BAWDEN and REPATRIATION COMMISSION

[2010] AATA 774

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 774

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5535

VETERANS' APPEALS  DIVISION		)
Re		CORAL BAWDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Date11 October 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – operational service with Australian Army - Death from metastatic carcinoma prostate – Application of Statements of Principles - Increasing animal fat consumption - Reasonable hypothesis of relevant relationship to eligible war service not raised – Death not war-caused – Decision under review affirmed

Veterans’ Entitlement Act 1986 ss 5E, 6A, 7, 8, 11, 14, 119, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Re Gill v Repatriation Commission [2005] AATA 1276707 
Repatriation Commission v Bey (1997) 149 ALR 721
Jakab v Repatriation Commission [2007] FCA 898

REASONS FOR DECISION

11 October 2010 Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member    

BACKGROUND

1.      Alexander Bawden (“the veteran”) served in the Australian Army in World War II.  He died on 24 December 2006 at the age of 82 years.  On 29 March 2007, his widow and dependant, as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that the veteran’s death was war‑caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (“the respondent”) on 14 August 2007 and then by the Veterans’ Review Board on 24 April 2009.

SERVICE 

2.      The veteran’s army service was from 8 March 1943 until 20 November 1946 during which he was based for periods in New Guinea.  It is common ground that all of his service constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A, respectively, of the Act.

ISSUES AND LEGISLATION 

3. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:

(1)Subject to this section … for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)       …

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …

4. Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:

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 of 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.

5. The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:

120     Standard of proof

(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 ...

120AReasonableness of hypothesis to be assessed by reference to Statement of Principles …

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)       a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

6. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority (“RMA”). However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” applicable to the veteran. That matter is to be determined to the decision-maker’s reasonable satisfaction in accordance with s 120(4) of the Act. The veteran’s death certificate was in evidence. It is common ground and I am satisfied that the cause of the veteran’s death was metastatic carcinoma prostate[1] and that the clinical onset of that condition was mid 2004[2].  For that condition, the relevant Statement of Principles is Instrument No 28 of 2005.  Therein, factor 5(c) and the definition of “animal fat” read:

[1] See the death certificate, dated 7 February 2007, and the medical report of Dr Rick Abraham, medical oncologist, dated 9 November 2007.

[2] See QML Pathology report, dated 7 July 2004.

5(c)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;

“animal fat” means fat contained in or derived from:

(a)meat, other flesh or offal from animals (including birds but excluding seafood);

(b)       dairy products; or

(c)       eggs from birds;

EVIDENCE FROM FAMILY MEMBERS

7.      Evidence of the veteran’s dietary patterns comprised statements by Mrs Bawden, by her son-in-law Derek McDowell and by her daughter and son, Jennie McDowell and Chris Bawden, in joint statements.  In addition, oral evidence was given by Mrs Bawden and Mrs McDowell. 

8.      Prior to his service, the veteran lived on a dairy farm in rural Victoria.  He was 18 years of age on enlistment and weighed 120 pounds.  The veteran’s mother retained ownership of the farm after the war and the veteran and his family were accustomed to spending their annual vacation there.  Mrs McDowell was born in 1954 and recalled these vacations in the 1960s and early 1970s.  She described a simple lifestyle by her grandmother and uncles who lived there.  Milk was plentiful, vegetables were grown on the farm and meals frequently resulted from hunting rabbits and fishing in local streams for fish and eels. 

9.      As to diet on service, the veteran identified bully beef and biscuits and also described his dislike of sago because of how it was prepared in New Guinea.  He did not indicate to Mrs Bawden or his children whether or not he enjoyed the bully beef.  However, the veteran’s son in law, Derek McDowell, completed a statutory declaration on 11 June 2008 where he described the veteran as having complained about the poor food on service, especially the bully beef. 

10.     From 1946 until 1951, nothing is known of the veteran’s diet except that, as a bank employee in country areas, he occupied a bank residence and took his meals in hotels.  From their marriage in November 1951, Mrs Bawden assumed responsibility for preparation of the veteran’s meals.  For most of his working life until he retired in 1982, he was a bank teller and then a manager in country areas of Queensland and also, from 1972 to 1975, in New Guinea. 

11.     Mrs Bawden completed a dietary report on 22 June 2007 in which she detailed the veteran’s daily eating pattern from 1956 onwards.  This was completed without assistance from Mrs McDowell or her brother.  The veteran’s breakfast was described as comprising cereal as well as bacon and eggs with toast.  Lunch was variously described as cold meat and salad, soups with bread or toast, sandwiches and fruit.  Dinner was said to variously comprise roast meat, fried steak, fried sausages, fried rissoles, casseroles and corned beef as well as a variety of vegetables with desserts and fruit.  Morning tea comprised tea and biscuits; tea was sometimes taken in the afternoons.  Take-away food was referred to with a frequency of once per fortnight. 

12.     In 2008, Mrs McDowell realised that the material provided in the dietary report reflected the eating patterns of her father’s later years when he was in the practice of consuming less because of his failing health.  On 17 June 2008, Mrs Bawden revised the dietary report with the assistance of Mrs McDowell.  The result was a record of an increased level of food consumption, particularly in relation to lunch and dinner.  Meat pies and well buttered bread were added to the former; pan fried fish, chips cooked in lard and home-cooked untrimmed steak were added to the latter.  Take-away food was described at work for the veteran’s lunch as comprising hamburgers, sausage rolls, sandwiches, pies and pasties.

13.     Mrs Bawden described a similar diet for the veteran when they lived in New Guinea and she said that neither of them gained weight in the period of their residence there.  She said that the veteran played lawn bowls on a regular basis after 1962 and that this continued for a period while they were in New Guinea. She described him as a man of average build who developed a “paunch” in his later years. 

14.     In her evidence, Mrs McDowell confirmed her recollection of the eating arrangements at the family farm when on vacation as well as her father’s reduced consumption in his later years.  She recalled that the family generally ate what her father liked and that steak was usually on the menu for breakfast in the 1960s and until she left home in the early 1970s.  She described her father as a moderate eater of a medium sized meal.  Mrs McDowell lived away from her family from 1977 until 1988 while she was overseas.  She said that the only time she could recall a significant change in her father’s diet was after a birthday function in 2003 or 2004 when he became ill, possibly from food poisoning.  She believed he reduced his food consumption after that.

OTHER EVIDENCE

15.     Accredited Practising Dietician and Nutritionist, Trudy Williams, of the Wesley Nutrition Centre, and Tara Diversi, from Health Management Dietetics, provided reports, dated 6 August 2007 and 28 November 2008, respectively.  Ms Williams was reliant on only the first of the dietary reports completed by Mrs Bawden.  In her opinion, that data revealed an increase of 4.6 grams or 3.7% in animal fat or, if margarine was included, 14.6 grams or 11.6% in post-war consumption.

16.     Ms Diversi’s report incorporated Mrs Bawden’s second dietary report.  Her opinion was that the veteran was slightly underweight when he enlisted and probably consumed a diet of no less than 119.7 grams per day in pre-service years.  Her opinion was that the increase in the veteran’s weight during service would require an additional consumption of 14.66 grams per day.  As for the data provided by Mrs Bawden, Ms Diversi concluded that this revealed an increase from pre to post-service daily animal fat consumption to 231-242 grams while the veteran was working and to 203-208.42 grams after he retired.  In each case, this represented an increase substantially greater than the threshold required by the Statement of Principles.  Ms Diversi concluded that the post-service consumption estimates provided to her would be realistic if the veteran was obese or was overweight and had other co-morbidities such as high LDL cholesterol.  She concluded that they would be unrealistic if the veteran was within the healthy weight range and did not have high cholesterol.

17.     In a statement, dated 20 March 2009, Mrs Bawden and Mrs McDowell challenged the conclusions reached by Ms Diversi in that she overestimated the size of the veteran’ meals.  They considered that a correct assessment of this would have revealed an increase greater than the levels required by the Statement of Principles but less than the high calculations Ms Diversi made.  In the statement, they declared that no one who knew the veteran would ever have described him as obese though they conceded that a “pot belly” developed as he aged.  There is no record of the veteran’s weight after 1946.

PROCEDURE FOR CONSIDERATION

18.     The procedure to be adopted in determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms[3]:

(i)The Tribunal must consider all 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.

(ii)If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ...

(iii)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.

(iv)The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused ... 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 of onus of proof or the application of any presumption will be involved.

[3] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 – 83.

Step 1:  Hypothesis

19.     The first step requires that there be material which points to a hypothesis connecting the condition which caused death with service.  For Mrs Bawden, Anthony Harding submitted that the veteran had a low animal fat diet before service; that this increased during service because of the food he consumed thereby resulting in a weight gain from 120 to 133 pounds; and that this preference for food with high animal fat content continued after service and remained with the veteran for at least five of the years from 1979 to 2004.  We accept that this constitutes a hypothesis of a connection of the veteran’s death to service.

Step 2:  Statement of Principles

20.     The second step requires identification of the relevant Statement of Principles for malignant neoplasm of the prostate.  At and since the date of Mrs Bawden’s claim, this is Instrument No. 28 of 2005.

Step 3:  Reasonableness of the Hypothesis

21. The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of subsection 120(3) of the Act. This step is not concerned with proof of the claim. Rather, it relates to the question of whether there is some material which calls for a determination under subsection 120(1) of the Act[4]. This requirement will be met if a hypothesis fits or is consistent with the template provided by factor (c) and the associated definition in the Statement of Principles.

[4] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.

SUBMISSIONS 

22.     Mr Harding submitted that the veteran, at 120 pounds, was under average weight for his age of 18 years when he enlisted in the army and that this reflected the diet and lifestyle of a typical young man raised, as the veteran was, on a dairy farm in country Victoria.  He submitted that his diet was low in animal fat at that time, that this changed during his service and that, as a result and despite the heat of tropical service, he gained weight such that he weighed 133 pounds at the time of his discharge medical on 30 May 1946.  Mr Harding submitted that the nature of the exercise of estimating food consumption for another person over many years is inherently inaccurate and bound to give rise to some inconsistencies in the evidence[5].  Nevertheless, he submitted, there was material which pointed, for more than 5 years in the 25 year period before the clinical onset of the veteran’s prostate carcinoma, to his preference for and consumption of food with high animal fat content to the level required by the Statement of Principles.  Further, Mr Harding submitted that the veteran’s high fat consumption in post service years was causally related to the pattern of eating engaged in by the veteran during his army service.

[5] Mr Harding referred the Tribunal to Gill and Repatriation Commission [2005] AATA 1276.

23.     For the respondent, Bruce Williams submitted that there were many inconsistencies in the evidence concerning the food consumption patterns of the veteran.  As to his service years, Mr Williams noted that the veteran had described regular meals of biscuits and bully beef which he did not like.  He also developed a dislike of sago because of his observations of the manner of its preparation in New Guinea.  Mr Williams submitted that there was no evidence of food patterns from the veteran’s discharge until he married Mrs Bawden in November 1951.  He also submitted that there was no evidence that the veteran was any more than average weight for most of his post-service years except that he developed a paunch in later years and that this did not point to an increase in animal fat consumption as required by the Statement of Principles.  Mr Williams also submitted that, even if there was an increase in animal fat consumption, there was no material which pointed to it being related to his service.

CONSIDERATION

24.       We accept Mr Harding’s contention that the process of estimating food consumption for another person over many years is inherently inaccurate and bound to give rise to some inconsistencies in the evidence.  We note such an observation by the Tribunal in the case referred to by Mr Harding ie Re Gill and Repatriation Commission[6].  There, Mr Gill’s prostate cancer was accepted as being related to service under factor 5(c).  However, in that case, the Tribunal found that Mr Gill’s diet in service years was much higher in animal fat than was his pre-war diet and that he developed a taste for food containing animal fat during his service[7].  That is not the case in the matter before us.  Here, the veteran’s weight increased from 120 to 133 pounds during service but Ms Diversi’s evidence was that the increase in weight would require an additional consumption of only 14.66 grams per day.  Further, the only reference to the veteran’s attitude to his service food was that he found it poor, especially the bully beef. 

[6] [2005] AATA 1276 at para [30].

[7] Op cit at para [32].

25.     In Gill, the Tribunal was able to rely on evidence from Mr Gill’s brother who lived with the veteran Gill before the War and also lived for 12 months after the War with the veteran Gill and Mr Gill’s first wife.  Mr Gill’s brother was able to give evidence of a low animal fat diet prior to service and to a high animal fat diet in the immediate post-service period and beyond.  Here, while the evidence points to a low animal fat diet before service, there is no evidence of the veteran’s dietary patterns after service until late 1951 when he married Mrs Bawden except that he was accustomed to taking some meals in a hotel.  Of course, that five year period from 1946 to 1951 precedes the 25 year period (1979 to 2004) which is the focus of the Statement of Principles in this case.  However, it means that there is an absence of material pointing to the veteran having developed a taste for food containing animal fat during his service and continuing with it thereafter.  From 1951, the evidence in the revised dietary report points to a level of animal fat consumption which meets the factor 5(c) requirements.  However, unlike the situation with Mr Gill, such an absence of information about the veteran’s diet for five years means that the material before us does not point to a nexus between service diet and the veteran’s diet after 1951 and, in particular, in any five year period between 1979 and 2004. 

26. In relation to the absence of material relating to the years immediately after the veteran’s service, the Act provides that account is to be taken of difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance including any reason attributable the effects of the passage of time[8].  However, the beneficial nature of that provision does not enable a decision-maker to reach a finding not supported by the evidence[9].

[8] See s 119(1)(h) of the Act.

[9] See Jakab v Repatriation Commission [2007] FCA 898 at [36].

27.     For the material to raise a reasonable hypothesis, that material relied on must point to the hypothesis.  It is not sufficient for the material merely to raise a possibility or merely to leave the hypothesis open[10].  The material before us falls into that category in that it raises no more than a possibility of a relationship between the veteran’s service and his post-service diet.  In that way, the material merely leaves the hypothesis open.  For that reason, the hypothesis advanced on behalf of Mrs Bawden is not reasonable and it follows that the third of the Deledio steps is not satisfied.

[10] See Repatriation Commission v Bey (1997) 149 ALR 721 at 730 (CHECK).

Step 4:  Is Death War-Caused?

28.     As no reasonable hypothesis of a relevant relationship is raised between carcinoma of the prostate and the veteran’s eligible service, it follows that his death from that condition is not war-caused and it is not necessary for consideration to be given to the fourth of the Deledio steps.

DECISION

29.The Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Signed: ...................[Sgd]..........................................................       Kate Slack, Research Associate

Date/s of Hearing  29 September 2010
Date of Decision  11 October 2010
Counsel for the Applicant         Mr Anthony Harding
Solicitor for the Applicant          Mr John Cockburn
Solicitor for the Respondent     Mr Bruce Williams, departmental advocate