Aust and Repatriation Commission
[2004] AATA 1188
•10 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1188
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/363
VETERANS' APPEALS DIVISION ) Re CHARLES AUST Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date10 November 2004
PlaceCanberra
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS - pension - operational service - issue of war-causation - malignant neoplasm of the prostate - hypothesis of war causation concerning increase in consumption of animal fat - statement of principles - hypothesis is pointed to by some of the material and contraindicated by other material - consideration of all of the material before the Tribunal – reasonableness of assumptions – hypothesis not raised on all of the material – hypothesis not reasonable - no ground for war causation beyond reasonable doubt - decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 13, 119, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Owens (1996) S147/1995
Bull v Repatriation Commission (2001) 188 ALR 756
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Hill (2002) 69 ALD 581
Hardman v Repatriation Commission [2004] FCA 1174 (14 September 2004)
Brennan v Repatriation Commission [2004] FCA 1431 (3 November 2004)
Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000)
REASONS FOR DECISION
November 2004 Mr S. Webb, Member 1. By this application Charles Aust seeks relief from a determination of the Repatriation Commission (“the Commission”) denying his claim for an increase in his Disability Pension on the basis that his malignant neoplasm of the prostate was not war-caused.
2. The matter came on for hearing in Canberra on 27 to 29 October 2004. Mr Aust was represented by Mr C. Colbourne, counsel. The Commission was represented by Ms J. Macdonnell, counsel. Mr Aust gave oral evidence at the hearing, as did Ms C. Richards, Mr J. Macdonald and Dr R. English. Before me were documents prepared pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and other materials that were tendered and labelled at the hearing.
factual context
3. Mr Aust was born on 13 December 1922. As a child in the 1930s he lived with his family in Merrylands, then “on the outskirts of Sydney”. His family included his parents, one elder sister and two younger brothers. His mother died in or about 1936.
4. Mr Aust commenced his working life at the age of 13, as a messenger and subsequently a storeman/packer employed by David Jones in Sydney. He enlisted in the Royal Australian Navy (“the Navy”) on 2 June 1941 and was mobilised for war service on 30 June 1941. He has operational service from 2 June 1941 to 26 July 1946. During the period of his service he progressed from Stoker II to Leading Stoker. The details of his service are in Exhibit R1 and it is not necessary to repeat them here.
5. After demobilisation Mr Aust lived in a boarding house in Croydon that was owned and operated by his aunt. He returned to his previous employment with David Jones where he remained for 2 years. He then obtained employment as a rouseabout and wool presser in the shearing industry.
6. In 1949 Mr Aust purchased a cake shop in Singleton with his brother. He married in 1950. In or about 1955 he sold the cake shop and purchased a bakehouse in Queanbeyan. Subsequently he expanded his baking business into Ainslie, supplying various outlets in Canberra until 1979. He sold the business in 1979 and worked, thereafter, for other bakers for approximately 12 months. He moved to Moruya and obtained employment in the fuel industry, managing a Golden Fleece depot for nine months and then working for Caltex as a driver and office manager until he retired in 1988. He has not worked since.
7. Mr Aust is paid a Disability Pension at 70 percent of the general rate and has the following war-caused conditions:
Solar skin damage (1991)
Melanoma of skin (1996)
Asbestosis (2000)
8. In 1996 his Disability Pension claim in relation to adenocarcinoma of the prostate was denied.
9. On 10 October 2002 Mr Aust lodged a Disability Pension claim in relation to malignant neoplasm of the prostate (T4).
10. On 10 March 2003 a Commission delegate decided to deny Mr Aust’s claim, finding that malignant neoplasm of the prostate was not related to his operational service in the Navy (T2).
11. On 2 April 2003 Mr Aust applied for review of that decision by the Veterans’ Review Board (“the VRB”) (T9).
12. On 27 June 2003 the VRB decided to affirm the Commission’s decision (T13).
13. On 12 September 2003 Mr Aust applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision (T1).
issues for determination
14. It is not in dispute that Mr Aust has operational service and suffers from malignant neoplasm of the prostate, with a clinical onset in or about September 1996. Nor is it in dispute that the earliest date of effect of a decision favourable to Mr Aust would be 10 July 2002.
15. The issue for determination is whether Mr Aust’s malignant neoplasm of the prostate is war-caused.
legal priciples
16. Mr Aust’s application rises for consideration pursuant to the Veterans’ Entitlements Act 1986 (“the Act”). The Commonwealth is liable to pay a pension by way of compensation to a veteran in relation to a war-caused incapacity in accordance with the Act (s.13). A disease contracted by a veteran will be a war-caused disease if, inter alia, it arose out of or was attributable to any eligible war service rendered by the veteran (s.9). The standard of proof that is to be applied when deciding whether a disease is war-caused is set out at s.120 of the Act. That is “the Commission shall determine that… the disease is a war-caused disease… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination” and will be so satisfied “if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the… disease… with the circumstances of the particular service rendered by the person” (ss.120(1) and (3)).
17. In this case, as a Statement of Principles (“SoP”) in relation to Mr Aust’s claimed disease has been determined by the Repatriation Medical Authority (s.196B) and is in force, a hypothesis connecting Mr Aust’s disease with the circumstances of his service will only be reasonable if “the Statement of Principles… upholds the hypothesis” (ss.120A(3)). A factor in an SoP is related to the service of the claimant if, relevantly, it “arose out of, or was attributable to” or “it was contributed to in a material degree by” that service, or the disease “would not have occurred … but for the rendering of the service by the person” (subs.196B(14)).
18. The approach to be adopted when applying s.120 and 120A was authoritatively set out in the decision of Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
1. The Tribunal must consider all of the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)…
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that…the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question or onus of proof or the application of any presumption will be involved.”
19. At issue in this case is the manner in which the Tribunal must give consideration to “all of the material which is before it” in order to determine whether “that material” “points to” a hypothesis of the requisite kind. It is germane to consider the relevant caselaw concerning this issue.
20. In rejecting an application for special leave to appeal in Repatriation Commission v Owens (1996) S147/1995 , the High Court said:
“It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.”
21. In Bull v Repatriation Commission (2001) 188 ALR 756 Emmett and Allsop JJ said:
“[18] It is important to understand the following about [East v Repatriation Commission (1987) 16 FCR 517]. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was obviously not fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis…
[19] … What is required of the decision-maker by subs 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the… disease… with the circumstances of the particular service.
The view of the Full Court in East, supra at 532-33 have been followed by later Full Courts: Webb v Repatriation Commission (1988) 19 FCR 139, 141-2 and 147; Repatriation Commission v Whetton (1991) 31 FCR 513, 515; Bell v Repatriation Commission (1992) 26 ALD 545; and Repatriation Commission v Bey (1997) 79 FCR 364, 371, 372-73, 375-6 (a five member bench).
[21] There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.”
22. In Elliott v Repatriation Commission (2002) 73 ALD 377 Stone J held:
“[5] The "whole of the material" may include material put forward by the applicant or by the Commission itself. The Commission must consider this material to determine if it raises an hypothesis connecting the veteran's condition with the relevant service and if any such hypothesis is reasonable; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569 - 570. As was emphasised in Deledio at 98, there is no question of fact finding at this stage. Indeed, at this point the Tribunal is entitled to make assumptions about the existence of facts; Repatriation Commission v Stares (1996) 66 FCR 594 at 600 - 601. The decision whether the material enables the formation of a reasonable hypothesis must be made to the "reasonable satisfaction" of the Commission; s 120(4) of the Act. If, having considered the whole of the material, the Commission decides to its reasonable satisfaction that there is no such hypothesis then the application must fail; Deledio, points 1 to 3 at 97.
…
[25] … In attempting to determine if the material before the Commission raises an hypothesis connecting the veteran's condition with the particular service, and if any such hypothesis is reasonable, the Tribunal was required to consider and analyse that material. This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis.”
23. In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Court said:
“57 Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.”
24. In Hardman v Repatriation Commission [2004] FCA 1174 (14 September 2004) Hill J reviewed the authorities and held:
“[39] …the Tribunal is required, in determining whether the material before it raises a reasonable hypothesis, to consider all of the relevant material before it, whether or not that material is favourable or not to the hypothesis. Secondly, it is clear that the Tribunal is not to determine the correctness or otherwise of facts raised whether those facts are in favour of or contrary to the hypothesis. Thirdly, in determining whether an hypothesis is reasonable the Tribunal makes a finding of fact which this Court may not overrule unless the finding is so unreasonable that it could not properly be made.
[40] In the present case the raised facts were that Mr Hardman did not display depressive symptoms until after he was removed from his ship for the purposes of the operation. He did upon his return to the ship. From these raised facts it may be inferred, it was said, that the depressive symptoms which he thereafter suffered arose from the removal and subsequent operation which took place while he was on operational service.
[41] The fact, if it be a fact, that Mr Hardman, at the time he joined the ship, was happy and relaxed but that after he returned from the operation he was withdrawn, may both be said to be raised facts relevant to the hypothesis. However, in the material which was before the Tribunal there were other matters which if true, might go to disproving the hypothesis, namely that the alcohol questionnaire and subsequent medical reports made no reference to depression. It was not for the Tribunal to determine whether these matters were or were not correct as a matter of fact. However, with respect to the submissions, it is not at all clear from the Tribunal’s reasons that it did so. It was required to determine, whether on the basis of all the material before it there was raised the relevant hypothesis claimed to be reasonable. It was for the Tribunal to determine whether the raised facts did indeed ground the hypothesis that there was a connection between the depressive disorder from which Mr Hardman claimed to suffer and his operational service. In my view, it was open to the Tribunal to determine by reference to all the material before it, including the reports, that the raised material did not ground the hypothesis (and this was particularly the case because the Tribunal found that there was nothing in the available material which suggested that Mr Hardman received or required "ongoing management" by 1967 which was a requisite component of the Statement of Principle). Accordingly the applicant has not shown that the Tribunal erred in law. Particularly, in my view, the applicant has not shown that at this, the third stage in the Deledio sequence, the Tribunal engaged in fact finding. Rather it did what it was obliged to do, namely consider all of the material before it in determining whether the material before it raised a reasonable hypothesis. It found it did not.”
25. In Brennan v Repatriation Commission [2004] FCA 1431 (3 November 2004), Selway J said at [16]:
“… the relevant hypothesis has to be looked at in the overall context of the claim being put. Plainly enough, if there are disputes in the evidence then the hypothesis at least at the third step of the Deledio analysis must take the best view possible from the applicant’s perspective. However, where, as here, all evidence relating to his condition is ultimately derived from the applicant himself and none of that evidence is relevantly in dispute, it is plainly appropriate to look at all of it to determine what the relevant hypothesis is.”
26. Plainly, on these authorities, the Tribunal must consider all of the material before it when determining, as a matter of fact, whether the material raises a reasonable hypothesis. In so doing, the Tribunal must not make findings of fact about the correctness or otherwise of the material raised by either party for the purpose of grounding or contraindicating the hypothesis. Furthermore, each essential element of the hypothesis must be pointed to by the material before the Tribunal. Nonetheless, a hypothesis is advanced on assumptions that are not proven. To the extent that reliance is to be placed upon such assumptions when ascertaining whether the hypothesis is reasonable, the reasonableness of the assumptions must be examined (see Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000) at [12]).
27. When considering a claim the Commission, and in its shoes this Tribunal, is to act according to substantial justice and the substantial merits of the case, taking into account any difficulties that lie in the way of ascertaining the existence of any fact (s.119).
summary findings
28. Mr Aust has operational service from 2 June 1941 to 26 July 1946 for the purposes of s.9 of the Act.
29. Mr Aust suffers from malignant neoplasm of the prostate (“the disease”), the clinical onset of which was in or about September 1998.
30. Mr Aust posited a hypothesis that the disease was caused by a 40 percent increase in his consumption of animal fat, maintained at a level of at least 70 grams per day over at least 20 years prior to the clinical onset of the disease, which arose out of or was related to his operational service. I am reasonably satisfied that that hypothesis is not raised by the whole of the material.
31. The relevant SoP that is in force is SoP Number 84 of 1999 as amended by SoP Number 69 of 2002 concerning Malignant Neoplasm of the Prostate.
32. I am reasonably satisfied that the whole of the material does not raise a reasonable hypothesis connecting Mr Aust’s disease with his operational service that is consistent with factor 5(c) of the relevant SoP. The material as a whole does not point to Mr Aust increasing his level of animal fat consumption by at least 40 percent on service nor does it point to any subsequent increase being related to his operational service. I so find.
33. I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Aust’s disease was war-caused.
decision
34. The decision under review is affirmed.
reasons for the decision
35. I have carefully considered all of the material before me, the submissions of the parties, the relevant caselaw and legislation when making this decision.
36. No issues of credit were pressed concerning Mr Aust’s evidence. Nonetheless it must be acknowledged that Mr Aust’s recollection of the details of his diet, especially in the period prior to his mobilisation in 1941, was impeded by the passage of more than 60 years. That is unsurprising and does not bear on Mr Aust’s credibility as a witness. Evenso, it is necessary to consider Mr Aust’s recollections about his pre-service diet in relation to other relevant material that is placed before me.
service
37. Mr Aust served in the Navy from 2 June 1941 to 26 July 1946 and served overseas during that period in World War 2. The period of his service is operational service under the Act.
disease
38. Mr Aust suffers from malignant neoplasm of the prostate, among other conditions. It is not in dispute that the clinical onset of that disease was in September 1996 (T4, folio17). and I am reasonably satisfied that is so.
hypothesis
39. Following the approach set out in the Deledio case (supra), I must first consider whether the whole of the material raises a hypothesis connecting Mr Aust’s malignant neoplasm of the prostate with his operational service. As will appear, I am reasonably satisfied that it does not.
40. The hypothesis posited by Mr Aust was that:
(a)His disease was caused by a high level of animal fat consumption, being at least 70 grams per day, over a period of at least twenty years prior to the clinical onset of the disease;
(b)that level of animal fat consumption represented an increase of at least 40 percent from his pre-service level of animal fat consumption;
(c)the 40 percent increase in his consumption of animal fat was related to his diet on operational service; and
(d)he was introduced and became habituated or accustomed to a diet containing high levels of animal fat when rendering operational service in the Navy between 1941 and 1946 and continued to consume a diet that was high in animal fat thereafter.
41. In support of this hypothesis Mr Aust pointed to material concerning his diet pre-service, during service and after service to 1979. That material included statements and questionnaires completed by Mr Aust in relation to his pre-service diet. Also before me was material prepared by Dr English, Nutrition Consultant, on the basis of Mr Aust’s recollections, as amended (Exhibits R4, R5 and R6) and material prepared by Ms Richards, Dietitian, in response to Dr English’s reports (Exhibit A2).
42. It is necessary to examine this material and the oral evidence that was given at the hearing, without finding facts, to properly ascertain whether the whole of the material points to each of the essential elements of the hypothesis posited by Mr Aust and to consider the reasonableness of the assumptions advanced thereby.
animal fat intake prior to service
43. Mr Aust estimated that the average level of his animal fat intake in his pre-service diet was 38 grams per day (T3, folio18). Following communication with Mr Aust, Dr English estimated his pre-service level of animal fat consumption to be 68.4 grams per day (Exhibit R4, p9). Mr Aust’s dietary questionnaire returns to Dr English, and variations thereto, are set out at Exhibit R4, Attachment 2. However, in her oral evidence Dr English stated that Mr Aust’s oral evidence indicated that his dietary survey returns were invalid and she was unable to estimate the level of his animal fat intake prior to service.
44. Mr Aust gave oral evidence about elements of his pre-service diet that were either inconsistent with or omitted from the information he had previously provided in relation to his claim. His oral evidence concerned the quantity and frequency of his consumption of full cream milk, the variety and frequency of egg dishes, the size and frequency of vegetable portions, including mashed potatoes, the inclusion of dishes such as mince stew, shepherd’s pie, rissoles, fruit tarts and custard, and the nature of foods purchased for lunch from time to time, such as pie, peas and gravy or sandwiches with meat or pineapple fillings (for example, Transcript 27.10.04, pp 11, 22-27 and 43).
45. Plainly, there are questions about the validity of Mr Aust’s dietary return for the pre-service period, based as it is on his recollections of his diet more than 60 years ago. Proof of facts is not in issue at this stage, however the assumptions about Mr Aust’s pre-service level of animal fat intake must be considered in relation to the whole of the material before it can be said that those assumptions are “raised facts” that are “pointed to” by the material.
46. Dr English discussed the validity of data derived from dietary recollection in general terms and set out “external measures to objectively validate recalled dietary data” (Exhibit R4, Attachment 5, p54). In relation to such questions arising in the so called “Queensland Grouped Action”, President O’Connor, as she then was, directed that “[t]he information contained in the applicants’ diet questionnaires is to be validated according to a common methodology” and specified four methods of validation (Exhibit R4, Attachment 4). Applying the validation methodologies to Mr Aust’s reported dietary data, Dr English reported that “[t]here is general consistency between the information in the daily eating pattern (DEP) and the food frequency record (FFR), provided by Mr Aust” (Exhibit R4, p11). Dr English assessed “the veteran’s energy intake from the reported daily eating pattern against an estimate of the veteran’s physiological requirements” and reported that:
·Mr Aust’s reported pre-war energy intake per day was 8,221 kilojoules (Exhibit R4, p12);
·His pre-service basal metabolic rate per day was 7,251 kilojoules, based on his then age and weight on enlistment (67.0 kgs) (Exhibit R4, p13);
·An activity factor of 2.0 should be applied on the basis of his work as a storeman/packer and his description of “an active lifestyle” (Exhibit R4, p13);
·Applying the Schofield equation, his daily energy requirement was 14,502 kilojoules, or allowing for a 10 percent deviation, 13,052 kilojoules per day (Exhibit R4, p14);
·On the basis of Mr Aust’s reported dietary intake and his minimum daily energy requirement, he would have had a deficit in energy intake of 4,831 kilojoules per day, which would result in a weight loss of 1 kilogram per week (Exhibit R4, p14); and
·“The only scientific explanation for the large variation between the veteran’’s pre-war energy intake and his energy requirement is that the pre-war diet return for Mr Aust is clearly invalid…” (Exhibit R4, p14).
47. Ms Richards, Dietitian, agreed with Dr English “that there is a large deficit between [Mr Aust’s] predicted [energy] requirements and reported intake. Based on theory, energy intake falls short of requirement by 4,831 kJ per day” (Exhibit A2, p4). Ms Richards gave oral evidence that Mr Aust’s pre-service activity level “lies between fairly moderate exercise and a heavier exercise… It’s not an overly heavy energy use, but it would certainly be moderate and above… So, you know, it might be a factor of 1.8, it might be a factor of 1.9. It might be as [Dr English] has got in there, a factor of 2. It might have been over…” (Transcript 27.10.04, pp52-53). Nonetheless, Ms Richards expressed the opinion that the deficit may be explained by:
· Mr Aust having insufficient food in the pre-service period, which she reported was supported by “Mr Aust’s reports of often feeling hungry, his weight on enlisting at the lower end of the Healthy Weight Range (HWR), and evidence of catch up growth on a more generous food intake during service” (Exhibit A2, p4); and
· Mr Aust consuming more energy than he recalled “but not necessarily without extra animal fat… it is possible that Mr Aust ate more carbohydrate containing foods such as fruit, starchy vegetables and porridge to provide extra energy, without the addition of extra fat to the food” (Exhibit A2, p4).
48. It is necessary to consider Ms Richards’ opinions in relation to Mr Aust’s oral evidence and other material that is before me without finding facts. Ms Richards’ gave oral evidence that her opinions are based on the documentary materials apparently provided to her by Mr Aust’s representative and information provided by Mr Aust in a one hour consultation. By her own account she did not take a detailed history from Mr Aust and did not repeat the work previously undertaken by Dr English. Considering all of the material, it appears that some of Ms Richards’ assumptions and conclusions are inconsistent with Mr Aust’s evidence and are not pointed to by the material before me.
49. Mr Aust gave oral evidence in chief that there were “not many times” that he was hungry in the pre-service period and that hunger was an occasional occurrence (Transcript 27.10.04, p6). His evidence under cross-examination indicated that it was during “the great depression” as a child that he witnessed others going hungry and developed “the idea then that we used to eat as much as we could whenever we could” (Transcript 27.10.04, pp 20-21). Mr Aust’s evidence was “even through the depression my father had work and with a family of four children the garden etc. was a big help with the family budget and also meant a very healthy lifestyle” (T4, folio 18) and “we had a good three meals a day” (Transcript 27.10.04, p9).
50. When Mr Aust’s evidence concerning his pre-service diet is considered as a whole, that evidence does not point to there being a frequent insufficiency of food or a deficiency in his energy intake in the pre-service period as posited by Ms Richards. The material concerning Mr Aust’s Body Mass Index (“BMI”) on enlisting (21.4), albeit in the lower healthy range, also points to that conclusion (Exhibit A2, p2).
51. Ms Richards’ speculated that the deficiency found by Dr English in Mr Aust’s pre-service energy intake on the reported data may be explained by his consumption of larger amount of carbohydrates, in starchy fruit and vegetables or porridge for example, that did not contain animal fat. However, Mr Aust gave oral evidence that he consumed greater amounts of beans and mashed potatoes with butter and more milk than he had previously reported, as well as additional dishes, such as shepherd’s pie and rissoles. Plainly, some of those additional dietary elements did include animal fat. Dr English gave evidence that even if those additional dishes were in substitution of dishes reported by Mr Aust, such as rabbit, the fat content of the new dishes would be increased. Thus it can be seen that the whole of the material does not point to Mr Aust consuming larger than reported amounts of carbohydrate without additional animal fat.
52. Ms Richards considered that the energy deficiency in Mr Aust’s reported data could be addressed by a mathematical adjustment of the animal fat to the estimated energy requirement to result in an intake of 108.5 grams of animal fat per day, noting (Exhibit A2, p6):
“It needs to be taken into account that this is likely to be an exaggeration because fatty foods were portioned out in the family for budgeting purposes and Mr Aust could have eaten more of foods such as fruit and oats that are low in animal fat to increase his daily energy intake.”
Dr English considered such a mathematical exercise to be an exercise in speculation that was without factual or scientific basis and concluded (Exhibit R4, p14):
“…that the diet return for the veteran’s pre-service period is invalid is further supported by a comparison of Mr Aust’s pre-war diet with community food patterns and nutrient intakes as documented in the 1936-38 or 1944 national household dietary surveys. The average intakes of animal fat of adult males in 1936-1938 and in 1944 were 126.0g/day and 129.0g/day respectively, and for energy were 15,830kJ/day and 14,057kJ/day respectively.”
Dr English’s conclusion is pointed to by the inconsistencies in Mr Aust’s documentary and oral evidence about his pre-service diet to which I have referred.
53. With regard to the overall amount of animal fat in Mr Aust’s pre-service diet, Ms Richards reported that Mr Aust’s family took steps to minimise animal fat consumption, observing that “…they were made to keep to a half a teaspoon of dripping per slice of bread, and that where possible, he remembers his mother skimming casseroles and skimming soup, so that you would make the food the day before, allow it to cool, and then skim off extra fat. So, the culture in the family was not to slather everything with fat. Or to avoid it if it was possible” (Transcript 27.10.04, p55). However, Ms Richards’ assessment is not consistent with Mr Aust’s evidence that fat was skimmed from casseroles and soups for later use on bread and in cooking.
54. Ms Richards reported that “[t]he philosophy of “waste not, want not” continued and without reason to change Mr Aust became a regular meat eater, eating the fat as well as the lean portions and using methods of cooking that included large amounts of fat” after marrying in 1950 (Exhibit A2, p3). Under cross-examination Ms Richards explained “what I’m meaning there, he was eating the fat as well as the lean portion of the meat” (Transcript 27.10.04, p59). Ms Richards’ evidence is not consistent with Mr Aust’s dietary returns (Exhibit R4, Attachment 2), the report by Professor R. Mattick (Exhibit R7, pp4-5) and Mr Aust’s oral evidence which indicates that he was a regular meat-eater in the pre-service period and that he never liked the fat on meat, “I would cut the fat off, and still do” (Transcript 27.10.04, p36).
55. Plainly, this evidence points to a culture in Mr Aust’s family, pre-service, of minimising waste and reusing animal fat when it was convenient to do so. Ms Richards pointed out in her oral evidence that such practices may deliver a reduction in the total amount of animal fat entering the Aust household. However, that does not point to a reduction in the amount of animal fat being consumed. Contrary to Ms Richards’ assumptions, the material before me points to the fat being consumed rather than thrown away. It also points to Mr Aust being a regular meat-eater and not liking fat on meat before and after service.
56. The whole of the material points to Mr Aust’s reported dietary returns and Dr English’s related estimation of his pre-service level of daily animal fat intake (68.4 grams per day) being incorrect and physiologically unsustainable. One is left to consider Ms Richards’ extrapolation of Mr Aust’s possible animal fat intake prior to service on the basis of his energy requirement (108.5 grams per day), even though that does not have any scientific basis, or the daily average animal fat intake of an adult male based on the 1936-1938 household dietary survey (126.0 grams per day). In any event, the whole of the material does not point to the pre-service level of animal fat consumption contended for by Mr Aust.
animal fat intake on service
57. Dr English estimated that the level of animal fat content of Mr Aust’s diet on service was 100.8 grams per day (Exhibit R5 at [2.2]). She revised that estimate on the basis of oral evidence from Mr Aust concerning the amount of time he spent at sea as opposed to on shore and concluded that her best estimate was 104.2 grams of animal fat per day (Transcript 28.10.04, p118). In her reports Dr English referred to the report by Mr J. Macdonald, RAN Captain (rtd), (Exhibit R3), source documents and data pertaining to analysis of the animal fat content of service rations relevant to the circumstances of Mr Aust’s service. It is not necessary to list those references here.
58. Ms Richards expressed the opinion that the estimate of animal fat in Mr Aust’s service rations in England appeared to be “out of place” and may “skew your data if it’s inaccurate”, but pointed to no source material to support her statement (Transcript 27.10.04, p67). Ms Richards declined to estimate the amount of animal fat in Mr Aust’s service diet.
59. The material points to Mr Aust consuming an average of 104.2 grams of animal fat per day during the period of his operational service.
60. Mr Aust’s service records point to the following:
(a)On 29 June 1941 Mr Aust weighed 10 stone seven and a half pounds (147.5lbs) and was 5 feet nine and a half inches tall (T3, folio 9);
(b)On 17 May 1943 he weighed 159lbs and on 17 March 1944 he weighed 160lbs (Exhibit R2);
(c)From 3 July to 11 October 1945 Mr Aust suffered from a fractured left fibula while serving on Magnetic Island (Exhibit R2);
(d)On 12 July 1946 he weighed 12 stones and eight pounds (176lbs) and was 5 feet 10 and a half inches tall (T3, folio 11).
61. Dr English explained Mr Aust’s increase in height between 1941 and 1943 as a function of normal growth within accepted levels, noting in her oral evidence that growth in males may occur “until 20, 21, but it’s very much a genetic factor” (Transcript 28.10.04, p112). Ms Richards reported “[i]t is possible that Mr Aust had some catch up growth during service which is consistent with reports that he was hungry often during the years prior to enlisting and not hungry during his years of service” (Exhibit A2, p3). However, Ms Richards accepted that the height data may be inaccurate and that Mr Aust had a BMI of 21.4 on enlisting and a BMI of 25.0 when demobilised in 1946, and gave oral evidence that “[t]he healthy weight range extends from 20 to 25 although [the World Health Organisation] has now got the lower limit at 18.5” (Transcript 27.10.04, p51). As can be seen from the foregoing, Ms Richards’ assumptions concerning “catch up growth” are based on an assumption that Mr Aust was often hungry and had insufficient food in the pre-service period. However, that is an assumption that is not pointed to by the evidence as a whole.
62. Dr English explained Mr Aust’s increase of 11.5lbs in weight in the 1941 to 1943 period on service as a result of an increase in weight bearing exercise following enlistment, but did not rule out that Mr Aust’s growth at that time may also have contributed “[i]f he maintained his body composition” (Transcript 28.10.04, p114). I pause to note that the oral evidence of Mr Macdonald concerning the likely activity levels of a Stoker (Transcript 27.10.04, pp84 to 87) was consistent with Mr Aust’s oral evidence in chief concerning his activity levels on service at sea (Transcript 27.10.04, p15):
“How did the physical nature of activities in the Navy compare with those at, say, David Jones?‑‑‑Actually entirely different, but as far as the actual physical exertion, I suppose I would have - I would certainly use a lot more on the ships because of the size and the distance between decks and positions. She had at least four decks, and if you went down into the bilge, it was five decks and to get to it, you had to sort of go from A to B. The engine rooms and boiler rooms, of course, were right down the bottom of the ship and to access the various spots, we had ladders to climb and you couldn't go from anywhere to anywhere without climbing these ladders, so it's fairly heavy going at times.
Right?‑‑‑I would say it would be almost twice as much as the ‑ ‑ ‑ ”
The whole of the material points to Mr Aust’s increase in height, if there was in fact any such increase, occurring in the early years of his service as a result of growth within the normal range for a male and the increase in his weight between 1941 and 1943 being attributable to an increase in weight bearing exercise.
63. Dr English gave evidence that Mr Aust’s increase of 1lb in weight between 1943 and 1944 was a function of normal weight variation from day to day (Transcript 28.10.04, p118). Concerning Mr Aust’s increase of 16lbs in weight from 1944 to 1946, Dr English gave oral evidence that such an increase would require approximately 200 kilojoules extra per day. Mr Aust gave oral evidence that he consumed an average of three 375ml glasses of full strength beer per day and developed a liking for milk while serving on Magnetic Island. Dr English and Ms Richards agreed that each glass of beer would equate to approximately 500 kilojoules and consuming an extra 1,500 kilojoules would be likely to cause an increase in his weight at that time, especially as he broke his leg and had an extended period of forced inactivity in 1945. With regard to Mr Aust’s assertion that he developed a liking for milk on Magnetic Island, his own evidence points to him developing a liking for milk, which he consumed by preference as a child, before service. (Transcript 27.10.04, p17)
64. Ms Richards was re-examined by counsel for Mr Aust in relation to the likely effect of Mr Aust ceasing to drink alcohol after leaving Magnetic Island and returning to sea for 10 months on HMAS Quadrant (Transcript 27.10.04, p80):
“Assuming that he wasn't drinking during that [10 month] period would any weight increase due to the alcohol disappear once that was taken out of the equation?‑‑‑If he ate the same amount and he took the beer out, yes. And we don't know here either because I think my impression is that when he was on Magnetic Island he was fairly inactive, and I guess back on ship he would have been more active, so there's a lot of variables there. But it is a high energy food and in that amount you may expect I guess some weight adjustment.”
65. Mr Aust gave oral evidence that the only time he obtained fresh fruit on seagoing ships was during his tour of duty on HMAS Quadrant, after being stationed on Magnetic Island (Transcript 27.10.04, p19):
“But on the seagoing ships, I think the only time that I ever got fresh fruit on the seagoing ships, and that was on Quadrant, when we were up around - we were in, pardon me, we were in Ambon area, and we could then do a bit of trade. We went in some very unheard of places amongst the islands picking up these Jap prisoners of war, and we could go ashore with the rags out of the rag bag, which would be shorts and shirts from us and the Army, which we were using as rags, we'd take them ashore and we'd trade them for bananas. And I've seen the stokers' deck just adorned with bananas.”
Dr English gave oral evidence that “for a good sized banana you’d be looking at 500 kilojoules” (Transcript 28.10.04, p120).
66. This material points to the increase in Mr Aust’s weight in the period from 1944 to 1946 being due to a number of variables including his consumption of beer and milk on Magnetic Island, and that any weight loss thereafter as a result of a reduction in his beer consumption was likely to have been affected by an increase in Mr Aust’s level of activity and the supplementation of his service rations at sea with a supply of fresh bananas.
67. In relation to Mr Aust’s submission that his service diet contained more animal fat, to which he became addicted or habituated, than his pre-service diet, it is germane to consider his evidence in chief concerning any change in his pre-service and service diets (Transcript 27.10.04, pp15 and 19):
“What was your diet like on service?‑‑‑Well, the diet, I would say, would be - the biggest difference I found in service was the amount of food that I had and compared it with what we had ashore… there was always plenty of it and sometimes there was dash - well, standing dash. It means that if you want extras, the type of messing on Canberra was what they call mess-deck messing inasmuch as if you had a mess of 12 stokers, one would be the mess-hand who would bring the food down from the galley. And then when - you were allocated what you wanted, and if there's too many in the pot, you ask for dash, you have more. Occasionally that would happen, but I would say there always sufficient food there for us, more than what we were used to.
What about the nature of the food? Was it similar to what you had before?‑‑‑Look, I cannot recall exactly what type of food, but I do know for a fact - and that - every day of the week was the same, anywhere, for any ship in the Navy, and I'd say ashore as well. I can recall at least two of those meals which was a Wednesday morning, every Wednesday morning, you had lamb's fry and bacon. Every Sunday morning on the big ships such as cruiser - as the Australia or Canberra, we had our own bakery. You would have boiled eggs, coffee and bread rolls. They're the only two I can really recall apart from the fact there was always plenty of food there.
But the nature of the food, was it the same as what you had had before you joined the Navy?‑‑‑No, they were entirely different. No, no, no. There was - in fact, vegies were almost - after about a fortnight at sea, it was almost non-existent the fresh vegetable. I've seen spuds on the upper deck virtually unusable because they could not be refrigerated. In fact, this was one of the big things later in our ships because they were built in England and the refrigeration space in those days was not, as I see it, really meant for those conditions, not in the tropics where we went and operated. Consequently, the amount of fresh food was very little after about a fortnight at sea.
Right. Apart from the fresh vegetables, was there any other difference between the food you had in the Navy and the food you had at home?‑‑‑Well, at home, tinned food was never eaten at home.
I'm sorry?‑‑‑Tinned food was never eaten at home, except for jams and things like that.
Right. And in the Navy?‑‑‑In the Navy, well we would have - I can recall having camp pie and bully beef - the quantities I'm not too sure of, but there was always sufficient there for us.
…
You've talked about the matter of fruit and vegetables in your diet prior to joining the services, what was it like while you were in the Navy?‑‑‑Well, fruit - in the Navy, when I was on the seagoing ships, fruit was very, very minimal inasmuch as we could only sort of carry so much. If we came into port they would always bring on fresh fruit, but I'd say a week out and that would be the finish of the fresh fruit angle. When I was up in Magnetic, where I was for 15 months, we always had fruit there, and it was quite good as far as that was concerned. But on the seagoing ships, I think the only time that I ever got fresh fruit on the seagoing ships, and that was on Quadrant, when we were up around - we were in, pardon me, we were in Ambon area, and we could then do a bit of trade...”
68. That evidence points to the significant change in Mr Aust’s pre-service and service diets being in terms of the amount of food and the inclusion of tinned rather than fresh fruits, vegetables and meat, especially during periods in England and at sea. To the extent that Mr Aust recalled seeing food being cooked in fat or “floating in fat” on service, he gave oral evidence that he would not eat the fat on his plate in those instances (Transcript 27.10.04, p42). That is consistent with other material to which I have referred that does not point to a 40 percent increase in the amount of animal fat in Mr Aust’s service diet compared with his pre-service diet.
animal fat intake post-service
69. Considering the material concerning Mr Aust’s activities and diet after service, I note that Dr English reported (Exhibit R4, p18):
“Concerning post-service changes, it may be concluded that Mr Aust’s animal fat intake/day did increase immediately post-service based on his calculations of the fat intake in his diet from 1946 to 1949, or 148g/day (1946 to 1948) and 157g/day (1948 to 1949). Then this increase in animal fat intake continued as evidenced by my calculation of Mr Aust’s animal fat intake from 1949 to 1979 as 188.1g/day (validated in Section 13b).”
These estimates were not substantially challenged or contraindicated by other material before me.
70. Plainly, the material points to an increase in the level of Mr Aust’s animal fat intake after service. The question that must be answered is whether there is material pointing to that increase being attributable to his period of service. I am satisfied that there is not.
71. There is material that points to Mr Aust experiencing a change in his diet on enlistment, whereby he consumed less fresh food and more tinned food, especially during periods at sea, than he had previously. It appears that such tinned food included fruits, vegetables and meat, such as Bully Beef. There is no material pointing to Mr Aust consuming such foods after service. On the contrary, his own evidence was that from 1946 to 1948 his aunt provided “good food”, including cereals and cooked breakfasts, and he returned to purchasing his lunches from Sargent’s: “a couple of pies and mash for about ninepence and probably a bread roll, a glass of milk. It was always my preference, a glass of milk over tea” (Transcript 27.10.04, p17). During cross-examination Mr Aust agreed that his aunt’s style of cooking in the boarding house was in a similar style to that of his mother (Transcript 27.10.04, p32):
“Now, after discharge, when you go back to David Jones, unfortunately, without a promotion, and you lived with your aunt, your aunt's house?‑‑‑Who ran a boarding house.
Who ran a boarding house, so others were there too. Your aunt, similar style of cooking to your mother?‑‑‑Yes. Yes, exactly. That was the general style in those days for that socio-economic area.
Yes?‑‑‑Very basic and very good food.
Yes. So who ‑ ‑ ‑?‑‑‑And plenty of it.
Sorry?‑‑‑And plenty of it.
Plenty of it. So her style's the same as your mother's style, and your sister learnt that style ‑ ‑ ‑?‑‑‑The only difference being the amount of meat available, actually.
Okay. So there's simply more - more meat?‑‑‑More meat really, that's the main thing, and more bacon.”
72. This material points to Mr Aust consuming a diet after service that was similar to his pre-service diet, with the exception that there was more meat. Mr Aust’s dietary returns and his oral evidence point to him consuming cheaper cuts of meat on a regular, almost daily basis pre-service. His own evidence was that cheaper cuts of meat, such as mince, sausages and rissoles, which were a regular part of his pre-service diet, contained more fat than more expensive cuts.
73. Mr Aust’s oral evidence in chief concerning his diet in the shearing industry between 1948 and 1949 was (Transcript 27.10.04, p17):
“The meals were out of this world because if anybody knows the shearing industry, if you haven't got a good cook, you haven't got a good team, and that's the way it was. The meals were over the top, as much as you have a - depending on what the station owner had with their cattle or sheep. If some of the - later on, some of the stations had sheep and a few head of cattle, most of them would have lamb chops and things galore for breakfast, plenty of it, and cereal and so forth, bread if you were close enough to town. Of course, in the shearings they run what they call four sessions. You go from 8 till 10, 10 till 12, 1 till 3, and 3 till 5. We have four runs, they call them. And in between runs there's morning and afternoon tea where the cook was always providing cakes or buns or whatever. Tea time was, again, plenty of meat because that's the cheapest for the owner - for the station owner to provide.”
He further explained his diet during this period under cross-examination (Transcript 27.10.04, p32):
“And again in terms of eating at your aunt's, or when you were out shearing, and just; it's nice food and you enjoy it, so you eat plenty of it?‑‑‑Well, I found out throughout my Navy career, we had - if we had good tucker there, we ate plenty of it. And I kept on doing that virtually, you know, it was good tucker so we ‑--
Eat it, yes. Why waste it?‑‑‑And I needed the food because I was a growing man. Working hard, I would say.”
That evidence must be considered in relation to Mr Aust’s earlier oral evidence that he developed the pattern of eating as much as he could whenever he could in the Depression as a child. However, if as counsel for Mr Aust submitted, he became habituated to eating as much “good” food as possible when it was there in the Navy, Mr Aust’s own account suggests that such “good” food was food that was fresh, not tinned, and was in many ways similar to the food he had become accustomed to eating pre-service and which he enjoyed eating after service when living at his aunt’s boarding house and in the shearing industry, with the exception that then there was more meat. Mr Aust’s evidence was that such “good” food was not often available in the Navy, especially at sea or when he was stationed in England.
74. Mr Aust’s oral evidence in chief concerning his diet after purchasing a bakehouse in 1949 was (Transcript 27.10.04, p18-19):
“I had quite a big business, and it meant very long hours because I'm afraid when you're the pitch and toss if somebody doesn't show up you're it. And I'd finish up working 24, 36 hours. I've seen that many a time. And the trouble was there, I had to eat on the run. Whatever was around, I ate it, and consequently my weight went up to at one stage to 17 stone, and my wife said to me, "If you ever get to 18 stone I'm out", she said. I never got to 18 stone.”
That evidence is consistent with Mr Aust’s evidence that he developed a pattern of eating in his pre-service years to eat as much as you can when you can. It is also consistent with Mr Aust’s evidence that he ate food that others prepared before, during and after service. The whole of the material does not point to Mr Aust seeking out particular foods containing animal fat after the period of his operational service, not is there material pointing to Mr Aust’s post service diet and his consumption of animal fat therein being related to the circumstances of the service he rendered. Mr Aust’s oral evidence was that he was, at one stage, the largest pie-maker in Canberra and that he and his work mate would drink up to six bottles of full cream milk on a daily basis. The whole of the material points to Mr Aust developing a liking for such foods prior to the period of his operational service.
75. There is no material pointing to Mr Aust’s claim that he became addicted to fat or psychologically habituated to a fatty diet during the period of his operation service. I note Professor Mattick’s comments at page seven of his report (Exhibit R7):
“I note that there is a statement that Mr Aust purportedly made that he continued with a fatty diet after the war until the present and that “it may be a habit or a psychological compulsion” and that it continued until the current time. This statement appears to be untrue. Based on what Mr Aust told me he has no preference or habit or compulsion to consume fat. He commented that he would prefer not to have fat on food or meat and would cut it off rather than eat it. If he had a craving for fat he would pursue this and eat preferentially. He had no craving and did not care if he did not eat fat. He also cut down his fat intake in response to doctor’s instructions.”
76. Dr J. Kennardy examined this issue of fat preference and reported (T5 folio 36):
“At a psychophysiological level fat preferences and consumption are effected by pre-ingestive sensory processes and post-ingestive processes. It is the dynamic balance between these two processes that determine actual consumption. Whilst it is possible to change this balance, it is probably fairly resistant to change, requiring significantly greater sensory valance at the pre-ingestive level, and/or a long term exposure to a new diet (eg high fat).”
77. The whole of the material does not point to any such change in sensory variance at the pre-ingestive level or a long term exposure to a new high fat diet on service in Mr Aust’s case. Ms Richards suggested that foods in Mr Aust’s service diet lacked texture and aesthetic quality. Her extrapolation of Mr Aust’s pre-service consumption of animal fat (108.5 grams per day) and the average adult male consumption of animal fat in the 1936-1938 national household dietary survey (126.0 grams per day) point to a decrease in Mr Aust’s consumption of animal fat on service on the basis of Dr English’s estimation of his animal fat intake on service (104.2 grams per day), which was not seriously challenged.
does the whole of the material point to the hypothesis posited by mr aust?
78. Considering the whole of the material, it can be seen that the hypothesis contended for by Mr Aust is not pointed to by the material before me. Simply and essentially, the whole of the material before me does not point to an increase in Mr Aust’s daily animal fat intake on service. Nor does the material point to the increase in Mr Aust’s animal fat intake post-service or his continued consumption of a high fat diet from 1949 to 1979 being related to his operational service. It follows that Mr Aust’s claim must fail.
79. However, even if I am wrong in concluding that the whole of the material does not raise the hypothesis of connection posited by Mr Aust, pursuant to the first step in Deledio (supra), I am satisfied that the material does not raise a hypothesis that is consistent with the terms of the SoP Number 84 of 1999 as amended by SoP Number 69 of 2002 concerning Malignant Neoplasm of the Prostate that is in force, pursuant to the second and third steps in the Deledio (supra) process. The factor that Mr Aust contended to be applicable in his case, factor 5(c), provides:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate … with the circumstances of the person’s relevant service are:
…
(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;”
80. For Mr Aust to succeed it would be necessary, in consideration of all of the material before me, for there to be material pointing to an increase of 40 percent in the level of his animal fat consumption, in excess of 70 grams per day for at least 20 years prior to September 1998 (the clinical onset of the disease), being attributable to the circumstances of his operational service. However, all the material, including Mr Aust’s oral evidence, does not point to there being an increase of 40 percent in his consumption of animal fat on service. Nor does it point to any subsequent increase in that order, in 1949 for example, being attributable to the circumstances of his service. Nor does it point to Mr Aust’s consumption of a diet that was high in animal fat in the post-service period, especially in the period from 1949 to 1979, being attributable to or in any way related to the circumstances of his operational service.
81. It is true that Dr English’s original estimate of Mr Aust’s animal fat intake pre-service (68.4 grams per day) and her estimate of his animal fat consumption on service (104.2 grams per day) appear to point to an increase of at least 40 percent. However, Dr English gave oral evidence that her estimate of Mr Aust’s animal fat consumption prior to enlisting was invalid on the basis of Mr Aust’s oral evidence before this Tribunal. Neither Dr English’s estimate nor Mr Aust’s original estimate (38 grams per day) of his pre-service consumption of animal fat are pointed to by the whole of the material. Nor are those estimates able to be validated on any reasonable basis, as the material before me and the oral evidence of Dr English and Ms Richards confirms. Considering all of the material it cannot be said that the material points to a hypothesis that is consistent with the relevant factor in the applicable SoP. Proof of facts is not in issue at this stage. I am reasonably satisfied that the material does not raise a reasonable hypothesis for the purposes of s.120(3) and 120A(3) of the Act.
82. For completeness, however, if it was found that a reasonable hypothesis was raised on the material, being a subset of the whole of the material before me, whereby certain material would necessarily have to be ignored in a manner that is not consistent with the established authorities, I would be compelled to conclude that essential elements of Mr Aust’s claim were disproved beyond reasonable doubt. That is, I am satisfied that the estimates of Mr Aust’s pre-service level of animal fat intake in the amounts of 38 grams per day (T4, folio 18) and 68.4 grams per day (Exhibit R4) are disproved beyond reasonable doubt. Furthermore, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the level of Mr Aust’s animal fat consumption increased by 40 percent on service nor that the increase in the level of his animal fat consumption after service and his continued consumption of a high animal fat diet thereafter were attributable to the circumstances of his service. It follows that Mr Aust’s claim would fail at the final stage of the Deledio (supra) process on the evidence before me.
conclusion
83. I am reasonably satisfied that the whole of the material does not raise a reasonable hypothesis connecting Mr Aust’s disease with the circumstances of his operational service. It follows that I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Aust’s disease is war caused pursuant to s.120(1) and s.9 of the Act. I so find.
84. It also follows that Mr Aust’s claim for Disability Pension in relation to malignant neoplasm of the prostate is not made out. That disease is not a war-caused disease pursuant to s.9 of the Act and the decision under review is affirmed.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 27 - 29 October 2004
Date of Decision 10 November 2004
Counsel for the Applicant Mr C. Colbourne
Counsel for the Respondent Ms J. Macdonnell
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