Allen and Repatriation Commission - [2001] AATA 1044

DECISION AND REASONS FOR DECISION [2001] AATA 1044

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1409

VETERANS APPEALS DIVISION           )
           Re      KATHLEEN ALLEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date11 December 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED, that the death of the late Jack Albert Allen was war-caused.
  ......…Sgd. Mr J. Handley…....
  Senior Member
CATCHWORDS
Veterans' Entitlements - Death of veteran by prostate cancer - operational service - high animal fat diet post war - specific evidence of pre war diet - whether SoP's satisfied - whether altered diet associated with service - decision under review set aside.
Repatriation Commission v Gorton [2001] FCA 1194
Re Keenan and Repatriation Commission [2000] AATA 707
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

11 December 2001 Mr J. Handley, Senior Member

Kathleen Mary Allen, being the widow of the late Jack Albert Allen made an application for pension under the Veterans' Entitlements Act on 20 November 1998. The Repatriation Commission then rejected the claim. On appeal to the Veterans Review Board the decision of the Repatriation Commission was affirmed on 9 October 2000.
Mrs Allen has sought review of those decisions in a hearing on 8 November 2001.
Unfortunately Mrs Allen has recently been diagnosed with dementia and was unable to give evidence. Mr Smith who appeared on behalf of Mrs Allen called her daughter, Karen Matthews, to give evidence. Additionally, Edward Garth, the Legatee of Mrs Allen, also gave evidence. Mr Rudge appeared on behalf of the respondent.
The late Mr Allen died on 23 August 1998. The certified cause of death was "multiple metastatic carcinoma - 3 years; carcinoma of the prostate - 10 years".
The late Mr Allen was born on 23 October 1920 and was two months short of his 78th Birthday at the time of death. He served as a member of the Australian Army between 5 August 1941 and 15 January 1946. He served overseas between November 1944 and December 1945 and by reason of his operational service Mrs Allen is entitled to the beneficial standard of proof.
The hypothesis advanced by Mr Smith on behalf of Mrs Allen - so far as it was pleaded in the Statement of Facts and Contentions filed prior to the hearing - was "the nature of Army food promoted a continuation of a desire for high fat foods after war service. This is a reasonable proposition given the statements by other veterans with regard to war service diet. It is quite reasonable for the Tribunal to accept that a veteran on a poor diet during service will react by eating fatty and rich foods thereafter".
Prior to the hearing commencing, the relevant Instrument found to be in existence at the date of the primary decision was number 191 of 1996 which amended Instrument No. 95 of 1995. On 9 November 1999 the Repatriation Medical Authority issued Instrument No. 84 of 1999 which revoked Instrument No. 95 of 1995 and Instrument No. 191 of 1996.
Having regard to the recent Federal Court Decision of Repatriation Commission v Gorton 2001 FCA 1194, the Tribunal is obliged to consider "the reasonableness of the hypothesis advanced by reference to the SoP which is in force" (paragraph 42). At paragraph 43 the Court said "if however the current SoP does not uphold the hypothesis the claimant may then contend …… that he or she has an accrued right under the earlier SoP".
The relevant factor in each of Instrument No 191 of 1996 and No. 84 of 1999 was factor 1(b) and 5(c) respectively namely-
"increasing animal fat consumption by at least 40%, to at least 70 gm/day for at least 20 yeas before the clinical onset of malignant neoplasm of the prostate: …….".
There is a difference however in the definition of the words "animal fat".
Instrument No. 191 of 1996 defines animal fat as-
"animal fat means fat contained in or derived from
(a) beef, veal, pork, mutton or lamb or offal, which may be in any form, for example, main dish, sandwich or mixed dish; in preserved meats, ham, frankfurter's, sausages, salami, bologna, deli meat items, lard and bacon; and
(b) dairy products, for example; milk, cream, sour cream, sherbet or ice milk, ice cream, yoghurt, cottage cheese, ricotta cheese, cream cheese, other cheese and butter".
The definition of the words "animal fat" in Instrument No. 84 of 1999 is as follows-
"Animal fat means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products".
It was submitted at the outset that the deceased enjoyed a low animal fat pre service diet, however by reason of his service and the diet he then endured, Mr Allen developed a post service diet of high animal fats much greater than the quantity recited in the SoP and certainly greater than the percentage increase also recited.
The clinical diagnosis of prostate carcinoma was made in 1990. Both representatives agreed that this was the "clinical onset" of the condition.
Mr Rudge on behalf of the respondent contended that the evidence from the consultant dietician Ms Simonsen as found in a report within the T-documents was irrational because upon her analysis there was a 700% increase in the post war fat consumption compared with the consumption prior to service. Additionally it was put that consumption of animal fats approaching this level would have caused obesity yet the recorded weight of the deceased from time to time did not show any appreciable increase in his weight. Additionally Mr Rudge said that there was no material which pointed to a connection between increased consumption of animal fats and the applicant's military service.
Kathleen Mary Allen
Mrs Allen was unable to give evidence because she has recently been diagnosed with dementia. Nonetheless an (undated) statement was signed by her and found within the T-documents at pages 37 and 38. She reported that she met Mr Allen when she was 16 and when he was 19 years of age. She described Mr Allen as being "very slim, finely built young man" who was then a keen amateur cyclist. She said her husband was conscious about his weight and the importance of maintaining physical fitness.
Mrs Allen reported that she knew her husbands family and often ate meals at their house. She reported "Mum Allen was a good country style cook and a firm believer in dishing up good wholesome meals with plenty of fresh vegetables and salads which pop Allen grew in his back garden. Deserts were always either jelly, apple pie or stewed fruits. In those days the family ate a lot of fish as Jacks brother Colin was a very keen fisherman. They also ate a lot of rabbit which Jacks mother often caught from door to door sellers.
Later in the statement Mrs Allen reported that she noticed a number of changes in her husband after discharge from service. She reported "one of those being that he seemed to have difficulty eating the food his mother and I dished up for him. He had developed a fondness for beer, ice cream, chocolate, salted peanuts and very fatty food. During the 56 years we were married Jacks meals remained fairly constant. For breakfast he always preferred a couple of slices of buttered toast and a cup of black tea with two teaspoons of sugar. During the week he always bought lunch which was usually a counter meal consisting of grills or pies and a glass of beer. For dinner of an evening we would have chops/steak/sausages or rissoles always fried because that was the way Jack liked them with mashed potatoes and vegetables. For desert he would have ice cream, custard or cold chocolate pudding (which was made with a pint of milk) and served with cream. On Sundays we always had a roast (usually a leg of mutton - sometimes pork) for lunch with roast potatoes and vegetables. It was interesting that after the war Jack didn't seem to enjoy salads as much as he had before hand preferring instead hot meals which always included fried meats. He always worked on Saturday mornings and for lunch on those days I used to cook him fried steak or sausages and eggs because that was what he wanted".
The late Mr Allen wrote to Mrs Allen from New Guinea and a copy of one of his letters was received into evidence. He refers to Mrs Allen in loving terms and addresses the letter as "my darling Kathleen". The army diet is not referred to by him but the unpleasant conditions in New Guinea are referred to (heat and rain) and the ever present risk of attack. He vows by his letter "by hell our child will never be in this army as long as I am alive. I have seen some terrible things happen here. It is terrible to think of men sneaking on one another through mud and slush trying to kill".
Karen Lorraine Matthews
Mrs Matthews is the daughter of the applicant and the deceased veteran. She provided three statements dated 24 October 2001, 9 July 2001 and a statement found at pages 39 and 40 of the T-documents, which is undated.
In the statement dated 9 July 2001 Ms Matthews reports that at the age of 6 or 7 she could remember her father having regular nightmares and frequently awaking in the middle of the night and shouting to her mother "get down out of sight because the bastards are in the trees". She observed her father on these occasions sitting on the edge of his bed holding his head in his hands, perspiring and shaking. She said these nightmares continued for many years. She reported that her father had told her stories about the presence of Japanese submarines whilst travelling on board the Motor Vessel Cape Victory and another story of having found the remains of a soldier who had been killed and partially consumed by others.
In her statement of 24 October 2001 Mrs Matthews recalled that her father was physically active being an amateur cyclist and was engaged in competitive racing until 1955. She said after he ceased competitive riding he would ride his bike to and from work and after work. She described her father as being physically active, that he would never sit still and that he was "always on the go". She said that her father would drink alcohol in greater quantities when he was stressed (as opposed to consuming foods) however "my father burnt energy. He never got fat because he never sat around long enough". She reported that her father refused to eat some foods and often referred to food in service as being "slop". She said her father referred to fried food as "good tucker". He particularly liked steak, eggs, chips, roast meals, gravy, ice-cream, cheese and bacon. He would compare this food favourably with the food he had during war-service. Later she reported "my father did not like salads. I understand that he liked salads prior to war-service. I have no doubt that as a result of the food my father had on service and his hatred of that food he altered his diet". In the undated statement found within the T-documents Mrs Mathews records that from the age of 11 she cooked the evening meal five days per week when both her parents were working. She said she prepared the evening meal after arriving home from school and it would inevitably consist of "steak, chops, sausages or rissoles (always fried in dripping) and served with mashed potatoes and vegetables. Desert was always either ice-cream, custard or a packet of chocolate pudding (similar to mousse) which was made with milk and served with cream or ice-cream". She said that her father's breakfast always comprised toast "thickly buttered and black tea and at lunch he would have a counter meal of a mixed grill or meat pies and beer". She said that she rarely ever saw her father eat fruit, however he consumed quantities of ice-cream, salted peanuts and chocolate "a block of which he would sometimes eat in one hit". She said her father worked Saturday mornings prior to retirement and at lunchtime "mum would cook him fried steak or sausages and eggs". Consistent with the statement of Mrs Allen, Mrs Mathews said that Sundays involved a roast leg of mutton or pork with roast potatoes and vegetables and gravy, which was made from dripping. She said that her father's diet remained the same until about 3 or 4 years ago when her mother commenced to have difficulty cooking due to dementia.
Mrs Mathews reported that she grew up with her grandparents and observed her grandfather grow all vegetables for the family comprising tomatoes, lettuces radishes, silverbeat, carrots, beetroot and onions. She has observed photographs of her father before the war being "a slim young man however after the war he steadily put on weight and until the onset of cancer had become quite tubby".
In evidence Mrs Mathews spoke in similar terms to that which was recorded in her three statements. Additionally she said that her father spoke in very uncomplimentary terms about army rations. She again said that her father had referred to the food as being "slop" and on other occasions as a "greasy mess". She said there were occasions where he told her that the tinned meat would "melt in the sun". She said that her father refused to eat camp pie, after discharge because it reminded him of bully beef.
Mrs Mathews recalled that her father was diagnosed with prostate cancer on his 70th Birthday being 20 October 1990. She remembered that a birthday party had been planned for him however when he returned from the Doctor with this information he was "shattered".
In cross-examination Mrs Mathews said that she recalled that her father ate greater quantities of food than other members of the family during the period when she was preparing the meals in the 1960's. She said that she then thought that the food being prepared was "normal Australian diet" as indeed she believed that the use of dripping or lard was also normal. She did not know whether dripping or lard was used by Australian families prior to service. She was unable to say what other Australian families regularly consumed but learnt much later that the consumption of animal fat was unhealthy. She recalled that she and other members of the family would regularly eat fruit and salad but her father did not.
Prior to service Mrs Mathews said that her father's family would never have had lamb, beef, pork or bacon because during the depression years meats of this type were not available. She recalled her grandfather growing his own vegetables and being told that he frequently grew vegetables during the depression years. She was aware also that her father's brother regularly caught fish, and rabbit was also readily available.
When asked whether she thought it was a natural tendency for persons to put on weight as they became older, Mrs Mathews said that she believed that her father's diet "had something to do with it".
Edward George Garth
Mr Garth is a retired accountant and the legatee of Mrs Allen. Mr Garth was a member of the RAAF and did not serve with the deceased. He provided a statement found at pages 59 and 60 of the T-documents. The statement in part records
"I did my training as a wireless OP at Point Cook where the food varied from poor to uneatable. On more than one occasion when the Orderly Officer entered the airman's mess and asked, "were there any complaints" every airman in the mess stood. Cold meat served for lunch was sometimes fly blown. The units where I spent most of my time up north were at Birdum and Bachelor, the diet in these places was very similar, consisting mainly of bully beef and M and V and baked beans. The bully beef was a disgusting mess of fat laden sludge, except when it was possible to serve the bully beef chilled then it was a fat laden slab. "In his statement Mr Garth said that prior to service he did not eat meat with fat or other fatty foods such as butter, cheese or cream because it was beyond his families means. He recalled however that when he returned to Australia and was discharged in November 1945 he and his comrades went into a café in Bourke Street where we spent the afternoon and demolished four serves of steak, eggs and bacon each".
In evidence Mr Garth said that following service he ate "as much fatty food as I could get". He also recalled another service person (who prepared a statement and will be referred to later in these reasons) as consuming tree rats in New Guinea because they were more palatable than the bully beef.
In cross-examination Mr Garth was adamant that the diet in service was not balanced. He rejected the suggestion that fruit and vegetables were provided and said there was no difference between the food provided to RAAF members and Army members. Indeed he said that the aim of the Army was to "provide as little as possible as often as possible. He said he could produce much material from "hundreds of serviceman to refute the suggestion that fruit and vegetables were made available during service.
Witness statements
A number of persons provided statements which were found within the T-documents. None of these persons gave evidence however a summary of the contents of the statements is as follows-
Colin Allen is the brother of the late deceased veteran. He reported that his mother "was a firm believer in having plenty of fresh fruit and vegetable in our daily diet and because dad grew most of his vegetable in the back garden there was never a shortage in this area. Breakfast consisted mainly of porridge and toast and because we all worked close to home, lunch times became our main meal of the day. This usually consisted of rabbit and fresh fish and plenty of fresh vegetables. We ate fish regularly, as I was very keen on fishing and seldom came home without a catch. Evening meals consisted of home made soup, poached eggs on toast and vegetables. Deserts were generally stewed fruits, jam tart, tin fruit and jelly".
Fred Flanagan in a statement found at page 49 reported that during training, rations comprised of 75% of bully beef and biscuits and bread, 15% baked beans and 10% tinned sausages. "In action" he said the diet comprised of 98% bully beef and biscuits. Mr Flannagan reported that he and others "lived off land, raided native gardens for paw paw, taro etc. Ate a lot of tree rats and grasshoppers in Owen Stanley campaign, as they could not get rations to us. This happened in all campaigns in the SWPA".
Mr D W Hampton, in a statement found at pages 50 and 51 reported "in the field, rations were confined to tin food - mainly bully beef, M & V, herrings in tomato sauce (goldfish) together with rice and army biscuits (dog biscuits). In camp occasionally egg powder and dehydrated potatoes appeared on the menu and extremely rarely chilled meat of unknown origin. Most meals consisted of bully beef, either eaten straight out of the tin, on biscuits, in stews or fried. After 5 ½ years of an army diet which had a very high fat content I developed a liking for fatty foods in my post war diet in direct contrast to my family diet pre-war. Favourite meals post war included grilled chops, sausages and steak, roast meats all eaten with no attempt to trim off excess fat before eating - infact the more fat the better. Fried eggs and bacon, offal of all sorts and even bread and dripping also form part of my diet for many years after World War 2".
Mr Ted Harrison in a statement at pages 52 and 53 reported that the diet in Puckapunyal prior to service mainly comprised "incredibly greasy midday and night meals". In New Guinea, Mr Harrison said that "hard rations were available for the first two days only but thereafter bully beef and biscuits were consumed for the next 2 ½ weeks". He described the beef as "extremely greasy because of the very hot and steamy conditions".
Mr J. Millott in a statement at page 54 said that the diet in New Guinea as provided by the Army was tinned bully beef and biscuits, supplemented by tinned baked beans and occasional tinned sausages. He reported that it was "necessary at times to obtain food from native gardens - such as bananas, paw paw and sweet potato. These were the only fresh produce whilst in forward positions". He continued "I personally developed a likening for fatty foods which persists to this day. It probably contributed to heart attacks and eventual bypass surgery. A low fat diet is now maintained by strict control".

Statements by Mr Smith at page 55, Mr Bottomly at pages 56-58, Mr Stewart at page 63 and Mr Naughton at page 65 all refer to the diet in New Guinea of bully beef and biscuits. Some have referred to the diet in derogatory terms.
Mr Stewart reported that he was happy to provide a statement but would have preferred not to have been reminded of the service diet. A number of veterans in their statements refer to a post war diet containing high animal fat content.
Doctor Edward Cole
Doctor Cole is a consultant psychiatrist who did not give evidence but who provided reports dated 20 March 2001 and 27 July 2001.
In the report of 20 March, having observed the statements of Mrs Allen, Mrs Mathews and Mr Collin Allen, Doctor Cole reported "these clearly set out the nature of the late Mr Allen's diet before and after his war time service. In my opinion they would represent a more accurate version of his diet than conclusions derived from average civilian diets before and after the Second World War. That is, the evidence clearly points to the fact that following the war, he preferred a diet much higher in fat than he had beforehand".
Having then referred to the statements of the other veterans referred to in the T-documents, Doctor Cole concluded "again in my opinion these first hand accounts are to be preferred to an analysis of service ration scales despite the subjective nature of these accounts".
Doctor Cole later reported "I note that it has been suggested that the rations being high in fat were unpalatable and would be more likely to cause an aversion to high fat meals rather than encourage men to adopt a high fat diet after discharge. It seems to me that this hinges upon the palatability of the fat. Some fatty meals are revolting, but others are very tasty and this has led, in part, to the success of the fast food industry. Personally I find it quite reasonable that someone who had a poor inadequate and tasteless diet during the war, would welcome the satisfaction of rich foods with a high fat content. It has also been suggested that Mr Allen could not have eaten the amount of fat that he did as he failed to gain weight until after he stopped cycling and even then was not clinically obese. It is of course well recognised that because of individual factors, some people will gain weight on a given caloric intake while others will loose it on the same intake. Mr Allen could well have been one of those fortunate individuals who could eat a good deal and yet not gain weight".
In his report of 27 July 2001, Dr Cole read further statements completed by Mrs Mathews, an alcohol questionnaire and a transcribed letter from the veteran to Mrs Allen (refer earlier). Dr Cole concluded that the deceased's "compulsive eating and excessive drinking were also in my opinion symptomatic of a chronic post traumatic stress disorder"
Elizabeth Simonsen
Mrs Simonsen is an accredited practicing dietician who provided a report at the request of the applicant on 20 March 2000. She was not called to give evidence. She prepared a chart purporting to give the "fat content in grams" of the pre-war and post war diet of the deceased.
It is presumed that Mrs Simonsen prepared her report upon information provided to her by either Mrs Allen or her family or her solicitors with respect to the deceased's pre and post war diet.
The sample daily diet recorded as having been consumed pre-war comprises a breakfast of toast with butter and black tea, a lunch of 200 grams of baked fish with lettuce, tomato, onion and cucumber and an evening meal of two cups of vegetable soup, two poached eggs, two slices of bread, two teaspoons of butter, two boiled potatoes, pumpkin and cabbage. The "total fat" has been found to be 53.4 grams.
Under the sub-heading of "post war diet" the sample daily menu is said to be a breakfast of two slices of toast, with two teaspoons of butter and black tea, a lunch of two chops with fat, one steak, two sausages, half a cup of gravy, one cup of mashed potato, pumpkin, cabbage and beer. Afternoon tea is recorded as four Sao biscuits, four slices of cheddar cheese, black tea and sugar. The evening meal is recorded as comprising five home made rissoles, one cap of mashed potato, carrots, peas, 200 grams of chocolate pudding and one tablespoon of cream. Supper is recorded as a 200 gram block of chocolate and 450 grams of nuts. This is said to total 380.9 grams of "total fat".
An analysis of the "sample daily menu" as recorded by Mrs Simonsen was not subject to scrutiny in evidence yet it would appear to be a sample of the foods consumed by the deceased as was known to her from the statements of the various witnesses. The use of the word "sample" by Mrs Simonsen would suggest that the foods recorded were not consumed every day but the foods actually recorded were indicative of the diet of the deceased.
Unfortunately the fat content as recorded is not the "animal fat" as prescribed by the Statement of Principles.
Submissions
The Applicant
Mr Smith relied on the report of Mrs Simonsen, the various statements received into evidence, and the evidence of Mrs Mathews and Mr Garth.
It was submitted that the evidence pointed to a significant increase in the post war consumption of animal fat compared to the diet of the deceased prior to service. It was submitted that the analysis of Mrs Simonsen pointed to an increase in animal fat consumption by at least 40%, to at least 70 grams per day and then for at least 20 years before the clinical onset of the prostate cancer, thereby satisfying the relevant factors in either of the two applicable Statement of Principles.
To the extent that the respondent wished to draw conclusions from the report of Dr Ruth English (frequently referred to in similar applications) entitled "Animal Fat in the Australian Diet Including the Armed Services, Rations in World War II" Mr Smith submitted that the specific evidence of Mrs Allen and Mrs Mathews and other veterans should be preferred to the general nature of the conclusions drawn by Dr English. Additionally Mr Smith referred to a decision of the Tribunal in Re Keenan and Repatriation Commission [2000] AATA 707 decided on 17 August 2000. In that case the Tribunal comprised the President the Honourable Justice D. F. O'Connor and Members Way and Lynch. In that application, Mr Smith submitted that the Tribunal preferred the specific evidence of the veteran's widow and other witnesses as to the deceased's diet compared to the generalised nature of the evidence of Doctor English.
Mr Smith acknowledged that on the analysis by Mrs Simonsen there was a very significant increase in the consumption of animal fat subsequent to service, which on one view could be treated with some caution. Nonetheless he submitted that even if the fat content in the applicant's pre-service diet was doubled and the fat content in the deceased's post war diet was halved, the deceased would have nonetheless had a 40% increase in animal fat consumption and then to at least 70 grams per day for 20 years prior to the clinical onset of the prostate cancer.
Mr Smith submitted that the innuendo raised during the hearing of the failure of the deceased to gain weight was misplaced and weight gain was not associated only with animal fat consumption. That is to say the deceased's lifestyle would need to be considered and in this regard he pointed to the evidence of Mrs Mathew's who spoke of her father being a very active, fit person who was an amateur cyclist and who "was always on the go". Additionally, Mr Smith pointed to the evidence of Doctor Cole who connected animal fat consumption with circumstances of service.
It was submitted that all of the four stages of Deledio v Repatriation Commission (1998) 49 ALD 193 at 206 were satisfied. It followed therefore that a reasonable hypothesis had been established and the decision under review should be set aside.
The Respondent
Mr Rudge pointed to the applicant's weight of 126 pounds at enlistment and 123 pounds at discharge. He also noted that the deceased was 129 pounds in 1954.
It followed, he submitted, that if there was 40% increase in animal fat there would have been a considerable increase in the deceased's body weight. It was submitted that the deceased was an active cyclist and employee before and after service, yet the only variation in his lifestyle was his diet. It followed therefore that there should have been a consequent increase in body weight.
It was also submitted that the report of Dr Simonsen should be disregarded because it did not contain a reference to animal fat. Additionally it was submitted that the menu relied upon by her, particularly with respect to the applicant's "sample" lunch, was erroneous and inconsistent with the evidence.
Mr Rudge also doubted the evidence with respect to the deceased's pre-war diet because he said the only protein the deceased would have consumed would have been fish and this he submitted was doubtful.
It was submitted that there was no connection raised at all between service and the subsequent consumption of animal fat. It was submitted that the deceased's diet post war was common for all Australian's and it was nothing to point to the adopted diet as having any connection with service. Mr Rudge pointed to parts of the report of Doctor English who found on her analysis of fat content that there was little difference between the pre-war diet of civilians and the actual war diet of service personnel. Indeed he also pointed to her analysis which showed only a slight increase in the animal fat consumption subsequent to service yet with a remarkable reduction in animal fat consumption from the late 1960's - early 1970's (presumed to be because of the introduction of polyunsaturated fats and vegetable oils) and greater community awareness of healthy diet.
It followed, on this analysis, that the service diet during the Second World War was not high in fat and the deceased could not have developed a preference for fatty foods subsequent to service because of fatty foods consumed during service.
In reply Mr Smith submitted that it was not the applicant's case that the service diet was high in fat precipitating a preference for fatty foods subsequent to service. It was submitted that the deceased adopted a post war diet of high animal fat because of the poor quality of food during service. He said this was pointed to by the evidence of Mrs Mathews and was consistent also with the statements made by a number of veterans as found within the T-documents.
Conclusion & Reasons For Decision
At the commencement of the hearing the representatives of the parties learnt of the existence of Instrument No. 84 of 1999. The only significant difference between that Instrument and Instrument No. 191 of 1996 was the altered definition of "animal fat". Little turned on the altered definition and I believe rightly so. The definition of "animal fat" as it appears in Instrument No. 84 of 1999 is a more expeditious or refined definition. While "birds" are added as a meat being a source of animal fat, the significant alteration is to eliminate the listed examples constituting dairy products as found in Instrument No. 191 of 1996.
It follows therefore that having regard to the procedure decided in Repatriation Commission v Gorton (refer earlier) there is no practical difference between both instruments.
With respect to the evidence heard I was impressed by Mrs Mathews. I found her to be a witness of truth, who did not exaggerate or embellish her evidence. Unlike a number of other similar applications before the Tribunal, this review is fortunate to have evidence of the pre-war diet of the deceased veteran. Often that evidence is absent. There is a strong degree of similarity as to the deceased's pre-war diet from the evidence received in the form of statements from the deceased's brother and Mrs Allen, the applicant in these proceedings.
I am therefore satisfied that the pre-war diet of the deceased did comprise a significant quantity of vegetables and fruits which were - on the evidence - grown by the deceased's parents.
I am satisfied also on the evidence heard and read that there was little red meat consumed - if at all. Mostly the meat consumed prior to service was in the form of either rabbit or fish. It follows therefore that the diet of the deceased prior to service contained a relatively low animal fat content. Evidence of the pre-war diet is important because it permits an analysis and a comparison of the animal fat consumed pre and post war as is necessarily required by the applicable factors in the Statements of Principles.
I note also - having regard to the evidence heard in other applications involving a similar hypothesis - that pre-war many Australian's endured the Depression where the availability of food was restricted and was often either home grown or caught (in the case of rabbits and fish for example). Additionally - as has been heard in many other applications - the cooking methods were simple and did not involve the use of animal fat as a cooking medium.
In the absence of any material to the contrary, I am satisfied that the pre-war diet of the deceased as heard from Mrs Mathews and as recorded in the statements of Mr Allen and Mrs Allen and transposed into the analysis of Ms Simonsen has produced a "fat content" of 53.4 grams. It would appear from the analysis of Ms Simonsen that very little of that analysis comprised animal fat. Indeed from the foods recorded by Ms Simonsen in the making of her assessment of the fat content in the pre-war diet, the only animal fat which appears to have been consumed was butter, fish, eggs, and, subject to the manufacturing process, in bread.
The sample diet recorded by Ms Simonsen with respect to the post war diet requires some interpretation and informed judgement.
The sample diet prepared by her records lunch comprising of two chops, one steak, two sausages with gravy and mashed potato, pumpkin, cabbage and beer. This was not the evidence heard in this application. There was some evidence that the deceased consumed a meat pie and drank beer at lunchtime. There was some evidence that he attended a hotel and had a mixed grill. Whether the "mixed grill" comprised all of the above meat is uncertain. It would suggest that the applicant had a significant appetite, and there was some evidence that the deceased did consume comparatively greater quantities of food than other members of his family.
There was no evidence that the applicant consumed an afternoon tea yet the analysis of Ms Simonsen records that he consumed dry biscuits with cheese and tea with sugar. The cheese alone is found by her to have a high fat content. How much of that comprises animal fat is not recorded.
The evening meal is described as comprising five home made rissoles, mashed potato, carrots, peas, chocolate pudding and cream, and supper of chocolate and nuts. It is inconceivable - indeed it is inconsistent with the evidence - that the deceased would have consumed five rissoles every night. But in fairness the fat content of rissoles is recorded as being little different to the fat content of other meats referred to in the sample post war diet.
I think that little turns on this part of the decision because having regard to the pre-war diet and the earlier finding as to animal fat consumed, even if I were to find as a fact that the applicant consumed foods in a more modest degree than that which is recorded there is no doubt that he did increase his animal fat consumption by at least 40% and then to at least 70 grams per day.
Mr Smith submitted that even if the deceased's pre-war animal fat diet was doubled and his post war animal fat diet was halved there would still be a 40% increase to a level of at least 70 grams per day.
I would prefer to be a little more certain in making findings but the submission that he has made is not without merit.
There is also an abundance of evidence that the deceased did continue the diet that he commenced after service until shortly prior to his death. It follows that the increase in animal fat consumption did exist for at least 20 years before the clinical onset of the prostate cancer, which for the reasons found earlier, was diagnosed on the deceased's 70th birthday.
Mr Rudge relied on the relative maintenance by the deceased of body weight, which was suggested as an indication that the deceased did not consume animal fats in the quantity heard in evidence. Put another way, it was inferred that if the deceased had consumed animal fats in the quantities heard in evidence he would have necessarily suffered an increase in body weight.
There was no evidence that consumption of animal fats necessarily results in an increase in body weight. Doctor Cole has discounted this, in his opinions, and referred to a number of factors, which are responsible for increased body weight. Additionally most of us are aware of persons who we know are able to consume foods without increase in body weight. A number of us also know other persons who do unfortunately suffer difficulty controlling body weight despite modest amounts of food consumed and persistently maintaining a diet.
It follows that the inference raised by the respondent as to body weight is rejected.
Additionally it was put that the analysis of the fat content in the diet of the deceased pre and post war was inconsistent with the findings made by Doctor English in her report. It was said that the fat content pre-war in the diet of the deceased was well below that found by Doctor English and the fat content in the post war diet was considerably greater than the findings made by Doctor English.
I would not disagree with these observations except that the conclusions that she has drawn cannot retain their validity in a case such as the present where there is specific evidence of what was consumed pre and post war. The analysis of Doctor English is based on a number of different Commonwealth surveys of foods consumed in domestic households. In the present case where there is specific evidence of food consumed and more general evidence of what was consumed by a significant proportion of the population, the specific evidence must be accepted. I do so not only because I have accepted the evidence of Mrs Mathews, Mr Allen and Mrs Allen, but to reject it in favour of the evidence extracted from surveys of the foods consumed by others would be an irrational conclusion.
Mr Rudge submitted that the post war diet of the deceased was no different to that of many other Australians. I understood that this submission was put to demonstrate the unreliability of the analysis completed by Ms Simonsen. Doctor English found that the "total fat trends" between 1938/1939 and 1993/1994 varied from 133.5 grams of fat to 117.6 grams of fat. It follows on this analysis that the total fat content of the food analysed by Ms Simonsen (380.9 grams) was far in excess of the typical Australian diet. It followed therefore that her analysis should be rejected.
I am not prepared to reject her analysis. Her findings were based upon the diet provided to her prior to the hearing and which was - subject to the food consumed at lunch - consistent with the evidence at the hearing. There was no attack upon the calculations she made to find the total fat content. Even if the fat content of the foods consumed at lunch was totally excluded from her analysis the post war menu would comprise a fat content far greater than 40% than the pre war diet and far greater than 70 grams per day. Whilst her analysis is described as "total fat" and the Statement of Principles refers to "animal fat", an examination of the foods that she has analysed demonstrate a high derivation from meat or flesh or dairy products.
There was no evidence at the hearing, nor am I qualified to make any conclusion, on the total "animal fat" in the figures recorded by Ms Simonsen as the total "fat". But having regard to the sources of animal fat in the pre war diet of the deceased, in comparison to the sources of animal fat in the post war diet, I am left again with no doubt that the deceased did increase his animal fat consumption by at least 40% and then to at least 70 grams per day.

The remaining issue then is the connection between service and the adopting of a high animal fat diet subsequent to service.
In Re Keenan and Repatriation Commission (refer earlier) the Tribunal heard evidence from Doctor Kenardy that he had prepared a report entitled "Fat preference, Consumption and Habit". He also provided a report to the Repatriation Commission in March 1998. Extracts of his evidence are referred to at paragraph 30 and 48 of the decision.
The Tribunal's interpretation of his evidence and the regard for it is found at paragraphs 55, 56 and 57. Within paragraph 56 the Tribunal decided "thus the current state of expert knowledge regarding the mechanisms of fat preference and ingestion is of little assistance to the Tribunal other than as an indication that to focus on one factor namely documentation of an increased fat ingestion during a period of war service would be a gross over simplification. This conclusion is supported by Doctor Kenardy's oral evidence that "almost anything is possible".
Within paragraph 57 the Tribunal discussed a proposition put by Dr Kenardy associating animal fat preference with consumption of animal fat in childhood. That proposition is not relevant in the present case having regard to the deceased's pre war diet.
Doctor English in her report at page 15-20 set out a number of factors influencing food choices.
At page 20 of her report under the sub-heading "Proposition" Doctor English concluded-
"The argument that the circumstance of service with exposure to service rations induced a food behavioural change to a diet higher in animal fats is supported by evidence linking food preferences to exposure to characteristics of foods, hedonistic characteristics intrinsic to many high fat foods, image of specific foods as comprising proper meals for men and that food selection of women is constrained by their partners preferences".
In the next paragraph she concluded that one of the "strongest controlling factors in food preference" was the food exposure in early life (reported by her to be prior to the age of 16 years).
Whilst Doctor English continued to postulate alternative theories against the association between service, consumption of service rations and high fat diet subsequent to service, she concluded that the link between service and subsequent high fat diet "can only be described as tenuous and unsupported by a reasonable level of evidence".
Doctor Cole in his report of 20 March 2001 reported in part-
"Personally I find it quite reasonable that someone who had a poor, inadequate or tasteless diet during the war would welcome the satisfaction of rich foods with a high fat content".
The difficulty I have attaching much weight to the conclusions of Doctor Kenardy and Doctor English is that their evidence is not specific to the circumstances of this particular application. Additionally in the present application much is known about the deceased's pre-war diet as opposed to that evidence being absent in the Keenan application.
The opinion of Doctor Cole can be put no higher than a general proposition without any apparent consideration by him of other factors that might have influenced post service diet.
In consideration of other similar applications before this Tribunal I have been struck by the sentiment expressed by returned service persons as to the absence of any quality in the food and rations provided during service. The descriptions of the food provided in New Guinea in the present application were graphic and are referable to an opinion which remains vivid almost 60 years after service as to the extremely poor quality of food then available. The deceased apparently referred to army rations as "muck" and "slop". Mr Garth referred to bully beef as being "fat laden sludge" and on the rare occasions that it was chilled, he referred to it as "fat laden slab". It would appear also that there was either an absence of food or it was so poor that it was inedible because Mr Flanagan, in his statement at page 49 said that in addition to having to raid native gardens in New Guinea for paw paw and taro, he ate "a lot of tree rats and grasshoppers".
Having heard the evidence from Mrs Mathews and read the statements of the veterans as found within the T-documents I am satisfied that the deceased welcomed the opportunity to consume considerable quantities of palatable foods, which were readily available after discharge.
I was impressed by the statement of Mrs Mathews dated 24 October 2001 where she recorded (and said in evidence) that her father frequently referred to fried food as "good tucker". She also referred to her father having a "hatred" of service food to the extent that he deliberately chose to alter his diet.
A number of the veterans who provided statements all recorded that one of their first meals after discharge was of fried foods in large quantities. In fact Mr Garth said that he and others had four servings of a mixed grill at a café in Bourke Street on the day of discharge. Evidence of this type has been heard in many other veterans applications involving a similar hypothesis.
The deceased returned from service and maintained a high animal fat diet, for in excess of 50 years. It appears also that he ate large quantities of food, yet prior to service he enjoyed what appeared to have been a balanced healthy diet low in animal fat and maintained his high animal fat diet beyond the early 1970's when there was a proliferation of information within Australia as to the benefits of a diet low in animal fat.
Having regard to the above and to the apparent poor quality of food available during service I am satisfied that the deceased's service had such a profound effect upon him that an association does exist between his service and his post service consumption of a diet high in animal fat. I regard that link as being greater than tenuous and greater than mere possibility.
I can do no better than adopt paragraph 58 of the reasons for decision in Re Keenan where the Tribunal decided-
The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different from each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities, dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters which impact on veterans in their post war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation which requires reasonable certainty that a link does not exist before the claim can be rejected".
In all of the circumstances I am satisfied that the first three stages proposed by Repatriation Commission v Deledio (1998) 83 FCR 82 have been satisfied. I am also satisfied that there is no sufficient basis to determine, on the probabilities that the veteran's death was not war caused. It follows and I find that the death was war caused.
Therefore, the decision under review should be set aside and in substitution IT IS DECIDED that the death of the late Jack Albert Allen was war-caused.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ......Carolyn Irons ..........................
  Secretary
Date/s of Hearing  8 November 2001
Date of Decision  11 December 2001
Counsel for the Applicant        Andrew Smith
Solicitor for the Applicant
Counsel for the Respondent    Ken Rudge
Solicitor for the Respondent