Barnes and Repatriation Commission
[2001] AATA 753
•31 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 753
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/897
VETERANS' APPEALS DIVISION )
Re Dulcie May Barnes
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member
Date31 August 2001
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administration Appeals Tribunal Act 1975 and in substitution therefor the Tribunal decides that Mrs Barnes is qualified to receive a War Widow's Pension from and including 30 May 1995.
…………………………
Ms S M BullockPresiding Member
CATCHWORDS
VETERANS' AFFAIRS – War Widow's Pension – Operational Service – Malignant Neoplasm of the Prostate – Statement of Principles – Animal Fat Consumption during and after Service.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 8, 9, 11, 13, 14, 31, 119, 120, 120A
Statement of Principles, Instrument Number 95 of 1995
Statement of Principles, Instrument Number 191 at 1996
Statement of Principles, Instrument Number 84 of 1999
AUTHORITIES
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Keenan and Repatriation Commission [2000] AATA 707
Re Towle and Repatriation Commission [2000] AATA 706
Re Ryan and Repatriation Commission [2000] AATA 849
Re Reading and Repatriation Commission [2000] AATA 841
Arnott v Repatriation Commission (2001) 106 FCR 83
Williams v Repatriation Commission [2001] FCA 601
Gorton and Repatriation Commission [2000] FCA 286
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Cook v Repatriation Commission (2000) 106 FCR 448
Thompson v Repatriation Commission (2000) 59 ALD 441
Re Collingwood and Repatriation Commission [2000] AATA 710
Re Olsen and Repatriation Commission (2000) 62 ALD 208
Re Brown and Repatriation Commission [2000] AATA 1118
Re Zoarder and Secretary Department of Social Security (1998) 26 AAR 342
Re Paint v Repatriation Commission [2000] AATA 709
Re Grace and Repatriation Commission [2000] AATA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Fitzsimmons and Repatriation Commission [2001] AATA 477
Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Ms S M Bullock, Senior Member
Dr J D Campbell, Member
31 August 2001
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Dulcie Barnes of a decision made by the Repatriation Commission ("the Commission") on 12 August 1995 (T2) which decided that the death of Mr Cyril Barnes was not related to service. The Commission's decision was affirmed by the Veterans' Review Board ("the Board") on 27 April 1998 (T18).
A hearing was held before the Tribunal in Sydney on 1 March 2001 and resumed on 12 June 2001. Mrs Barnes was represented by Ms J Buchanan of the Veterans' Advocacy Service of the Legal Aid Commission of New South Wales, and the Respondent, the Commission, was represented by Mr S Modder, Departmental Advocate. Mrs Barnes provided oral evidence at the hearing as did Dr D Volker, Nutritionist and Lipid Biochemist, by conference telephone. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T20) and the following exhibits:
Exhibit Number Description Date
T1-T20 Section 37 Statement and Documents Various
A1 Report of Dr D Volker, Nutritionist and Lipid Biochemist, Undated received by the Tribunal on 1 June 2001
A2 Report of Dr D Volker, Nutritionist and Lipid Biochemist 6 June 2001
R1 Report of Associate Professor R Mattick, Clinical Psychologist 3 January 2001
R2 Report of Mr W Friderich, Consultant Dietitian 22 January 2001
R3 Report of Dr R English AO, Nutrition Consultant August 1998
R4 Report of Dr J Kenardy, Director of Clinical Psychology Programmes and Senior Lecturer Department of Psychology, University of Queensland March 1998
R5 Supplementary Report by Mr W Friderich, Consultant Dietitian 7 June 2001
ISSUES
The issues in this matter are:
(a) Whether or not the Applicant's husband's death was war-caused; and if so
(b) Is the Applicant qualified to receive a War Widow's pension.
SERVICE HISTORYMr Barnes served in the Australian Army from 2 January 1942 to 3 June 1946. This service is eligible war service as defined in the Act. As Mr Barnes served in New Guinea during World War II, the whole of his service is operational service.
LEGISLATION
A determination in this matter requires consideration of the Veterans' Entitlement Act 1986 (Cth) ("the Act").
Section 8 of the Act deals with war-caused death.
As relevant, section 9 deals with war-caused injuries and diseases and provides:
"War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;……"
Section 11 of the Act deals with "Dependants".
Section 13 of the Act deals with "Eligibility for pension" and as relevant states:
"Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran has become incapacitated from a war-caused injury or a war caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran…"
Section 14 of the Act deals with claims for pension.
Section 31 of the Act deals with review by the Commission.
Section 119 of the Act reflects that decision-makers are not bound by the technicalities and that decision-making under the Act is of an administrative nature rather than judicial and also allows decision makers to take into account matters such as the effects of the passage of time and the absence or deficiency in records.
The standard of proof for operational service is contained within section 120 of the Act which as relevant states:
"120 Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence- caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section of 120A.
…"
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of a hypothesis must be assessed by reference to a Statement of Principles.
BACKGROUND
The following information is provided by way of background and the information contained within is not in dispute.
Mr and Mrs Barnes married on 10 April 1946 (T6).
Mr Barnes was diagnosed with carcinoma of the prostate in October 1993.
On 29 May 1995, Mr Barnes died in Calvary Hospital, Kogarah. The cause of death recorded on the Death Certificate was: "Metastatic carcinoma of prostate 24 months" (T5).
On 7 August 1995, Mrs Barnes lodged a claim for a Widow's Pension (T4). She indicated there were a number of war-related factors contributing to her husband's death, namely:
Diet – Mr Barnes had a long exposure to tinned foods having served in New Guinea for two years. The food had a high fat content, contained preservatives and the tin container itself were all possible sources of "carcinogenic agencies"
Malaria and Dysentery – Mr Barnes suffered "innumerable" attacks of malaria and dysentery during and after his service. The malaria attacks after the war sent Mr Barnes into a delirious state.
Smoking and Alcohol – Mr Barnes had a heavy alcohol and nicotine consumption which developed during the war and continued throughout most of his life.
On 12 August 1995, the Commission decided that Mr Barnes' death was not war-caused. The Commission noted the cause of death was malignant neoplasm of the prostate. Applying the Statement of Principles, Instrument Number 95 of 1995 concerning Malignant Neoplasm of the Prostate, the Commission determined that Mr Barnes' circumstances did not satisfy any of the factors (T2).
On 15 September 1995, Mrs Barnes lodged an application for review to the Board (T10).
On 27 April 1998, the Board affirmed the Commission's decision applying the Statement of Principles, Instrument Number 95 of 1995 as amended by Instrument Number 191 of 1996 concerning Malignant Neoplasm of the Prostate. The Board concluded that there was no medical or expert evidence provided that pointed to the hypothesis advanced that Mr Barnes' continued high consumption of animal fats in his diet post service was causally connected to his service (T18).
On 13 July 1998, Mrs Barnes lodged an application for review to the Tribunal (T1) stating the Board's decision was wrong in law and in fact.
EVIDENCE OF MRS DULCIE MAY BARNES.
Mrs Barnes told the Tribunal that she first met her husband in about 1944. She did not know him when he was away in the Army. At that time, he was approximately 23 or 24 years old. Mrs Barnes stated that Mr Barnes grew up in the country in a village called "Old Mill', near Tingha. When Mrs Barnes met Mr Barnes he was very "trim", being very interested in weight lighting.
As Mrs Barnes recalled her husband's description of his childhood, he was raised in a "Salvation Army environment," by which Mrs Barnes meant that neither his parents drank nor smoked and many of his aunts and uncles were "Salvation Army" people. The family was conservative, Mrs Barnes explained.
During his childhood, Mr Barnes ate rabbits which he had caught and a great deal of fruit because there were many fruit trees around the home. Mr Barnes never specifically spoke to Mrs Barnes about the meals he had growing up, but Mrs Barnes knew her husband's mother and considered her a good cook who would have prepared "good wholesome meals". Mrs Barnes noted that her mother-in-law would have been able to make a meal out of very little. Mrs Barnes noted her own childhood and believed her husband would have had the same country upbringing with very little meat in the diet, but meals of mainly chicken and rabbit. Mrs Barnes believed Mr Barnes' family had chickens at home. The family mainly used powdered milk and there was a period when the family temporarily looked after a cow for a neighbour, providing the family with fresh milk for a short period.
In a statement prepared by Mrs Barnes for the Board's hearing, she noted from information supplied to her by her husband's brothers, Mr G C Barnes and Mr K E Barnes, that the family had no electricity or refrigeration. The family diet was heavily biased towards vegetarian rather than a protein diet. The family had infrequent access to shops and "fast foods, confectionary, ice-cream, nuts and cakes were non-existent, except at Christmas" (T13, p73). Life was very hard and the family was poor and largely self-sufficient. A horse drawn butcher's cart came once per week and the family's transport was by horse or bicycle.
Before the war, Mr Barnes worked in the country as a station hand and when he came to the city, he worked in a tannery. In about 1948/1949, he commenced work as a painter and docker on the wharves for approximately ten years. Mr Barnes then worked from about 1958 at "Containers" at Hurstville as a forklift driver, until he retired at age 65 years in 1986.
Mrs Barnes stated that her husband worked hard and did a lot of exercise. He did a great deal of weight-lifting averaging four times per week for approximately one hour. This occurred after work and on occasion when Mr Barnes was not working overtime. Mr Barnes gave weight-lifting away in about 1960 when he commenced working many hours of overtime, often three or four nights per week.
For his lunch at work, Mrs Barnes stated that her husband always purchased hot food from a local shop. Mr Barnes told his wife that salad or a sandwich "did not stick to him long enough", because he did not arrive home from work until 8:30 or 9:00 p.m. Mr Barnes particularly liked meat pies.
In terms of meals at home, Mrs Barnes explained that it was largely up to her to determine what the family ate with Mr Barnes expressing certain preferences from time to time. She was caring for her husband and two growing boys and she tried to cook healthy food. There was better food available after the war and as both Mr and Mrs Barnes worked, they had a higher income than before the war. Mrs Barnes did not consider that her husband had a "craving" for fatty food, but he did like bacon, pork and crackling. When he ate steak or chops Mr Barnes would eat all the meat and any attached fat. "It's as though he enjoyed eating it" Mrs Barnes stated.
For breakfast every day but Saturday, Mr Barnes would have bacon and eggs, sausages or left overs from the night before on toast. For dinner he would routinely eat meat and three vegetables. He would have dessert occasionally, though Mrs Barnes acknowledged that he would have ice-cream nearly every night. Mrs Barnes had not considered ice-cream a dessert or sweets, as it was not home-made. Mr Barnes did not eat many lollies or cakes but had sugar in his tea.
Mrs Barnes provided sample daily menus over a typical week (T15, pp79-82) which in part included:
DAY BREAKFAST LUNCH DINNER
Monday 2 Boiled eggs 2 Slices bread 2 Tspns butter 1 Meat pie Chips (150g) 2 Rissoles Boiled potato, pumpkin, beans 1 Slice bread, Tspn butter 2 scoops ice-cream
Tuesday Lambs fry 2 Slices bacon 2 Tspn butter 2 Slices bread 2 Sausage rolls Chips (150g) 2 lamb chops Boiled potato, pumpkin Peas 1 Slice bread 1 Tspn butter 2 Scoops ice- cream
Wednesday Scrambled eggs 2 Slices bread 2 Tspn butter 1 piece battered fish 1 chips (150g) Corned beef Boiled potato, pumpkin, Cabbage 1 Slice bread 1 Tspn butter 2 Scoops ice- cream
Mrs Barnes stated that Mr Barnes liked steak, a baked leg of lamb or chicken. When first married, Mrs Barnes used to cook in fat for about twenty years, but later, she used margarine.
Mrs Barnes stated that Mr Barnes would always consume "a couple of beers" before a meal, but he was not a regular drinker in terms of going to pubs and clubs.
In relation to Mr Barnes weight after the war, Mrs Barnes thought her husband weighed approximately 11 stone and his weight remained roughly the same until the early 1990s. In 1941, Mr Barnes' weight was recorded as 154 pounds (T3, p11) and on 12 September 1942, Mr Barnes weighed 149 lbs. Mrs Barnes estimated that in the 1990s, Mr Barnes weight was 12 stone (T3, p13).
Mrs Barnes believes her husband's malignant neoplasm of the prostate stems from his service in New Guinea. She considers that Mr Barnes' diet in the Army of bully beef and dry biscuits was high in fat and grease and this contributed to his cancer. After the Army, the food Mr Barnes liked was high in animal fat content.
OTHER EVIDENCE
Dr D Volker, Nutrionist and Lipid Biochemist.
Dr Volker provided a report received by the Tribunal on 1 June 2001 (Exhibit A1) and with a supplementary report dated 6 June 2001 (Exhibit A2). Dr Volker also provided oral evidence to the Tribunal on 12 June 2001.
Dr Volker had interviewed Mrs Barnes and the late veteran's brother, Mr G Barnes and had considered photographs and analysed meal patterns discussed with the interviewees. Dr Volker noted that both she and Mr Friderich, Consultant Dietician, had used the same computer program to analyse Mr Barnes' fat and energy consumption, but she had used the earlier version as it provided an analysis of fat in the diet, pertinent to the circumstances of Mr and Mrs Barnes' diet.
Dr Volker noted from early photographs that Mr Barnes was a fit, lean man on enlistment. The childhood history she understood was that the family grew vegetables and fruit in their yard. The diet consisted of rolled oats, home-made bread, buttermilk for three months of the year, powdered milk for nine months of the year, fruit and vegetables and small quantities of meat. Mr Barnes grew up in the depression. Mr G Barnes stated that he did not ever recall feeling hungry, despite having had hours of physical work carrying water. Dr Volker noted the difficulty in dietary assessment, depending on recall many years later. The use of other tools including photographs, while not conclusive, added to the overall assessment of a person's dietary intake, Dr Volker opined. From Mr G Barnes' information, discussions with Mrs Barnes and from photographs, Dr Volker estimated that Mr Barnes' energy intake was 7.98 M J per day with 67 grams of total fat and 31 grams of saturated fat (Exhibit A1, p3). Dr Volker told the Tribunal that in terms of the Statement of Principles use of the term "animal fat", this accorded with her discussion of saturated fat. In fact, Dr Volker stated Mr Friderich's statement in terms of trying to differentiate animal fat and saturated fat was mischievous because both she and Mr Friderich had used the same computer program to achieve their analysis.
Daily sources of animal fat pre-service included minimal amounts of fried, stewed or baked meat, dairy products such as buttermilk and powdered full-cream milk. Cream was used for butter production during three months of the year when the family had access to a cow on the Tingha common. Dr Volker wrote and confirmed in oral evidence, that based on the histories provided pre-war, Mr Barnes worked hard to help the family during his school years, weight lifted and later worked in a tannery. Dr Volker opined that Mr Barnes had a high proportion of lean muscle mass (low fat content) which weighs more than in an individual who is unused to physical work. Dr Volker did not agree with the conclusions of Mr W Friderich that she had under-estimated Mr Barnes' total food energy consumed by 50 per cent for his pre-service diet. In this regard, Mr Friderich had estimated that based on Mr Barnes' weight on enlistment, his expected weight would be 58.7 kilograms on the reported diet he consumed. Dr Volker stated that the pre-war diet based on the evidence made her estimates valid. Dr Volker believed Mr Barnes was heavier because of his lean muscle mass. Dr Volker also noted that Mr Barnes had only increased his weight by ten pounds during service because of significant periods of illness, including diarrhoea, malaria and dengue fever.
Dr Volker opined that the poverty experienced by Mr Barnes' family pre-war was not uncommon in rural communities in Australia. The urban pre-war diet may have been richer in fat, but in Mr Barnes' family circumstances, little animal fat was used and what amounts it had, were used to maintain and condition leather saddles and equipment. The type of food pre-war that Mr Barnes consumed would be considered a cancer protective diet, Dr Volker opined, because of its high anti-oxidant content of fruit and vegetables and low animal fat content.
Dr Volker considered the service diet in New Guinea would have been from the typical "Australian Armed Forces Ration B Pack" which was very different from his pre-service diet. This service diet was based on research undertaken by Dr R English. The Army diet had a high animal fat content with low fibre. Food was predominantly tinned or preserved such as bully beef and dry biscuits. During his service, Mr Barnes was extremely ill with dysentery, dengue fever and malaria. Despite his high fat diet, his illness preserved his lean muscle mass and he only increased his weight by ten pounds, Dr Volker concluded. Dr Volker noted that on service, she considered factors relating to Mr Barnes' preference for fat, including his being a country boy, his feelings of fear, being away from home, and experiencing significant illness. Dr Volker told the Tribunal that these psychological and emotional factors should not be underestimated in their influence on dietary intake. It is not fanciful to conclude, Dr Volker stated, that Mr Barnes ate to compensate for stressful events in New Guinea. Mr Barnes started to drink and smoke on service and his service medical records were punctuated by regular admissions to hospital for dysentery, dengue fever and malaria.
The pattern of eating Mr Barnes learned on service was to consume high amounts of animal fat. This eating pattern, developed in New Guinea, followed him for the rest of his life, Dr Volker opined. He had learnt that that food in the Army "made him happy," Dr Volker further opined. He may have had access to tropical fruits in New Guinea, but there is no evidence about this, Dr Volker noted. In New Guinea therefore, Dr Volker concluded that Mr Barnes learnt that a high animal fat diet stuck to him. In Australia, his diet of choice became one high in animal fat and this type of consumption content became a habit he continued for the rest of his life.
After the war, Mr Barnes' food consumption indicated high animal fat choices. In this regard, Mr Barnes ate hot meat pies or sausage rolls at lunchtime. While Mrs Barnes had some difficulty with the recall of the post-war meal pattern, she did the best she could, Dr Volker stated. Mrs Barnes told Dr Volker that Mr Barnes would ask for certain dishes, such as baked lamb or baked vegetables. She chose food based on his preferences and as she stated to the Tribunal, trying to provide the best she could for her family.
Dr Volker noted that photographs from 1946, 1953, 1962 and 1986 indicated that Mr Barnes had gained weight contrary to Mrs Barnes' evidence that his weight did not change that much.
From Dr Volker's attempts to establish post-war meal patterns with Mrs Barnes, Dr Volker estimated that from 1946 to 1962, Mr Barnes' energy intake was 12.5 M J per day with the total fat intake being 157 grams of which the animal fat intake was 72 grams per day. From 1962 until 1986, Mr Barnes' energy intake was 12.3 M J per day with the total fat intake of 149 grams of which 72 grams was animal or saturated fat. The animal fat was consumed from sources such as butter, fried or baked meat, pastries in meat pie, hot chips and ice-cream (Exhibit A2, p2).
Dr Volker concluded that after Mr and Mrs Barnes married, Mr Barnes' meal pattern did not revert to that in existence pre-war. Mrs Barnes did not gain weight on the post-war diet, but Mr Barnes did. Dr Volker opined that post service, Mr Barnes retained the habits formed on service and Mrs Barnes did not change his diet because that was what Mr Barnes liked. Dr Volker did not consider it valid to conclude that Mrs Barnes determined her husband's diet. Dr Volker believed that Mr Barnes asked for the food cooked by Mrs Barnes, noting such requests for roast lamb, and ice-cream. Further, Mr Barnes chose to eat hot food at lunchtime at work which was high in animal fat and liked to have a cooked breakfast before attending work.
Dr Volker discussed issues concerning the taste of fat and that it was not just the sensory feel of fat in the mouth which had some influence on a person's preference for animal fat. Dr Volker stated that a person either fills up on fat or fills up on fibre. Mr Barnes' dietary preference was to fill up on fat.
Dr Volker concluded that the pre-service total fat and animal fat intake of 67 grams and 31 grams respectively per day increased to 122 grams total fat and 101 grams of animal fat per day on service. After service, the estimated total fat intake was 157 grams per day between 1946 and 1962 and from 1962 until 1986 the total fat intake was 149 grams. For both these periods, the total animal or saturated fat intake was 72 grams per day. Dr Volker further concluded that the systemic stress of dysentery, dengue fever and malaria depleted Mr Barnes' immune system and contributed to the early stages of cancer promotion.
From Mr Barnes' records and estimates from photographs, Dr Volker noted Mr Barnes' weight varied as follows:
DATE WEIGHT
13/11/41 154 lbs/ 70.0 kg
12/09/42 149 lbs/ 67.7 kg
03/04/44 155 lbs/ 70.5 kg
20/05/46 164 lbs/ 77.9 kg1962187 lbs/ 85.0 kg
1990 176 lbs/ 88.0 kg (Exhibit A2)
Dr Volker concluded that Mr Barnes increased his animal fat consumption by at least 40 per cent and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
Mr W Friderich, Consultant Dietician
Mr Friderich provided two reports dated 22 January 2001, (Exhibit R2) and 7 June 2001, (Exhibit R5). Mr Friderich noted that on enlistment, Mr Barnes was 5 feet 51/2 inches or 166 cm tall.
Mr Friderich reported that the pre-service energy intake estimated by Dr Volker seemed to underestimate the total energy requirement by 50 per cent. Based on Mr Barnes' age on enlistment, his expected weight would be 58.7 kilograms if the reported pre-service diet had been consumed. Mr Friderich concluded this is approximately 11 kilograms below the measured weight. Assuming the proportions of macronutrients remained the same, Mr Friderich concluded that the estimated animal fat intake to be 102 grams per day.
Considering the post-war period, Mr Friderich reported that Mrs Barnes had told him that the meal preparation was shared. The detailed post-war diet histories provided were based on the last 25 years and not immediately post service. Mrs Barnes told Mr Friderich that she used lard and dripping in the early years of her marriage.
At work, Mr Friderich understood that Mr Barnes purchased meals at work. Mr Friderich opined that the availability of healthier choices would have had a great influence on his selections. However, Mr Friderich could not determine whether lower fat options were available. If lower fat options were not available, then this would have determined his selections and not any perceived preferences. The post-war diet also appeared to underestimate the total energy consumed by 15 per cent, Mr Friderich opined. There was a complete lack of a history of fruit being eaten and also it seems, a number of days when no dessert was consumed. Assuming the proportion of macronutrients was correct, Mr Friderich calculated animal fat in the diet as 100 grams per day. This equates to a decrease of 1 gram per day in animal fat consumption. Mr Friderich noted that the diet histories did not include mid-meal snacks or beverages.
From his reading of the transcript of Mrs Barnes' evidence to the Tribunal, Mr Friderich concluded that until 1960, Mr Barnes was a very fit man who lifted weights as a hobby for at least one hour, three to four times per week. Mr Friderich concluded that Mrs Barnes determined the family's diet after the couple were married and the increased variety and quantity of food significantly altered the family's diet. Mr Friderich opined that Mr Barnes did not request a high fat diet, nor did he crave fats. As Mrs Barnes stated in evidence, he simply liked some fatty foods. Mr Friderich further concluded that Mr Barnes' weight did not increase significantly during his working life, but noted that he purchased a hot lunch at work, including meat pies and sausage rolls. Mr Barnes did eat fruit, but Mrs Barnes had not included this in her statement during her interview with Mr Friderich.
Mr Friderich noted that Dr Volker's analysis correlated closely with the expected energy intakes as calculated in his report of 22 January 2001. The pre-service diet however continued to be significantly lower than the expected energy requirement. Mr Friderich opined that it was unusual to use photographs as a determinant of Mr Barnes' weight. Mrs Barnes had stated that Mr Barnes' weight had remained stable and Mr Friderich concluded that he could not see how photographs could be used to determine a person's weight.
Mr Friderich noted that both Dr Volker and himself had concluded that there was a change of animal fat consumption in Mr Barnes' diet. The level or cause of the change however, could not be determined precisely, due to the inexact nature of dietary recall methodologies and the reliance on third person information. Mr Friderich noted that it was clear that Mr Barnes gained weight during military service and there was no doubt that he was consuming calories in excess of his requirements. Many of the additional calories would have been in the form of fat. His level of physical activity appeared to have also decreased significantly. It is Mr Friderich's opinion that following Army service, Mrs Barnes had the greatest influence on her husband's food intake. From his interview with Mrs Barnes and the evidence she provided to the Tribunal, Mr Friderich concluded that Mr Barnes had little control over the meals serviced in the family home. Socio-economic factors had also improved and increased the availability quantity and variety of foods. Therefore, Mr Friderich concluded that Mr Barnes' Army service did not influence his diet and therefore did not contribute to the development of prostatic cancer.
Associate Professor R Mattick, Clinical Psychologist
Associate Professor Mattick provided a report of 3 January 2001 (Exhibit R1). He had not spoken to Mrs Barnes, but had reviewed the documents. Associate Professor Mattick commented that the issue of whether or not there was an increase in animal fat is a specialist area requiring the comment of a dietician. He opined however, that Mr Barnes' animal fat consumption was not constrained necessarily by preference, but by the availability of red meat and the ability to refrigerate such products. Associate Professor Mattick also noted that Mr Barnes was probably affected by his family's lack of money. Mr Barnes' post service consumption of animal fat does not appear to have been related to service in any reasonable way, Associate Professor Mattick concluded. Associate Professor Mattick noted the impact of post-war affluence and the economic boom on eating patterns. In addition, Associate Professor Mattick noted the 1998 opinions of Dr R English AO and Dr J Kenardy who had concluded that links between service and long periods of food consumption after service could only be described as tenuous and unsupported by a reasonable level of evidence. Dr Kenardy had further noted that there was no evidence that animal fat consumption could be construed as an addictive behaviour and Associate Professor Mattick agreed with this conclusion.
Associate Professor Mattick concluded that whether Mr Barnes increased his animal fat consumption on service may be less relevant than the fact that he did not have access to animal fat prior to service because of economic hardship and geographical isolation. Further, access to animal fat on service would not, in Associate Professor Mattick's view, set up a life long pattern of consumption. Associate Professor Mattick did not consider that animal fat consumption could lead to potential addictive behaviour. Associate Professor Mattick also did not believe a reasonable hypothesis could be formed linking Mr Barnes' service and his consumption of animal fat following service. It was much more likely that Mr Barnes' consumption of animal fat was influenced by his increased affluence and by the availability of a broad range of food stuffs compared to the type of food to which he had access pre-service.
Dr R English, AO Nutrition Consultant
Dr English AO had been commissioned by the Department of Veterans' Affairs to undertake a study, "Animal Fat Diet including the Armed Services' Rations in World War 2". The Study was reported in August 1998 (Exhibit R3). Dr English concluded:
"On the basis of the above review and the universal agreement in the literature that many complex factors affect an individual's food patterns, it is considered speculative to place much weight on a period of military service as responsible for food consumption patterns maintained for a period of 20 years, especially during a period when medical / health advice, changing food patterns in the community, and food availability in the market-place are contrary to those food consumption patterns. It is proposed that such a link can only be described as tenuous, and unsupported by a reasonable level of evidence:"
Dr J Kenardy, Clinical Psychologist
Dr Kenardy was asked by the Department of Veterans' Affairs to provide a report concerning any evidence of a relationship between fat intake and addiction and whether or not fat over-consumption can be construed as an addition. Dr Kenardy's report was completed in March 1998 (Exhibit R4).
Dr Kenardy concluded that the consumption of fat is conceived as pleasurable. However, this fat preference is probably related to a number of factors namely:
1.Tastants embedded in the fat, rather than the fat itself;
2.Subject to individual and group (gender) variation, probably through associative learning;
3.Modifiable by new information; and
4.At a psychophysiological level, fat preferences and consumption are effected by pre-ingestive sensory processes and post-ingestive processes.
Overall, Dr Kenardy concluded that the evidence in favour of an addictive model of fat over-consumption is very limited and this conclusion is further supported by the "lack of fit" of over-consumption of fat in the Substance Dependence criteria defined in DSM - IV.
SUBMISSIONS
Ms Buchanan, for the Applicant, dealt first with the issue of which Statement of Principles is appropriate to Mrs Barnes' application for review. She submitted that the current most beneficial Statement Principles, Instrument Number 84 of 1999 concerning Malignant Neoplasm of the Prostate, should be applied rather than the earlier Statement of Principles Instrument Number 95 of 1995, applicable at the date of the decision of the Repatriation Commission.
Ms Buchanan relied on the majority judgment in Repatriation Commission v Keeley (2000) 98 FCR 108, following on from which were the decision of Re Brown and Repatriation Commission [2000] AATA 1118 and Re Olsen and Repatriation Commission (2000) 62 ALD 208. In Re Brown (supra), the Tribunal relied on the decision in Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342, where at 350, Matthews J noted:
"The 'rights' which s8(c) is designed to preserve are rights, albeit conditional or inchoate ones, which would otherwise be lost upon the repeal of the legislation in question. In other words, the section applies where the change in the law would otherwise deprive a claimant of rights already accrued. It operates to prevent a claimant being unfairly disadvantaged by changes in the law between the making of a claim and the time of its determination: Re Reilly and Secretary, Department of Social Security (1987) 12 ALD 407 at 414…. Accordingly, it will normally (if not invariably) only apply to preserve rights where the change in the law is disadvantageous to the person asserting the right. It is difficult to conceive of a situation where the law has moved from a restrictive to a less restrictive regime where the applicant could be said to have an accrued right which will require preservation under s8 (c). This is precisely what has happened here. There was in my view no right of the applicants which needed protection under s8(c)".
In the Full Federal Court Keeley v Repatriation Commission (supra), the majority, Lee and Cooper JJ concluded at 123:
"Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: See Esber at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ."
Williams v Repatriation Commission [2001] FCA 601 also provides support for the application of the most beneficial Statement of Principles, Ms Buchanan submitted.
Ms Buchanan contended that in Mrs Barnes' case, in essence she is waiving her accrued right to have the matter determined under the Statement of Principles in existence at the time of the Commission's decision.
Ms Buchanan submitted that the hypothesis raised by Mrs Barnes is that her husband's death from malignant neoplasm of the prostate was caused by an increase in animal fat consumption by at least 40 per cent to at least 70 grams per day for at least 20 years before the clinical onset of the malignant neoplasm of the prostate. In so submitting, Ms Buchanan referred the Tribunal to the construction the Tribunal should follow in the application of sub-section 120(1) of the Act as determined in Repatriation Commission v Deledio (1998) 83 FCR 82. Ms Buchanan further submitted that Mr Barnes' circumstances meet Factor 5 (c) of the Statement of Principles Instrument Number 84 of 99 which states:
"(c) increasing animal fat consumption by at least 40 percent and to at least 70 gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or…
"animal fat" means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;…"
Referring to Mr Friderich's Report, Ms Buchanan noted that he had concluded that Mr Barnes' pre-service animal fat consumption was 51 grams while post-service it was 85 grams. This indicates an increase of 34 grams between pre and post service consumption. To obtain an increase of 40 per cent as required by the Statement of Principles, Mr Barnes would only need an increase of 20.4 grams and he is well in excess of that. An increase in animal fat consumption from pre to post-service is also supported by Dr Volker's evidence and she also concluded that there was a 40 per cent increase in animal fat consumption to at least 70 grams for 20 years prior to the clinical onset of malignant neoplasm of the prostate.
Dr Volker's more comprehensive evidence should be preferred, Ms Buchanan submitted, referring the Tribunal to Dr Volker's reporting an increase from a consumption of 31 grams of animal fat pre-service to a consumption of 101 grams of animal fat during service which then post service became a consumption of 72 grams of animal fat. Mrs Barnes' evidence had not indicated a variation in Mr Barnes' post-war diet history. Ms Buchanan submitted that the Respondent had not raised a contention in regard to not being satisfied about this issue in the dietician's report. Accordingly, the Applicant submits that Mr Barnes increased his consumption of animal fat arising out of service to the degree stipulated in the Statement of Principles due to the repetitious diet of animal fat provided in the Army in New Guinea. There is also the evidence of Mr Barnes' younger and older brothers which expanded on Mrs Barnes' evidence. Mr Barnes' service in New Guinea was for approximately two years. However, in relation to Mr Barnes' post service diet, the Applicant relied for authority on the "Brisbane cases", particularly the leading case of Re Keenan and Repatriation Commission [2000] AATA 707.
Dr Volker concluded that Mr Barnes increased his animal fat consumption by at least 40 percent and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
In ReKeenan and Repatriation Commission (supra) at paragraph 30, the Tribunal noted the opinion of Dr Kenardy who expressed a number of views, including the possibility that a young adult person could develop a generally increased preference and consumption of fat in excess of need, following exposure to elevated fat in the diet where there had been the presence of a previously lower consumption of fat. That Tribunal also noted Dr Kenardy's opinion of there being some evidence that fat might have some qualities of an addictive substance and from the conclusions of Blundell and MacDiarmid's [1997] proposal that exposure to fat generally leads to increased fat consumption. (Blundell, JE and MacDiarmid, JI (1997), "Fat as a risk factor for overconsumption: Satiation, satiety and patterns of eating." Journal of the American Dietary Association, 97, 563-569). The Tribunal in Re Keenan and Repatriation Commission (supra) also noted at paragraph 31 that there are other factors which can contribute to a high dietary intake of animal fat such as: cognitive factors; the preference for fat and hence increased fat intake which should be increased if reinforcement of a positive sensory impact of the fat is greater than the delayed adverse post-ingestive consequences of consuming fat; fat preference is likely to be difficult to reduce but can be modified upward; in order to change fat preferences and consumption, the positive sensory input of the fat would need to be significantly enhanced to counteract the post-ingestive negative feedback.
Referring to the statement by Mr Barnes' brothers, Ms Buchanan submitted that Mr Barnes came from a relatively poor family background, raised during the depression and pre-dominantly ate a vegetarian diet prior to service. Dr Volker had analysed the diet at 51 grams of fat consumption pre-service per day. When Mr Barnes enlisted for service as a young 20 year old adult, he was in the formative years of his life. In New Guinea he was provided with a monotonous diet of bully beef for a period of approximately two years. There was no challenge by either party to the use by Dr Volker of Ration Pack B estimates as discussed by Dr R English, as the typical Army diet during this period. It is clear, Ms Buchanan submitted, that the total fat as well as animal fat consumption increased during and because of service and was continued post service.
The Tribunal was referred to Re Fitzsimmons and Repatriation Commission [2001] AATA 477 in which that Tribunal noted the provisions of sections 31 and 119 of the Act to allow careful consideration of the limited availability of pre-war material relating to diet and the beneficial nature of the legislation.
Ms Buchanan submitted that the Tribunal could not exclude the many factors discussed by the Tribunal in the Brisbane cases as important influences contributing to the continuation of an increased consumption of animal fat post-service. A most relevant case on point, Ms Buchanan submitted is Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
That case requires the contribution of a particular factor or influence to be more than "de minimus". Ms Buchanan noted the Respondent's contention that the reason Mr Barnes continued his post-service increased animal fat consumption was an element of choice. In the Applicant's submission, choice is only one element at play when considering the contributing factors to Mr Barnes' ingestion of animal fat consumption. The role of the Tribunal, Ms Buchanan submitted, is to consider whether the service conditions were more than "de minimus" in influencing his choice post-service. War service is generally considered to be a significant life event and Ms Buchanan submitted that such service would have influenced Mr Barnes' dietary choices post-service.
In reference to Associate Professor Mattick's opinion that it was not possible to construe animal fat consumption as potentially addictive behaviour, Ms Buchanan noted Associate Professor Mattick's qualifications as a clinical psychologist with no background in nutrition, dietetics or food psychology. Further, Associate Professor Mattick had not interviewed Mrs Barnes or any other family member and had not explored the particulars of Mrs Barnes' case. Ms Buchanan submitted in those circumstances that his opinion should carry no weight in the matter.
Ms Buchanan submitted that the Tribunal could not be satisfied beyond reasonable doubt that the material before it did not raise a reasonable hypothesis relating Mr Barnes' death from malignant neoplasm of the prostate to his service. This was particularly in light of the Brisbane cases which had reviewed the expert material. Specifically, Re Towle and Repatriation Commission's [2000] AATA 706 is most pertinent at paragraph 62 which states:
"….Neither the SoP nor the evidence of Dr Kenardy indicate that any quantification of the war-time fat intake or any minimum duration of exposure is necessary before it can be said there is a possible link between service and post-war increased ingestion of fat. The increased food intake and the ingestion of a high fat diet during service continued up until his death {Mr Towle}, as shown by the survey, the evidence of the applicant, and health records."
Ms Buchanan also noted the Tribunal's findings in Re Keenan and Repatriation Commission (supra) in which it was concluded that there are physical, psychological or emotional factors operative in the determination of dietary preference and ingestion which could be considered special to war-service. That Tribunal discussed factors such as separation from normal life for periods of years; periods of fear and panic interspersed with boredom; lack of privacy; basic camping facilities; repetitive, dull basic cooking and abstinence from and longing for favourite foods. That Tribunal also noted that the expert witnesses did not consider these parameters as they might impact on veterans during their post-war lives. Such a narrow focus on the consideration of factors influencing animal fat consumption was considered by that Tribunal as inappropriate.
In conclusion, Ms Buchanan submitted that it was open to the Tribunal to determine that Mr Barnes' death was contributed to by his war-service and that accordingly, a War Widow's pension is payable to Mrs Barnes with effect from and including 13 May 1995.
Mr Modder for the Respondent submitted for the record that on enlistment on 13 November 1941, Mr Barnes' weight was 154 lbs or approximately 11 stone. On 12 September 1942, he weighed 149 lbs or 10 stone 9 lbs. On 3 April 1944 Mr Barnes' weight was 155 lbs and on discharge on 23 May 1946, he weighed 164 lbs.
Mr Modder submitted that the appropriate Statement of Principles is Instrument Number 95 of 1995 which supports the view expressed in Keeley v Repatriation Commission (supra) which is authority for the proposition that the Statement of Principles to be applied is that in existence at the time of the Primary decision.
If the Tribunal did not hold this view and adopted the later more beneficial Statement of Principles, Instrument Number 84 of 1999, Mr Modder proceeded to consider the evidence in light of the requirements of the later Statements of Principles.
In relation to the Applicant's questioning of Associate Professor Mattick's qualifications, Mr Modder noted that his area of expertise is addiction and he had concluded that there is no addictive characteristic to animal fat consumption.
In relation to Mr Barnes' post-war diet and its increase in animal fat consumption, Mr Modder submitted that this can be explained by post-war affluence, the economic boom and the availability of more and better foods. Associate Professor Mattick had concluded this, as had Mrs Barnes, Mr Modder submitted. Mr Modder stated that Mrs Barnes' evidence was frank and concise and she had agreed that there was more money available post-war which allowed for families to eat much better food.
Mr Modder strongly submitted that Mr Barnes' post-war diet was common. It was "more or less organised" by Mrs Barnes. Mr Modder submitted that Mrs Barnes chose what the family ate and the entire family ate much the same food. Mr Modder submitted that Mrs Barnes was also motivated, like many people, by what the children liked. Mr Modder conceded that Mr Barnes made suggestions from time to time that he would like roast lamb or that he had not had a certain type of meal for some time. Mr Modder submitted however, that there was nothing unusual about that. Mr Modder concluded that Mr Barnes' eating habits appeared to be quite conservative and his weight, according to Mrs Barnes' evidence, seemed to have been much the same throughout his life. Mrs Barnes had stated that in the early 1990s she thought her husband's weight was approximately 12 stone and on discharge from the Army, his weight was 11 stone 9 lbs, virtually the same. Mr Modder noted Mr Barnes' physical fitness, weight lifting and Mrs Barnes' frank evidence that her husband cared a lot about his weight and was conscious of it. Accordingly, Mr Modder contended that Mr Barnes' diet post-war was a question of choice. Animal fats are not addictive and even though there may have been an animal fat increase in the post-war diet, this was not causally related to Mr Barnes' service.
Mr Modder stated that Mr Barnes did not meet the 40 per cent increase in animal fat criteria in the Statement of Principles. When Mrs Barnes was asked what did she consider the link between Mr Barnes' war-service and a liking for fat was, she had answered by way of an assumption that Mr Barnes ate fatty types of food in New Guinea and there was then a connection in his animal fat consumption post-war. Mr Modder submitted that this is a mere possibility of a link between animal fat consumption and post-war diet. East v Repatriation Commission (1987) 16 FCR 517 and Repatriation Commission v Bey (1997) 79 FCR 364 are authority for the proposition, amongst other things, that an hypothesis must be pointed to by the facts. Mr Modder submitted that the Statement of Principles is not met because the actual issue of a cause or a link was not met. Mr Modder submitted that there was no unusual craving for meat by Mr Barnes post-service and he ate everything. The diet pattern was governed very much by what Mrs Barnes thought was appropriate, with Mr Barnes making occasional suggestions, but that was as far as it went. In respect of this matter, Mr Modder relied on the conclusions of dietician, Mr Friderich.
Referring to Deledio v Repatriation Commission (supra), Mr Modder agreed that a hypothesis is raised. But if the Tribunal took the view that the later Statement of Principles should be applied, then Mr Modder submitted that Factor 5(c) of that later Statement of Principles requiring a 40 per cent increase in animal fat consumption was not met. While there had been an increase generally in fat consumption, Mr Modder submitted that whether there was an increase in animal fat consumption was uncertain. Thus no reasonable hypothesis was raised. If the Tribunal found that a reasonable hypothesis had been raised, then Mr Modder further submitted that following the fourth step as outlines in Deledio v Repatriation Commission (supra) the facts did not support a reasonable hypothesis. In this regard, Mr Modder noted that Mr Barnes' weight was fairly constant throughout his post-war period. Dr English and Dr Kenardy do not suggest there is a link between animal fat consumption on service and post-service animal fat consumption. Mr Friderich also holds this opinion. There is nothing pointed to in the material, Mr Modder contended, to show a link between Mr Barnes' service and this post-war diet. Further, there was no addictive quality to fat which would indicate a link.
In relation to the Brisbane cases, Mr Modder submitted that each case turned on its own facts, though he noted that in Re Collingwood and Repatriation Commission [2000] AATA 710 and Re Grace and Repatriation Commission [2000] AATA 711, both those cases were not successful for the Applicant.
In all the circumstances Mr Modder submitted that the Tribunal should affirm the decision under review.
FINDINGSThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal found Mrs Barnes to be a credible witness. She provided evidence to the best of her ability taking into account the difficulties of memory and the passage of time.
The first issue the Tribunal must determine is which Statement of Principles should be applied. The Respondent, relying on Repatriation Commission v Keeley (supra) has argued that the Statement of Principles in existence at the time of the Commission's decision is the appropriate Statement of Principles namely Instrument Number 95 of 1995 concerning Malignant Neoplasm of the Prostate. The Applicant, on the other hand, urges the Tribunal to apply the Statement of Principles Instrument Number 84 of 1999, the most recent Statement of Principles which is also most beneficial to Mrs Barnes' case. The Tribunal notes that Instrument Number 95 of 1995 has two factors, one of which refers to exposure to herbicides in Vietnam and is obviously not relevant to Mr Barnes' World War II service and a second factor, dealing with the inability to obtain appropriate clinical management of the condition of malignant neoplasm of the prostate. Ms Buchanan cites Gorton v Repatriation Commission (supra), and Williams v Repatriation Commission (supra) as support for applying the later, more beneficial Statement of Principles. Further support is found for Ms Buchanan's proposition in the Tribunal decisions of Re Brown and Repatriation Commission (supra) and Re Olsen and Repatriation Commission (supra). In Repatriation Commission v Keeley (supra), the Full Federal Court determined that the Statement of Principles to be applied was that which was in force at the time of the primary decision, subject to a contrary intention. This seems to have been supported in Cook v Repatriation Commission (2000) 106 FCR 448 and Thompson v Repatriation Commission (2000) 59 ALD 208 per Drummond and Emmett JJ. The majority in Thompson v Repatriation Commission (supra), addressed section 31 of the Act and concluded it could be invoked if an amending Statement of Principles was more beneficial.
However, in Gorton v Repatriation Commission (supra), which dealt with the situation where the Statement of Principles in force at the time of the Tribunal's decision was more favourable to the Applicant than that in force at the time of the Commission's determination, Stone J noted that in Repatriation Commission v Keeley (supra), its conclusions in part are based on the view that with beneficial legislation such as the Act, a construction of the substantive provisions least likely to cause unfairness is to be preferred. Her Honour held that the Tribunal is obliged to apply the later Statement of Principles unless the earlier Statement is more favourable. Stone J also reasoned that the Act provided for the continual updating of medical and scientific knowledge and found those were sound reasons for applying the most recent beneficial Statement of Principles.
In Williams v Repatriation Commission (supra), Wilcox J discussed the conflicting views in Thompson v Repatriation Commission (supra) and Gorton v Repatriation Commission (supra). The Court concluded that despite statements by the majority in Thompson v Repatriation Commission (supra) supporting a contrary view, the decision in Gorton v Repatriation Commission (supra) should be followed. Wilcox J held that an Applicant has the right to rely on either a right accrued at the time of the Commission's decision, or upon a later, more beneficial Statement of Principles. The Court held that this conclusion was consistent with the Full Federal Court's decision in Keeley that an Applicant has a vested right to rely on the Statement of Principles in force at the time of the Tribunal's determination if he or she wished. His Honour stated at 71:
"I agree that, to use the vernacular, this means the applicant "has it both ways". But there is nothing unusual about that. This is the position in any case where a person acquires a vested right prior to the commencement of amending legislation; the person can rely on the vested right or, in common with everyone else, elect to rely on the new legislation."
The Tribunal notes that in the Full Federal Court decision Arnott v Repatriation Commission (2001) 106 FCR 83, Merkel J concluded, as supported by Spender and Marshall JJ that:
"It seems to be implicit, if not explicit, in the approach in the Full Court in Keeley that a contrary intention might be found if the terms of a later SoP are more beneficial to a claimant than the terms of the SoP which it replaced. Of course, the contrary intention must be discerned from all of the terms of the later SoP and not just particular aspects of it".
In the Tribunal's assessment of the circumstances of a Statement of Principles being replaced after the Commission's decision by a more favourable Statement of Principles before review by the Tribunal, these circumstances are dealt with directly in Gorton v Repatriation Commission (supra) and Williams v Repatriation Commission (supra). The Court in Williams agreed with Stone J's decision in Gorton that the Tribunal is obliged to apply the later Statement of Principles unless the earlier Statement of Principles is more favourable. This is not to say that Keeley v Repatriation Commission (supra) does not apply. Rather, it means that an Applicant accrues a right to have the earlier Statement of Principles applied if they wish; alternatively, the Applicant may elect to rely on a later Statement of Principles.
In Mrs Barnes' application for review, the Statement of Principles in existence at the time of the Commission's decision is less favourable and specifically does not allow for consideration of Mr Barnes' World War II service except where it might involve his condition of malignant neoplasm of the prostate not being appropriately clinically managed. The later amending Statement of Principles Instrument Numbers 191 of 96 and 84 of 999 have factors concerning animal fat consumption which can take into account, in Mr Barnes' case, his World War II service. It is clear to the Tribunal that the 1996 amendment as confirmed in the 1999 Statement of Principles allow for the update and recognition of developments in medical and scientific knowledge in regard to the link between animal fat consumption and malignant neoplasm of the prostate. The Tribunal considers that the later Statement of Principles indicates a specific intention to bring within the decision-maker's domain an ability to consider animal fat consumption. There is thus, in the Tribunal's analysis of the various authorities, a contrary intention expressed to the earlier Statement of Principles applying. Mr Barnes' service could not have satisfied the narrow factors in the earlier Statement of Principles and not to allow him the benefit of consideration under the later more beneficial Statement of Principles would produce an unfair result. Therefore, the Tribunal considers that the Statement of Principles appropriate to Mrs Barnes' application for review is Instrument Number 84 of 1999 and specifically Factor 5 (c) which is identical to Factor 5 (b) of Instrument Number 191 of 1996. The definitional requirements for animal consumption are essentially the same in both the later Statements of Principles.
In determining whether or not a reasonable hypothesis is raised, the Tribunal applies the steps outlined in the Full Court in Deledio v Repatriation Commission (supra).
There is a general hypothesis that Mr Barnes had an increase in his animal fat consumption during his service in New Guinea and this then led to an increase in animal fat consumption post service leading to malignant neoplasm of the prostate, the cause of Mr Barnes' death. The Tribunal considers that on all the material available, a general hypothesis is pointed to. The Tribunal next considers whether there is a relevant Statement of Principles in force. It has been determined that the relevant Statement of Principles is Instrument Number 84 of the 1999 and the specific factor is 5 (c) which requires that Mr Barnes had an increase in animal fat consumption by at least 40 per cent to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm cancer, which in this case was in October 1993. At this stage of the Tribunal's determination, and as noted in Dixon v Repatriation Commission (1999) 29 AAR 235, the Tribunal should resolve step 3 of the Deledio process:
"…determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles….; that is, still considering them as claims and without making judgment about their truth…"
If the Tribunal finds this step satisfied, a reasonable hypothesis is raised and the final step is to consider the truth of the claims as imposed by subsection 120(1) of the Act.
The Tribunal finds that there is material available supporting Mr Barnes having a pre-war animal fat consumption of 31 grams per day. Based on the parties' accepted service diet as detailed by Dr English, the animal fat consumption during the war was approximately 101 grams per day. Post-war, the animal fat consumption has been estimated by Dr Volker between 1946 and 1962 and between 1962 and 1986 as 72 grams per day. After service, Mr Barnes' animal fat consumption was therefore estimated to be in excess of 70 grams from 1946 for 47 years until the clinical onset of malignant neoplasm of the prostate in October 1993. There is material supporting a 40 per cent increase in animal fat consumption in Dr Volker's reports (Exhibts A1 and A2).
The Tribunal finds that the material before it points to more than a mere possibility of an increase of animal fat consumption in the terms of factor 5 (c) of Instrument No. 84 of 1999. The notion is not fanciful or mere supposition and in such circumstances, the Tribunal finds that a reasonable hypothesis is raised within the terms of subsection 120(3) of the Act.
The Tribunal turns to consider whether or not under the provisions of subsection 120(1) of the Act, it can accept sufficient of the facts as are necessary to support the raised reasonable hypothesis. In doing so, the Tribunal is mindful of sections 31 and 119 of the Act, noting the difficulty in the availability of pre-war dietary material as well as Mrs Barnes' recall post-war, concerning her husband's dietary habits.
Mr Friderich has concluded that Dr Volker underestimated Mr Barnes' pre-war energy intake by 50 per cent. The Tribunal is of the view that this is not valid when consideration is given to all the evidence about Mr Barnes' pre-service circumstances, including evidence provided by his brothers who grew up with him. Mr Barnes' family is found by the Tribunal to have been financially very poor. Mr Barnes was involved in physical work around the house and enjoyed the sport of weight-lifting. The Tribunal agrees with Dr Volker that he would have had a high proportion of lean muscle mass. The Tribunal further accepts that Mr Barnes would have weighed more because of his muscle development. Mr Barnes' pre-war diet, it is found by the Tribunal, was not rich in animal fat and there is nothing to disprove this evidence beyond reasonable doubt.
Both Dr Volker and Mr Friderich are in agreement that there was an increase in animal fat consumption on service and post service. The difference lies however, in the opinions as to the cause or contribution to this increase in animal fat consumption post-service. Mr Friderich's view is that Mrs Barnes largely determined the family's dietary intake and that it was more her choice of meals which influenced animal fat consumption. The Respondent further submits that although Mr Barnes may have indicated his preference for certain types of food from time to time, Mrs Barnes was the determinative factor in the family's eating habits. While noting Mr Friderich's opinion, the Tribunal's view, based on Mrs Barnes' evidence and that of Dr Volker, is that Mr Barnes developed a preference for animal fat consumption during service and that this was continued post-service. He was not merely a passive recipient of Mrs Barnes' cooking, but rather, on the Tribunal's understanding of the evidence, he expressed his view and choice by requesting certain meals, by eating food high in animal fat during his lunchtime at work and by having cooked breakfasts during the week high in animal fat. Further, the evidence was that Mr Barnes ate all of the fat on his meat and preferred meat fried or roasted. The Tribunal finds therefore, that on facts of this matter, Mr Barnes did exercise some considerable choice in the food he ate.
It is the Tribunal's view that factors which must be taken into account and as asserted by experts in the field of dietetics, include a person's emotional, psychological and perhaps physiological reaction to food. Dr Volker indeed did this when she noted the stress Mr Barnes would have experienced during war, the deprivation and the fear he would have experienced in New Guinea and the fact that the animal fat diet "stuck to him" and provided some comfort which then changed his eating habits from that time onwards.
There is nothing in the material to disprove beyond reasonable doubt or cause the Tribunal not to take such matters into account. Certainly in the Brisbane cases, this was clearly the message emanating from the Tribunal's decisions in those matters. While there is no conclusive evidence in relation to taste factors or indeed the addictive properties of fat, this does not cause the Tribunal to disregard these matters as being disproved beyond reasonable doubt. Further, the Respondent's issue with the possibility of Mr Barnes only having a modest weight gain is difficult to support when taking into account all the evidence, including photographs which are another tool and including oral evidence, which may support or disprove a particular proposition. In any event, whether or not Mr Barnes gained weight is not determinative of an increase in animal fat as there may well be other factors, which could have mitigated against a weight gain or allowed for a small weight gain, such as illness, metabolism, exercise and the like.
The Tribunal on all of the facts, including Mrs Barnes' evidence does not accept that it was entirely up to Mrs Barnes to determine the family's eating patterns. The Tribunal should not adopt a narrow focus in its analysis of the facts provided to it. Mr Friderich did not consider factors such as the impact of Mr Barnes' service on a young adult brought up in the country on a reduced animal fat diet. As was noted ReKeenan and Repatriation Commission (supra), the Act is beneficial legislation which requires reasonable certainty that a link does not exist before a claim can be rejected.
Accordingly, pursuant to subsection 120(1) of the Act, having reviewed the whole of the material before it and for the reasons expressed above, we are not satisfied beyond reasonable doubt that there is no sufficient reason for determining that Mr Barnes' death was war-caused.
In such circumstances, the Tribunal decides pursuant to section 43 of the Administrative Appeals Act 1975, that the decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Barnes' death was war-caused and accordingly, Mrs Barnes is qualified to receive a War-Widow's pension with effect from and including 30 May 1995.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock,
Senior Member and Dr J D Campbell, MemberSigned: .....................................................................................
Stella Vaughan, AssociateDates of Hearing 1 March 2001
12 June 12001
Date of Decision 31 August 2001Advocate for the Applicant Ms J Buchanan, Veterans' Advocacy Service Legal Aid Commission of NSW
Advocate for the Respondent Mr S Modder, Departmental Advocate
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