Bridle and Repatriation Commission
[2008] AATA 31
•14 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 31
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1533
VETERANS' APPEALS DIVISION ) Re DOROTHY BRIDLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date14 January 2008
PlaceSydney
Decision The decision under review is set aside with effect from 18 December 2003.
..................[sgd]............................
Ms N Isenberg
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL
No: N 2005/1533
General Administrative Division
Re: Dorothy Bridle
Applicant
And: Repatriation Commission
Respondent
DIRECTION [2008] AATA 31
TRIBUNAL: Ms N Isenberg, Senior Member
DATE: 6 March 2008
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting “P. Jones” as the solicitor for the Applicant and substituting the name “C. Malcolm”.
........................[sgd]........................................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – widow’s pension – operational service – claim that the veteran’s death from malignant neoplasm of the prostate was war-caused – increase in animal fat consumption due to deprivation during service – decision under review is set aside with effect from 18 December 2003
Veterans’ Entitlements Act 1986 – sections 9, 13, 120, 120A, 196B
Statement of Principles concerning malignant neoplasm of the prostate – Instrument No. 28 of 2005
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Law (1980) 31 ALR 140
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
14 January 2008 Ms N Isenberg, Senior Member 1. The decision under review is the decision of the Repatriation Commission dated 29 March 2004, as affirmed by the Veterans’ Review Board (“the VRB”) on 11 November 2005, that refused the claim that the death of Sidney Bridle (“the veteran”), the Applicant‘s husband, was service-related.
ISSUE BEFORE THE TRIBUNAL
2. The issue to be considered by the Administrative Appeals Tribunal (“the Tribunal”) is whether the veteran’s “kind of death” was malignant neoplasm of the prostate, and whether that condition was war-caused.
BACKGROUND
3. Mr Bridle served in the Australian Army between 18 February 1942 and 26 March 1946. He served mostly in PNG and Bougainville.
4. The whole of his service was “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”).
LEGISLATIVE BACKGROUND
5. Section 8 of the VE Act sets out when an injury or disease is taken to be war-caused: if the veteran’s death resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to his eligible war service or the veteran’s death was due to a disease that he would not have contracted, but for his having rendered eligible war service, or but for changes in his environment consequent upon his having rendered eligible war service.
6. Where a veteran’s death was war-caused, the Commonwealth is liable to pay a pension by way of compensation to a dependent, which includes a widow: section 13(1) of the VE Act.
7. As the veteran had operational service, the determination of whether his death was war-caused is to be made by applying subsections 120(1) and 120(3) of the VE Act. Those subsections require me to find that the veteran’s death was war‑caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding.
8. If the Repatriation Medical Authority (“RMA”) is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (“SoP”) (section 196B of the VE Act). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service.
EVIDENCE
9. I had before me the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975. The following documents were tendered at the hearing:
Exhibit A1 Report of Dr Volker dated 12 March 2006
Exhibit A2 Report of Dr Volker dated 18 January 2007
Exhibit A3 Statement of Mrs Bridle dated 7 March 2006
Exhibit R1 Report of Dr English dated 30 September 2006
Exhibit R2 Report of Dr English dated 13 November 2006
Exhibit R3 Report of Dr English dated 2 March 2007
Exhibit R4 Service documents
Exhibit R5 Departmental Hospital file
Exhibit R6 Departmental Medical file
Exhibit R7 Dr Manion – clinical notes
Exhibit R8 Sutherland Hospital notes
10. Mrs Bridle gave evidence. Evidence was also given by Dr Volker and Dr English, who practise as a consultant dietitian and nutrition consultant, respectively.
11. At my request, historical evidence was obtained, and reports from Lieutenant Colonel Barry Morgan of Writeway Research Service Pty Ltd and Brendan O’Keefe were produced by the Respondent and the Applicant, respectively.
CONSIDERATION
12. The death certificate described the veteran’s cause of death as follows:
Cause of death Cardiac arrest minutes
And duration of last illness Spread of prostate cancer years
13. It was not in dispute that the underlying cause of death was prostate cancer.
14. Where a SoP exists I must apply the test prescribed by subsection 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
1. 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.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war- caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Steps 1 And 2: What Is The Hypothesis And Is There A Relevant Sop?
15. Mrs Bridle’s contention was as follows, as set out in the Applicant’s Outline of Submissions:
(a)her husband had an average diet for an adult male prior to his enlistment, consuming an average of 126 grams of animal fat a day;
(b)during his 3 years in New Guinea and Bougainville her husband was often hungry and confined to a monotonous diet he did not like;
(c)following his discharge, he ate a diet high in fat and thus flavour, in part, to compensate for, and as a reaction to the diet he had on service; and
(d)during the 5 years from 1968 to 1973 inclusive, his consumption of animal fat was at least 176 grams a day, and thus 40% higher than it had been before his enlistment, and this increased animal fat consumption was contributed to by his diet on service.
16. It is not in dispute that the SoP relevant to the Applicant‘s hypothesis is the SoP concerning malignant neoplasm of the prostate, Instrument No. 28 of 2005.
Step 3: Does The Hypothesis Conform To The Template In The Sop?
17. This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP.
18. As to the question of whether the hypothesis conforms with the SoP, factor 5(c) of the SoP was relied on:
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...”
19. For the purposes of the SoP, “animal fat” is defined as:
“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;
20. At this stage, I must consider all of the material before me, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
21. A “reasonable hypothesis” involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364 at 372.
22. Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
23. There was no dispute that the clinical onset of malignant neoplasm of the prostate was 1989. Therefore, the relevant 25 year period was 1964 to 1989.
24. As Mrs Bridle did not meet her husband until after his service, information about his pre-service diet was obtained from other sources. Mr Bridle arrived in Australia from the United Kingdom in 1932 as a 16 year old cabin boy on a migrant ship. He jumped ship and worked as a farmhand and a mechanic. He was provided with food and board. Mrs Bridle told Dr Volker that her husband considered that the quality of the food provided varied.
25. Dr Volker estimated that Mr Bridle’s pre-service animal fat intake was 126 grams a day, being the estimate of the average adult male provided by the 1936/38 Survey of Household Food Budgets. Dr English also estimated that Mr Bridle’s pre-service animal intake was 126 grams a day on the same basis.
26. I am therefore satisfied that there is material pointing to a pre-service fat consumption of 126 grams a day, and that this is the ‘base’ intake from which the veteran’s increase in consumption is to be measured.
27. Mrs Bridle gave evidence, consistent with statements from 1994 and 1995 made in relation to an earlier application, that in New Guinea there were times when Mr Bridle was left virtually alone, and of being without supplies for days. She contended that his war service must have exacted a toll (T4 p 18 and T6 p 25-26). Dr Manion, the veteran’s treating oncologist also referred in her undated report to periods when Mr Bridle was left alone in New Guinea and often left without supplies (T6 p 24).
28. In her statement of 7 March 2006 (Exhibit A3), Mrs Bridle stated that her husband’s diet on service included bully beef, baked beans and hard biscuits, and of him often running out of food, and of him coming back home lighter than when he enlisted. The service records confirm that his weight dropped 8 pounds between the enlistment and discharge medical examinations (Exhibit R4).
29. Mrs Bridle gave evidence that her husband’s rations were not to his liking. In her statement, she noted that towards the end of her husband’s service he met up with the US Army and was “amazed” at their food, and he had stated that it was a disgrace what the government provided for Australian soldiers. In evidence, she stated that she thought he spent at least a month with the US forces.
30. Dr Volker wrote that Mrs Bridle’s husband found his service in New Guinea “unsettling” because there were times when he was left by himself with insufficient food, and he also spent some six months with US forces eating their rations and enjoying the meat, dripping, butter, cheese, milk and bacon (Exhibit A1). Dr Volker states that these factors made it difficult to estimate Mr Bridle’s animal fat consumption on service but, based on Australian service ration scales, she estimated that Mr Bridle’s service diet contained an average of 121 grams of animal fat and an energy intake of 14,300 kilojoules a day. Dr Volker found this to be insufficient for his energy requirements.
31. Dr English also relied on Australian ration scales and estimated that Mr Bridle’s service diet contained an average of 119.3 grams of animal fat a day and noted that Mr Bridle only spent one month eating US rations (Exhibit R1). Her statement about the time spent with US forces is consistent with Mrs Bridle’s evidence to the Tribunal.
32. Mrs Bridle stated that when her husband returned from service he had a very “bad diet of fatty meat and other fatty foods and salt”, and he “wanted fatty foods because that made him feel satisfied”. Her evidence was that his attitude was that “no meat was a sin” and he loved meat three times a day, especially fried food.
33. Based on Mrs Bridle’s memory of how Mr Bridle, who had been widowed, fed his family, Dr Volker initially estimated that he was consuming 191 grams of animal fat a day during the period 1964 to 1969 (Exhibit A1), although in Exhibit A2 she estimated the fat intake for the period as 199 grams.
34. Dr English based her assessment on a slightly different period: 1969 to 1974. She also noted Mrs Bridle’s observation that, before their marriage, her husband “had taken full care of his two children from his first marriage and had maintained a strictly organized system for home care and meals” and his diet was “well-established” when she met him. Dr English estimated that Mr Bridle consumed 189.3 grams of fat a day (Exhibit R1).
35. The Respondent conceded that, in any event, both doctors had calculated the increase in fat consumption at over 50% which reaches the level required to meet the relevant factor in the SoP.
36. The combined effect of the evidence from Mrs Bridle, Dr Volker and Dr English is to point to a hypothesis that Mr Bridle increased his consumption of fat from pre-war to post-war by at least 40% and to a level of at least 50 grams/day and that he maintained that level of fat consumption for 5 years within the 25 years leading up to the onset of malignant neoplasm of the prostate in 1989.
Step 4: can I be satisfied beyond reasonable doubt that the veteran’s death is not war-caused?
37. This step involves making findings of fact from the material before me. Subsection 120(1) of the VE Act provides that the claim will succeed unless I am satisfied, beyond reasonable doubt, that there are no sufficient grounds for determining that the veteran‘s death was war-caused. If I am not so satisfied, the claim must succeed by virtue of subsection 120(1). In examining this question, I note that there is no onus of proof (see subsection 120(6) of the VE Act and Bushell v Repatriation Commission (1992) 175 CLR 408).
38. The Respondent contended that the material before the Tribunal was not capable of supporting a conclusion that the veteran’s death was war-caused. The Respondent contended that there was a lack of evidence supporting a connection between the veteran’s operational service and any post-service increase in animal fat consumption and deficiencies in the evidence as to the veteran’s animal fat intake prior to, during and post-service. Ultimately, there was no difference in the evidence as to the pre-service fat consumption and little in relation to his service (fat) intake.
Connection with service
39. A “war-caused death” is defined in section 8 of the VE Act, and most commonly is a death which “arose out of, or was attributable to, any eligible war service rendered by the veteran”: subsection 8(1)(b). The cause need not be the sole or dominant cause – it is sufficient to show “attributability” if the cause is one of a number of causes: Repatriation Commission vLaw (1980) 31 ALR 140 at 151. A small but real contribution is sufficient as a contributing factor to the contraction of the disease or to its aggravation, acceleration or recurrence: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
40. The Applicant’s hypothesis relied on an assertion that the veteran, during his three years in New Guinea and Bougainville, was often hungry and confined to a monotonous diet he did not like and that post-service he overcompensated for that deprivation.
41. I requested the Respondent to arrange for a historian’s report about the likelihood of the deprivation upon which the Applicant’s contention relied. I permitted the Applicant to supply a report if desired. I had before me the reports of LTCOL Morgan dated 23 July 2007, on behalf of the Respondent, and Mr O’Keefe dated 12 October 2007, on behalf of the Applicant.
42. Mr O’Keefe cited anecdotal evidence, from interviews with Australian servicemen who served in New Guinea at the same time as the veteran, of food shortages. There was evidence of pilfering and of members of the veteran’s unit complaining about the food.
43. Mr O’Keefe referred to the war diary for the unit:
On 1 July 1943, the very day that the war diary of 156 Light Anti-Aircraft Battery re-commenced after its lapse from 1942, the diary reported that food supplies were ‘dwindling daily’. They soon became ‘most acute’ and, on 4 July the whole battery was only issued with six tins of tomato juice, seven tins of bacon and a small quantity of rice and peas.
44. Mr O’Keefe noted that when later posted to Bougainville Mr Bridle spent most of his time in an enclave around Torokina that was shared by Australian and US troops. Mr Bridle would thus have become aware of, and may have had access to, US rations.
45. It was conceded, on behalf of the Applicant, that there was no material in the reports that supports Mrs Bridle’s claim that her husband was separated from his unit at times. However, from 9 February 1943, he was part of 156 Light Anti-Aircraft Battery or its Workshop Sub-Section, which was then at the front line. There is no war diary for the Battery or its Workshop from 9 February 1943 until about the middle of 1943 and Mr Bridle may have been separated from his unit during this period. In any event, I accept that the Applicant’s case is not based on whether he was separated from his unit but on the inadequacies of his diet.
46. LTCOL Morgan found no evidence to substantiate the claim that Mr Bridle suffered a shortage of food or rations during his service. Significantly, however, he concluded that this did not mean the veteran was not deprived of food or rations.
47. Based on the historical research, I accept that Mr Bridle is likely to have been hungry at times in New Guinea, and that the available food was either inadequate, unattractive and/or monotonous.
48. Dr Volker attributed the higher fat diet after discharge to the deprivation in the field, contrasted to the excess in the US forces mess and noted Mrs Bridle’s comment that “only animal foods satisfied [her husband’s] hunger”. She stated that Mr Bridle’s animal fat consumption post-war reflects the food choices of an adult male often deprived of food, and “it is probable that the food deprivation experienced during war service motivated the veteran to ensure he always had a plentiful supply of animal foods in civilian life”. She explained, in her evidence, that fat was the vehicle for flavour in Australian diets at the time and, having been deprived of enjoyable food on service, Mr Bridle overcompensated when he could afford to do so, after his discharge, by adopting a high fat diet which had more flavour.
49. Dr English declined to comment, in her report of 30 September 2006, on the relationship between the veteran’s operational service and any change in his animal fat intake as she had limited information about alleged deprivation. In this regard, I note I offered the parties the opportunity to refer the historians’ evidence to their respective nutrition experts, but neither chose to. Dr English offered alternative explanations for the increase in fat consumption: increased availability of meat and dairy foods after the war or as a result of Mr Bridle’s first marriage. In her evidence, she was unable to refer to studies which might support or negate Dr Volker’s view and, it seemed, was uncomfortable in being asked to express a view of her own. On that basis, I found her evidence about this fundamental aspect of the case, to be unhelpful, and I must prefer the evidence of Dr Volker.
50. The Respondent took issue with the reliability of the evidence as to the calculation of the fat component of the veteran’s post-service diet. Dr English had opined that the dietary information, which was used to calculate the veteran’s post-service animal fat intake, was invalid on the basis that the estimated fat consumption would have resulted in the veteran having a very large weight gain. There was no evidence that such a weight gain occurred.
51. Based on Mrs Bridle’s memory of how Mr Bridle fed his family, Dr Volker estimated that he was consuming 191 or 199 grams of animal fat a day and had a daily energy intake of 14,600 or 15,807 kilojoules during the five years from 1964 to 1969. Based on a physical activity level of 1.8 she found his energy requirement was between 12,100 to 14,700 kilojoules, applying a conservative 10 per cent coefficient of variation (Exhibit A1).
52. Dr English initially estimated from the information provided by Mrs Bridle that the veteran consumed 189.3 grams of fat a day and that his post-service energy intake was 14,895 kilojoules a day (Exhibit R1). In Exhibit R2, Dr English revised these figures to 224.8 grams of fat consumed daily and 17,506 kilojoules post-service energy intake. She found that the veteran’s energy requirements were no more than 13,922 kilojoules a day, based on a more conservative assessment of the veteran’s energy requirements than Dr Volker. In Dr English’s opinion the veteran’s post-service diet return was “clearly invalid” otherwise the veteran would have increased his weight by 50 or more kilograms in the five year period.
53. Mrs Bridle’s evidence was that her husband ran a printing shop and did everything there, and was on the move all the time. She said that he was also active at home and was always doing something around the house and would go for walks.
54. Attached to Dr English’s report of 2 March 2007 was a Table of Energy Expenditure Levels for Different Lifestyles. The relevant descriptors are as follows:
Description of Lifestyle Examples of occupations PAL … 3. Sedentary activity/seated work with some requirement for occasional walking and standing but little or no strenuous leisure activity Laboratory assistants, drivers, students, assembly line workers 1.6-1.7 4. Predominantly standing or walking work Housewives, salespersons, waiters, mechanics, traders 1.8-1.9 … 55. I consider that the activity level suggested by Mrs Bridle would suggest an activity rating of 1.8-1.9 to be appropriate. On the basis of a conservative 1.8 activity rating, Dr Volker estimated the veteran’s energy requirements at approximately 13,400 kilojoules (Exhibit A1 and A2).
56. Allowing a conservative 10% for variability provides a maximum energy requirement of 14,741 kilojoules, which is only 1% below the estimated energy intake of the veteran as calculated by Dr English initially. I do not consider the excess consumption to be of significance. I note that there was a weight gain of 7 kilograms between discharge and the veteran’s 1973 hospital admission. Dr English agreed that she had not taken into account that if there was increased weight, that in itself produces an increase in energy requirements.
57. Even if there was some over-reporting as to total food consumption by Mrs Bridle I accept that the proportions of food estimates were accurate. Therefore, even if the veteran’s energy intake was equivalent to the veteran’s energy requirements, as conservatively estimated by Dr English, then the post-service increase of fat intake would still be over 40%.
58. For these reasons I prefer the opinion of Dr Volker that Mr Bridle’s fat consumption was at the level required by the SoP and that the reason for his increase in fat consumption was connected with his service.
59. It follows that I am not satisfied, beyond reasonable doubt, that Mr Bridle’s death was not war-caused.
CONCLUSION
60. For the above reasons, I am not satisfied beyond reasonable doubt there is sufficient ground for determining that the veteran’s death was not war-caused. I must accordingly determine, by virtue of subsection 120(1) of the VE Act, that Mr Bridle’s death was war-caused.
DECISION
61. For the above reasons, I set aside the decision under review with effect from 18 December 2003.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ...............[sgd].................................................................
AssociateDates of Hearing 8 and 9 March, 12 December 2007
Date of Decision 14 January 2008
Counsel for the Applicant C. Colbourne
Solicitor for the Applicant P. Jones
Solicitor for the Respondent T. O'Reilly, Department of Veterans' Affairs
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