a taste for the pastries served there, became obese, stayed obese, and eventually developed heart trouble. This, you might notice, is a far cry from the case of Law, whose tobacco consumption was the result of an actual addiction. What made the decision even worse was that his service was non-operational, and so the “beyond reasonable doubt” principle failed to apply.
• Another digger, at a time when most Australians were tea drinkers, was seconded to the American army, and got addicted to coffee. (They used to brew it in their tanks, so he told me.) He came up with some evidence that caffeine is a risk factor for heart disease, and the Board accepted it. But I wouldn’t suggest you coffee drinkers worry too much; scientific research has failed to confirm it.
• The prize, however, must go to the time the Board accepted Legacy’s tortuous contention about the death of an elderly veteran from Alzheimer’s disease. It went as follows:

1. Although he was diagnosed with Alzheimer’s disease, this can only be established by autopsy. It may have really been some other form of dementia such as Creutzfedt-Jacob disease (CJD), a disease which received worldwide attention in the wake of the British “mad cow” epidemic.

2. CJD is thought to be caused by a “slow virus”, an old term for what is now known to be a strange biological particle called a prion.

3. “Slow viruses” are known to be present in New Guinea, in the form of kuru, or “laughing disease”, infecting a tribe called the South Fore.

4. Ergo, the deceased may have died from a dementia mimicking Alzheimer’s disease caused by a dreaded “slow virus” picked up in New Guinea.

Had the Board not been in a rush to hand out pensions, but had actually done its homework, it would have discovered a couple of pertinent facts. First, although CJD, kuru, and Alzheimer’s disease all involve dementia, they present quite differently, and whereas the progress of the first two diseases is a few months, Alzheimer’s disease lasts 6 to 10 years. Secondly, “slow viruses”, or prions, are not just floating around New Guinea haphazardly. Kuru was transmitted among the South Fore by mortuary cannibalism. In other words, instead of burying their dead, they ate them, the victims of kuru itself being considered especially delicious. As far as I know, this custom was not prevalent among Australian diggers.

Just to show that the lunatics really were in charge of the asylum, the Commission embraced this decision. At the time, there was a backlog of cases listed for the AAT, and the head of the Department’s advocacy section decided that the best way to reduce it was to concede cases willy nilly, even if it meant handing out large sums of taxpayers’ money. So, for some months, until saner policies prevailed, every claim involving New Guinea and dementia got smooth sailing.

The stable door, in other words, was still loose on its hinges, and now horse number 3 was about to bolt. Bushell was a partial re-run of O’Brien, in that it involved the same minority medical opinion about a connection between anxiety states and hypertension. The AAT had done the right thing; it had heard detailed evidence about when the scientific studies had actually found, and came out with the view that the connection had not been demonstrated. But this was too much for the High Court, which heard the case in 1992. Judges do not think like scientists. To them a scientist or a doctor is an “expert” – a keeper of arcane knowledge which a mere layman could hardly be expected to understand or analyse. They elected to follow the safer course, and not question it. Under the prevailing standard of proof, they ruled, it would be difficult to deny that an hypothesis was reasonable if it were raised by a specialist, even if most of his colleagues disagreed, provided he was eminent in his field, and had full knowledge of the veteran’s circumstances.

In practice, of course, the test was looser than that. The Department’s Claims Assessor, hard pressed for time, is hardly likely to question the eminence of any specialist who offered an opinion, or to ask what sort of studies he used as the basis for his opinion. What it meant, in other words, was that claimants could go doctor shopping, and as soon as they found someone who agreed with them, they were on a winner. It was not actually back to square one, but square two was looking very cosy.

The government’s attempt to correct the law met an unexpected hitch. Normally, Veterans’ Affairs legislation has bipartisan support, but now an election was in the offing. The ex-service organisations were therefore able to pressure the Coalition opposition in the Senate to quash the proposed amendments. Fortunately, it was merely a delaying tactic. Following the election, the re-elected Labor government appointed a committee headed by Prof Peter Baume to examine the issue. It was a masterful stroke. Prof Baume was an ex-Liberal MP. His party were unlikely to resist any recommendations he was to make. Also, as mentioned before, both sides of politics tend to think alike in this field, and the Liberals were probably glad to be let off the hook.

The Baume Report, ultimately made a large number of recommendations. It recommended, for example, that the standard of proof should revert to the modified civil standard originally intended by the 1977 amendments. Only a “courageous” government, unconcerned about political backlash, would have resorted to anything as radical as that. The veteran community had gotten used to regarding the standard of proof as their passport to the public purse. Also, as the Tuite case had proved, such a reform would not have put the smoking genie back into the bottle.

The committee also took note of the fact that, for a condition to be accepted as war-caused, the contribution by the war need be only very small. They recommended a two level scale of pension. If the contribution by the war were 50% or more, then the full pension would be paid. If it were less than 50% - even if it were de minimis – then only half the pension rate would be payable. Such a reform would have required a lot more public servants to administer, and would have created many more appeals, but it would have produced enormous savings. It would also have gutted the TPI industry.

Every chapter of the report contained numerous recommendations, but only one was acted upon in the immediate aftermath. Over the past year, the Department’s medical advisers had attempted to make the decision making process more consistent by producing Statements of Principles (SoPs) detailing under exactly which circumstances a disease could be accepted as war-caused – but leaving open, of course, the possibility of a doctor pulling a minority opinion out of the hat, and invoking Bushell. The Baume Report recommended that this process be formalised, with a special panel of medical experts being established to systematize the causes of every disease.

On this front, the government acted very quickly. The report had been published on 18 March 1994. From 1^st June that year all claims were to be determined by reference to SoPs promulgated by a select body called the Repatriation Medical Authority (RMA). Once a SoP has been issued, the opinion of any other specialist, no matter how eminent, would be irrelevant. Doctor shopping under the old system would be possible only for diseases not yet the subject of a SoP – and there are precious few of those left. The amendment to the law also established a Specialist Medical Review Council to review the decisions of the RMA. Finally, in order to retain control over the whole situation, the government added section 180A, which essentially allows the Commission to issue its own SoPs. (We shall see examples in the next chapter.)

The RMA does not publish the reasoning behind its SoPs. Like God, it moves in mysterious ways, and like God, its decrees are binding on us mortals. However, outside bodies are permitted to make submissions, and the Commission frequently does so. So, occasionally do ex-service organisations, but they seldom have the facilities to properly analyse scientific data. The RMA is not concerned about majority medical opinion. Medical research advances so rapidly, that majority opinion is actually uninformed opinion. Instead, it studies all the most recent and thorough scientific papers, analysing them according to the tenets of scientific research. Consequently, SoPs are amended and replaced at irregular intervals as new information becomes available.

A SoP merely lists all the risk factors for a disease, no matter how obscure – even birth defects. It is up to the determining authority to connect one of them to eligible service, and sometimes this would be next to impossible. Nevertheless, the list of risk factors grows every year, as more research becomes available. (Now you know, for instance, where I got the list of smoking related conditions in the last chapter.) Two SoPs are produced for every disease, one for each standard of proof. Sometimes the risk factors are the same in both. In others cases, the SoPs differ in the level of exposure required, or the latency period between exposure and onset. What the RMA effectively does, is take the most likely situation for the “balance of probabilities” SoP, and the outer limits of the epidemiological data when the test is “beyond reasonable doubt”. Occasionally, a risk factor appears in one, but not in the other. For example, you will be interested to know that the hypothesis of O’Brien and Bushell: that of anxiety and hypertension, finally got the OK from the RMA in 2003 – but only as a possibility which could not be excluded “beyond reasonable doubt”. It is still regarded as improbable.

Needless to say, the Federal Court still managed to frustrate the intentions of Parliament. In 1999, for instance, came the case of Keeley. He was dismayed to find that, between the decision of the Commission and that of the Tribunal, the RMA had replaced his SoP with one less favourable to his claim. It wasn’t fair, he cried – and the Court agreed. He had an accrued right to be considered under the old SoP. Consider what this means. The most up-to-date scientific knowledge indicated that his condition could not be related to service, even under the most generous standard of proof, yet now he was entitled to a free pension on the basis of obsolete information.

The perversity of this logic was not completely lost on the Court. In the Full Court decision of Gorton (2001), Justice Allsop gave the following minority opinion: “However, it seems to me that they [the SoPs] do not affect accrued rights at all and are not intended to. To put it bluntly, it might be said that no-one has the right to have his or her claim assessed by the tribunal erroneously by reference to the product of out of date science and medicine.” Exactly. Yet, law and precedent was still permitted to triumph over justice and common sense. (Gorton is also authority for the proposition that, when a SoP says “daily”, it does not mean “daily”; it means “just about daily”.)

Next came the ruling in Kattenberg (2002). In this instance, the veteran needed 30 pack years of tobacco consumption. (A pack year is 7,300 cigarettes: the equivalent of a packet of 20 per day for one year.) Unfortunately, he had started smoking before eligible service, and merely increased on service, so he had only 15.87 pack years directly due to service. Yes, said the judge, but he also had 19.4 pack years due to his original addiction, and the extra 15.87 were enough to push him over the threshold. He would not have had 30 pack years “but for” his eligible service, and the legislation does use the term “but for”. That was definitely not what had been intended by the legislation, and it threw the field wide open again. For a short time, the Commission considered asking Parliament to change the law, but decided against it because they could not think of a form of words that would work. The Commission, in other words, lacked imagination.

Worse, the Commission has chosen to adopt an incorrect interpretation of the judge’s decision, one much more generous to the applicants than the judge’s actual decision. Instead of using the “but for” test, they have decided that all that is needed is that eligible service make a “material contribution” to a disease. The difference is very important. If Mr Kattenberg’s original tobacco addiction has produced the full 30 pack years, his claim would have failed, because the extra 15.87 due to service would not have pushed him over the threshold. The threshold would have been crossed in any case, and “in any case” will always trump “but for”. Nevertheless, the Commission has now rewritten the department’s computer programs, and I have personal experience that they will automatically accept claims which a correct reading of the law should reject.

Finally, although the 2006 case of Cotton did not have the overwhelming ramifications of the other two, it remains an object lesson for anyone who believes that judges are highly intelligent beings with superior faculties in logical reasoning. As a background to the case, you must understand that drinking too much alcohol will put you at risk of high blood pressure, or hypertension. The original SoP required:

“suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 grams per week of alcohol”. (That’s little more than four standard drinks a day.)

However, the new SoP replaced it with:

“consuming an average of at least 300 grams per week of alcohol which cannot be decreased to less than an average of 300 grams per week.”

     Obviously, the RMA had wished to include the hypothetical circumstances where a person was unable to reduce consumption for some unlikely reason unrelated to alcoholism. But that was much too sensible for Justice Steven Rares to grasp. After following the most tortuous and convoluted chain of logic imaginable, he reached the conclusion that the last phrase cannot mean what it says and, in practice, has no real meaning at all. (Why take my word for it? The full decision, in all its glory, can be found on the internet. Just follow the link already provided.)

    (Shortly afterwards, the RMA, rather than correcting the misinterpretation, simply removed the reference to being unable to decrease. However, they did increase the quantity required.)

Despite all this, the SoPs swept through the department like a clean wind. Now the causes of diseases were clear cut and beyond question. The odious doctor shopping was largely a thing of the past. Nevertheless, they were not an unqualified blessing. Although a large number of diseases were now off the table as far as pension claims were concerned, the increasing number of risk factors for an increasing number of diseases resulted in increasingly imaginative contentions from ex-service organisations. Also, the ready accessibility of the SoPs meant that people could tailor their evidence to suit their requirements.

Not only that, but an air of unreality and artificiality still clings to them. A good example would be ischaemic heart disease, the most common type of heart trouble. Everyone knows that it can be caused by smoking. What everybody doesn’t know is that the risk very quickly reduces once you give it up. So, the “balance of probabilities” SoP states that, no matter how much you may have smoked, once you have given it up for five years, you are no longer at risk. However, when you consult the “beyond reasonable doubt” SoP, you find that the risk extends to 15 years after cessation, provided you have smoked at least five and less than 20 pack years (a pack year, you will remember, is 7,300 cigarettes). If you have smoked 20 pack years or more, then the risk is considered permanent.

You must understand the biological basis of all this. Smoking causes hardening of the arteries, but once it ceases, the body starts to clean itself, and after a short while returns to normal. Scientific studies have revealed that it is probably back to normal after five years, but the possibility that there is still some residual effect cannot be ruled out. Nevertheless, the probability most be very low. After 15 years, any residual effect would be very small, and after 20 years smaller still. In other words, we are operating at the very bottom limit of residual effects. Yet, when a claim comes up for consideration, we will often find ourselves arguing over whether the veteran had 20 pack years, or only 19, or whether he gave up 16 years ago, and not 15. Meanwhile, he has reached the age where heart disease is common, he is obese and does not exercise, and has non-war-caused high blood pressure – all of which are recognised risk factors, and which any ordinary person outside of the ivory tower would say were the “real” causes of his heart disease. Examples like this can be provided indefinitely.

Three years after the introduction of the SoP regime, the government commissioned Prof. D. Pearce to review the progress of the system. He determined that it was working quite well indeed. However, he did perform a few back-of-the-envelope calculations, and estimated that only one to ten per cent of successful claims would succeed without the “benefit of the doubt” rule. In other words, the department is accepting at least ten unworthy claims in order to avoid one worthy claim being refused. And this assumes the validity of the smoking contention, which is responsible for two thirds of all successful claims.

He also pointed out the irony that, although the Department of Veterans’ Affairs has the most generous pension system in the world, the ex-service organisations are constantly complaining about how niggardly it is. He corrected divined the cause: Veterans’ Affairs is evidence-based, whereas the ex-service organisations are reward-based. In other words, whereas the Department does it best to determine that diseases are at least theoretically related to service, the ex-service organisations believe that every veteran and widow should get a pension – preferably at the highest rate – merely for being a veteran or widow, and regard SoPs and the law as unreasonable barriers to that aim.

Continue to Chapter 5

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