Butler and Repatriation Commission
[2005] AATA 1302
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1302
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/525
VETERANS' APPEALS DIVISION ) Re AUDREY BUTLER Applicant
And
REPATRIATION COMMISSION
Respondent
ORDER
Tribunal : Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander
Date : 9 January 2006
Place : Sydney
OrderPursuant to s 43AA of the Administrative Appeals Tribunal Act 1975, the text of the decision in this matter dated 23 December 2005, has been altered as shown in bold type below:
Decision:The decision under review is set aside and substituted therefor is the decision that the death of Mr Butler was war-caused.
Paragraph 63: For the above reasons, we set aside the decision under review and substitute for that the decision that the death of Mr Butler was war caused.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander Date23 December 2005
PlaceSydney
Decision The decision under review is set aside and substituted therefor is the decision that Mr Butler’s carcinoma of the prostate was war-caused.
[sgd] Senior Member Mrs Josephine Kelly
Presiding Member
CATCHWORDS
VETERANS’ APPEALS – war widow pension – operational World War II Service – kind of death was carcinoma of the prostate – an hypothesis comprising two sub-hypotheses - war service caused smoking habit which caused peptic ulcer which was treated by a high fat diet which caused carcinoma of the prostate – whether “diagnosis” of peptic ulcer necessary on balance of probabilities - “reasonable hypothesis” – facts not disproved beyond a reasonable doubt – death war caused – decision set aside.
LEGISLATION
Veterans’ Entitlement Act 1986 ss 120, 120A
CASELAW
Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003)
Repatriation Commission v Deledio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 65 ALD 609
Byrnes v Repatriation Commission (1993) 177 CLR 564REASONS FOR DECISION
23 December 2005 Senior Member, Mrs Josephine Kelly and
Member, Dr Ion AlexanderBackground
1. On 21 July 2000 (T6), Mrs Butler lodged a claim for a pension pursuant to the Veterans’ Entitlements Act 1986 (“the Act”) in respect of the death of her husband. He died on 15 May 2002 and the cause of death was recorded as -
Carcinoma prostate 10 years (T6 p 29)
2. On 7 August 2000, a delegate of the Commission refused the claim (T2). On 8 October 2000 Mrs Butler applied for a review by the Veterans' Review Board (“the VRB”), which affirmed the delegate’s decision on 5 March 2002 (T12).
3. It was not in dispute that all of Mr Butler’s service during World War II was operational service. If Mrs Butler is successful the Date of Effect is 16 May 2002, the day after Mr Butler’s death. It was also not in dispute that the kind of death suffered by Mr Butler was carcinoma of the prostate (T6 p 29).
The Hypothesis
4. The issue was whether Mr Butler’s death was war-caused within the meaning of s 120(1) of the Act. The hypothesis postulated in Mrs Butler’s case to link Mr Butler’s operational service with his death is as follows:
· Mr Butler started smoking during and because of his service.
· His smoking resulted in a peptic ulcer.
· On medical advice, he began a high fat diet as a form of treatment for the peptic ulcer.
· The high fat diet caused carcinoma of the prostate which caused his death.
Mrs Butler’s Evidence
5. Following is a summary of Mrs Butler’s evidence. She met her husband in Dubbo on 20 March 1942, his 18th birthday. At that time Mr Butler did not smoke. After he had been in the Army for about 12 months, he returned to Dubbo for some dental care. That was the first time Mrs Butler noticed that he had begun smoking.
6. Mr and Mrs Butler married on 8 March 1947. She said that the wedding was nearly postponed because Mr Butler had stomach trouble of some kind which she had thought then may have been an appendix. Mr Butler was confined to bed for the week before the wedding.
7. After they were married she recalled that he was smoking a packet of cigarettes a day and also “rolling his own”.
8. Mrs Butler stated that they had their first child, Greg, in March 1953 and she remembers her husband being sick then with stomach troubles. She described the “tummy trouble” as she referred to it, on that occasion and in the week before their wedding as being pains in the stomach, diarrhoea and nausea.
9. In the month before Greg was born she said that a doctor had told her that if you don’t spend money on food you will spend it on medical expenses. She understood that the doctor thought Mr Butler had an ulcer and that the food he recommended was to treat that condition. She began a high fat diet for Mr Butler which included full fat milk and cream when it was available. She did not cut the fat off chops which she cooked. She also made clarified fat and cooked plenty of offal, kidneys, brains and tripe.
10. Mrs Butler said that Mr Butler remained on the high fat diet until the end of the 1970s when they changed doctors and discovered that he had high cholesterol.
11. In her claim, Mrs Butler stated that the special diet for his ulcer included a high proportion of dairy products and high fat content and must be regarded as a factor in the development of his prostate cancer (T6 p 25). In the Claimant Report about the increase in Animal Fat Consumption and Malignant Neoplasm of the Prostate. Mrs Butler records that Mr Butler was on a high fat diet from 1951 to about 1995 on advice from doctors (T7 p 33). Before the ulcer diet she stated that he ate a “normal family meal” and after he was on the ulcer diet that he ate “meals included a higher proportion of dairy products including butter, milk, cheese, milk puddings and eggs. But less meat products unless of reduced fatty type.”(T7, p33)
12. During the hearing with the VRB (Exhibit R5) she stated that the high fat diet that he was on included mainly dairy foods and everything had butter, milk and plenty of cream. She said that he had lamb’s fry for breakfast and that sometimes he would have bacon. For dinner she said that they had meat, chops and sausages, and that the sausages were baked in fat in the oven.
13. In her oral evidence before us, she said that in 1959 they moved to live in a double garage at Gymea while they built their house. This was their second home and Mrs Butler continues to live there. She recalled that Mr Butler gave up smoking at that time because he was not very well and they were short of money as they had three babies by then. He did smoke socially after this date though.
14. In her evidence to the VRB (Ex R5) Mrs Butler said that her husband stopped smoking 2 years into their marriage which was about 1949 or 1950 because he was not well and they had built a house and they could not have children. She became confused when her answer in a smoking questionnaire was put to her which was that he had stopped smoking in 1961 or 1962 (T11, pp 57 to 58). She then decided to “stick to ‘61” because he worked in the building trade and could not have stopped smoking as quickly as that.
15. She told us that she had told the VRB that he had quit smoking earlier as she was frazzled by the hearing. She was participating via a hand-held telephone, and the hearing went for more than an hour. She said that money was scarce in 1959 which is why she remembered he gave up smoking. She said that when she was talking about babies and smoking to the VRB, it was not true. She just wanted to get off the telephone. She knew when she said that that it was not true and that she “had blown it”.
16. In her written statement dated 12 August 2002 (Exhibit A2) Mrs Butler said that her husband quit smoking in 1961 or 1962 when they moved into their second home because he was not well and they were short on finances. She was sure that Mr Butler was suffering from an ulcer when he was ill before their wedding. He was treated again for his ulcer about 2 or 3 years after they married and was off work for 3 months. He was again sick and off work in 1953 when she was pregnant with Greg. She described how in 1949 or 1950 a doctor put Mr Butler on a diet of offal and kidneys, rich, fatty foods and told her to use lots of cream and full fat milk in her cooking. She also said that before the war Mr Butler ate lots of vegetables and rabbit and that the meals were less fatty than those she cooked. By the end of her oral evidence before us, Mrs Butler was quite firm that there were two bouts of illness she ascribed to an ulcer, the week before their wedding in 1947 and again in 1953. In 1951 or 1952 she said that Mr Butler suffered from rheumatic fever and went home to be looked after by his father, while she worked.
17. In a further written statement dated 1 July 2003 (Exhibit A3) Mrs Butler stated that in the late 1970s a Dr Cramer told Mr Butler to lower his intake of animal fat because he had high cholesterol.
Mrs Priest’s evidence
18. Mrs Christine Priest, Mrs Butler’s aunt, has stated in writing that Mr Butler started smoking in the Army because he was part of a peer group where cigarettes were rationed out and it was a way of life at the time (Exhibit A1). She also said that Dr Yeldham recommended lots of rich food to help build up Mr Butler, who weighed 8 stone after having served in New Guinea. He had stomach and bowel problems from that service.
Mr Henry Hensen
19. Mr Henry Henson has stated in writing that Mr Butler was a heavy smoker during World War II and continued smoking after discharge (Exhibit A6). He said that Mr Butler succeeded in giving up smoking and drinking socially around 1962 or 1963 when both moved to new addresses in the Sutherland Shire.
Mr Christopher Butler
20. A written statement was provided by Mrs Butler’s son Christopher (Exhibit A4). He attended the appointment his mother had with Mr Friderich, dietician, on 3 August 2002. He pointed to what he said were a number of inaccuracies and incorrect statements in that report and emphasised the delay between the date of the interview and the report date of 14 March 2003.
Medical Evidence
21. In clinical notes from Concord Hospital headed “Notes and Treatment” dated 20 March 1952 (T4, p 20), a medical history had been taken from Mr Butler. It concerned “sub acute rheumatism”. It was noted that he was a “non-smoker”. Mrs Butler said that Mr Butler would have said that because he felt like he was asking for charity and he thought that it was no one’s business if he was a smoker or not. Mr Butler said that he was “not going to tell them anything”. This document was apparently created when Mr Butler made a claim to the Department of Veteran’ Affairs.
22. In relation to the question of an ulcer, the following were in evidence. A file note dated February 1991 in Mr Butler’s Departmental “M” file noted “had a duodenal ulcer many years ago. Now quiescent” (Exhibit R1 p 47). In clinical notes produced by Dr M Bamford (Ex A8) in October 1990 there was reference to “Epigastric pain. Stop (illegible)”. In the same material in 1987 there was reference to “scarred duodenum”. Exhibit A7 contained the following material. On 23 November 1992 Dr Delaney reported that Mr Butler told him that he “has trouble tolerating non-steroidal anti-inflammatory medications due to dyspepsia and gastric ulceration”. A clinical note from St George Hospital dated 18 January 1997 recorded “Gastric ulcer – yrs ago inactive”. We understand the balance of the entry to mean no symptoms and no medication currently.
23. The following is relevant to the clinical onset of cancer of the prostate. A report in Dr Foster’s clinical notes dated 27 June 1989 referred to “an operation for Prostate Ca. in 1985” (Exhibit A7). A clinical note from St George Hospital dated 18 January 1997 noted “Ca prostate 1985” (Exhibit A7).
Expert Evidence about Diet
24. Four reports prepared by Ms Heyman, dietician, were relied on in Mrs Butler’s case (Exhibit A5). Ms Heyman analysed Mr Butler’s eating pattern as described by Mrs Butler. She concluded that there was a 64.6% to 125% increase in the animal fat content of his diet during his army service when compared to his pre-service diet and that he continued on a high animal fat diet post-service on medical advice as treatment a peptic ulcer. That latter diet represented a 214% increase in the animal fat content compared to Mr Butler’s pre-service diet.
25. The Commission relied on the evidence of two dieticians, Ms Friderich and Dr English. Ms Friderich’s opinion set out in two reports, was based on an interview with Mrs Butler, various reports and medical documents (Ex R3). She concluded that the diet reported by Mrs Butler was unlikely to be accurate because Mr Butler demonstrated no real weight gain despite an excess of calories above energy requirement. Mr Colbourne who appeared for Mrs Butler did a calculation on the basis of Ms Friderich’s evidence that showed a 40% to 98% increase in fact intake from the post-service diet to the ulcer diet.
26. Dr English challenged Ms Heyman’s conclusions on the ground that she had failed to validate the dietary assessment that had been made with respect to Mr Butler’s pre and post-service diet (Exhibits R4 and R6). Dr English stated that it is generally accepted by nutritional scientists that people do not remember the foods that they eat even over short periods such as days, weeks or months, let alone over longer periods such as years. Her evidence was that validation requires a comparison of calculated energy intake with an estimate of energy requirements using scientifically accepted equations. She did not interview Mrs Butler at all.
27. Ms Heyman in her report of 28 January 2003 recorded that Mr Butler’s animal fat intake while on the ulcer diet was 182.9 g total fat per day. Ms Friderich in her report dated 14 March 2003 records a total fat intake of 67.05 g or 72.99g per day for his post-service diet. For the ulcer diet Ms Friderich records his total fat per day as 250.35g or 211.10g. Ms Friderich in a supplementary report wrote that Mr Butler’s total animal fat intake per day for the ulcer diet was 152 g.
The Law
28. Justice Selway held in Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003) that two preconditions other than causation must be dealt with before step one of the methodology set out in Repatriation Commission v Deledio (1998) 83 FCR 82 is followed. There is no dispute in this case that Mr Butler was a veteran who has died and Mrs Butler is his widow.
29. The next pre-condition is to identify, on the balance of probabilities, the “kind of death” the veteran suffered. It is not in dispute that the kind of death Mr Butler suffered was carcinoma of the prostate (T6).
30. For a claim relating to "operational service", made on or after 1 June 1994, the death will be war-caused unless the Tribunal is satisfied to the contrary beyond reasonable doubt (see s 120(1) as qualified by s 120(3) and s120A).
120 (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.
Note: This subsection is affected by section 120A
120 (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 120A.
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of
that kind of injury, disease or death; or(b) has declared that it does not propose to make such a 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.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
31. If there is a relevant SOP, the Tribunal must undertake the analysis as discussed in Deledio:
“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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.”
Does the material before the Tribunal point to an hypothesis connecting the death with Mr Butler’s service?
32. We conclude that the material before the Tribunal does point to the hypothesis postulated on behalf of Mrs Butler that connects Mr Butler’s service with his death, as set out at the beginning of this decision.
33. The material supporting the hypothesis comes in particular from Mrs Butler, Mr Hansen and Mrs Priest, the clinical notes in Exhibit R1 p 47 and Exhibit A8 and the reports of Ms Heyman and Ms Friderich and the calculation carried out by Mr Colbourne in respect of that report. In summary there is material pointing to Mr Butler’s having started smoking during service because of the availability of cigarettes and peer pressure, which resulted in a peptic ulcer at least by 1953, with the consequence that he increased his fat intake which caused or contributed to his death from carcinoma of the prostate.
34. There are Statements of Principle (“SOP”) for carcinoma of the prostate and peptic ulcer. The relevant SOP’s are No 21 of 1999 for Peptic Ulcer and No 28 of 2005 for Malignant neoplasm of the prostate.
Does a diagnosis of Peptic Ulcer have to be found on the balance of probabilities?
35. The hypothesis falls into the category considered in McKenna v Repatriation Commission (1999) 86 FCR 144. There is an SOP in respect of the kind of death (carcinoma of the prostate), and the hypothesis linking that death and service relies on a sub-hypothesis in respect of another disease, Peptic Ulcer, which is also the subject of a SOP. On the basis of McKenna, the hypothesis will only be reasonable if both SOPs are met which link Mr Butler’s death to his service.
36. An important issue in this case was whether in such a case it is necessary that the diagnosis of the disease relied upon in the sub-hypothesis which is directly linked with service, that is Peptic Ulcer in this case, be found on the balance of probabilities in accordance with s 120(4) of the Act. The parties agreed that there was no authority directly on this point.
37. Mr Doube who appeared for the Commission argued that the diagnosis of Peptic Ulcer had to be found on the balance of probabilities. He relied on McKenna and Lees v Repatriation Commission (2002) 125 FCR 331.
38. We understand that the genesis of that argument lies on the following passage in McKenna:
Since the Authority had determined Statements of Principles in respect of the kinds of disease suffered by Mr McKenna (s 120A(4)(b)), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable.It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant Statements of Principles. In our view, for either of the hypotheses to be upheld by a Statement of Principles, as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts”.
39. It is necessary to appreciate that Mr McKenna claimed a disability pension for ischaemic heart disease and atherosclerotic peripheral vascular disease. The Court explained:
As to each of the two relevant diseases suffered by Mr McKenna, the hypothesis included the link of the further disease of hypertension. That is, in each case the hypothesis linking the two end positions comprised two sub-hypotheses: one which linked Mr McKenna’s ischaemic heart disease or, as the case may be, his atherosclerotic peripheral vascular disease, with his disease of hypertension, and the other which linked his disease of hypertension with the circumstances of the particular service rendered by Mr McKenna via the psychiatric factors of stress or anxiety.
40. In Mrs Butler’s case there is only one “end position”, that is carcinoma of the prostate. In McKenna, the Statement of Principles concerning hypertension did not identify stress and anxiety attributable to service as a factor relating hypertension to service and therefore that sub-hypothesis was not reasonable (paragraphs 24, 25 and 26).
41. Before coming to that conclusion, the Court said:
Whilst it is open to be argued that this sub-hypothesis is itself “a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person” within the meaning of s 120A(3) of the Act, we consider that the preferable view is that the hypothesis referred to in s 120A(3) is the same hypothesis as that referred to in s 120(3). That is, in the circumstances of this case, the hypothesis connecting Mr McKenna’s ischaemic heart disease, or his atherosclerotic peripheral vascular disease, with the circumstances of the particular service rendered by him.
42. Applying that approach in this case, the “hypothesis” with which we are concerned is that linking Mr Butler’s death from carcinoma of the prostate with his service.
43. We understand Mr Doube to rely on Lees for the development of an argument as follows. The relevant factor of the SOP for Peptic Ulcer Disease (Instrument No. 21 of 1999) 5(c) required “smoking at least 10 cigarettes per day at the time of the clinical onset of peptic ulcer disease”. Before determining “clinical onset” it is necessary to look at the diagnostic criteria to make a diagnosis. In Lees the applicable SOP was for “generalised anxiety disorder” (“GAD”) and the Court said:
In relation to SoP1, the definition of (GAD) does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. … The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from (GAD).
44. In SOP 21 of 1999, “peptic ulcer disease” is defined:
2(b) For the purposes of this Statement of Principles, “peptic ulcer disease” means chronic gastric ulcer or chronic duodenal ulcer where
(i) chronic gastric ulcer is a non-malignant circumscribed loss of the mucous membrane lining the stomach extending to the submucosa; and
(ii) chronic duodenal ulcer is a non-malignant circumscribed loss of the mucous membrane lining the duodenum extending to the submucosa, attracting an ICD-9-CM code in the range 531.4 to 531.7, 532.4 to 532.7 or 533.4 to 533.7.
45. Mr Doube says that there is no evidence of the diagnostic criteria in this case, and therefore we could not be satisfied on the balance of probabilities as required by s 120(4) of the act that Mr Butler suffered from Peptic Ulcer.
46. In our opinion, the scheme of the legislation as discussed in Deledio and McKenna does not require such an approach. Section 120(1) of the legislation is the key provision. What we are concerned with is Mrs Butler’s claim for a pension in respect of Mr Butler’s death which must be war-caused if she is to succeed. The hypothesis with which we are concerned is that linking the “kind of death”, that is carcinoma of the prostate, with operational service. If this were a case where there was a dispute about the “kind of death”, that would have to be determined on the balance of probabilities in accordance with s 120(4) (Repatriation Commission v Cooke (1998) 90 FCR 307. However, there is no dispute. In Lees and McKenna the Court was considering the “hypothesis” and “reasonable hypothesis” steps of the analysis required by the legislation, not the determination of the “kind of death”, which occurs at an earlier point in the analysis.
47. We do not consider that the legislation requires that there has to be a diagnosis of Peptic Ulcer on the balance of probabilities because that condition is not the “kind of death” the subject of the claim. It is a necessary link in the connection of the carcinoma of the prostate with Mr Butler’s service in the “hypothesis”, “reasonable hypothesis” and fourth steps in Deledio. If we were satisfied beyond reasonable doubt that Mr Butler did not suffer from a peptic ulcer, Mrs Butler’s case would fail.
48. If Mr Doube’s approach were applied in this case, the critical finding would be made at the outset on the balance of probabilities, rather than at the final step where the Tribunal must find that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In our opinion, Mr Doube’s approach does not accord with the beneficial nature of the legislation, and of the provisions of s 120 and s 120A in particular.
Are the sub-hypotheses consistent with the SOPs?
49. As stated above, we consider the material before us raises an hypothesis comprising two sub-hypotheses that connects Mr Butler’s service with his death. The next step is to consider whether the hypothesis “pointed to by the material before the Tribunal” is reasonable. That will only be so in this case if the sub-hypotheses relating to Peptic Ulcer and Carcinoma of the Prostate are “upheld by, in the sense of consistent with, the relevant Statements of Principles”.
50. The relevant clauses of the Peptic Ulcer Disease SOP have been referred to earlier in this decision.
51. The meaning of “clinical onset” was considered in Lees. The material before the Tribunal points to the clinical onset of Peptic Ulcer being either in 1947 when Mr Butler had stomach trouble before the wedding, or in 1953 when he had stomach trouble again while Mrs Butler was pregnant for the first time.
52. There is material before the Tribunal that points to Mr Butler’s smoking continuing from war service until 1959 or 1960 when the Butlers moved into a double garage while building a house a Gymea. The smoking questionnaire completed at T11 which Mrs Butler answered either herself or through another person, states that Mr Butler quit smoking as late as 1961 or 1962. The material points to Mr Butler smoking a packet a day until that time. These raised facts are consistent with Factor 5(c) of the Peptic Ulcer Disease SOP, Instrument No 21 of 1999.
53. Malignant Neoplasm of the Prostate Instrument No. 28 of 2005 came into force on 19 September 2005. It is more favourable to an applicant than its predecessor. We must apply this SOP notwithstanding that it was not in force at the time when the claim for pension was lodged (Repatriation Commission v Gorton) (2001) 65 ALD 609.
54. The only factor relied upon in that instrument to link Mr Butler’s service with the disease is factor 5(c):
(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;
55. In the previous SOP (Instrument 84 of 1999) the relevant factor was also 5(c) which provided:
(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;
56. The material before the Tribunal points to the clinical onset of the malignant neoplasm of the prostate being in 1985.
57. The evidence of Mrs Butler and the reports of Ms Heyman (Exhibit A5) and Mr Colbourn’e analysis of Ms Friderich’s reports raise a fact that Mr Butler’s animal fat intake on the high fat ulcer diet increased by more than 40% and was more than 50gm/day. As set out above Ms Heyman calculates a daily animal fat consumption of more than 70 gm/day. Mrs Butler’s oral evidence before the Tribunal was that he remained on this high fat diet until the late 1970’s. At T7 in her claim form she reported that Mr Butler was on the high fat diet from 1951 to 1995 due to his ulcer and stomach problems. At the VRB hearing she stated that Mr Butler remained on the diet until 1984 which was when he retired. Thus there are raised facts that Mr Butler was on the diet until the late 1970’s, 1984 or 1995. This raises the fact that he was on the diet for at least five years with the 25 years preceding the clinical onset of malignant neoplasm of the prostate in 1985, as required by the SOPs.
Fourth Step in Deledio
58. The final step in the analysis involves making findings of fact on the material before us, bearing in mind that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Butler’s death was war-caused (s 120(1)).
59. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
60. We find that none of the facts necessary to support the “reasonable” hypothesis has been disproved beyond reasonable doubt and no fact inconsistent with the hypothesis has been proved beyond reasonable doubt. We briefly address the principal factual matters pointed to by Mr Doube for the Commission in support of his case. We find that there are inconsistencies in Mrs Butler’s evidence and statements over the years this application has been under way. Mrs Butler is 79 years of age. She has had to give evidence about what has happened over a period of nearly 60 years on several occasions. We do not find the inconsistencies at all surprising. The clinical note in 1952 stated that Mr Butler is a non-smoker. Mrs Butler has given an explanation of why Mr Butler would have said he was a non-smoker. There is also the possibility that the clinical note is not accurate.
61. The evidence of the Commission’s dieticians is that Mrs Butler’s evidence about her husband’s diet is unreliable. They argue that the records of his weight gain do not accord with what would be expected for such a diet. However, that assumes that every individual’s weight reflects energy intake in the same way. We do not accept that such an assumption is justified in this case. Therefore this evidence does not persuade us beyond reasonable doubt that Mr Butler’s fat intake was not consistent with the SoP factor 5(c).
62. Finally, the material before us does not satisfy us beyond reasonable doubt that Mr Butler did not suffer from a Peptic Ulcer
Conclusion.
63. For the above reasons, we set aside the decision under review and substitute for that the decision that Mr Butler’s carcinoma of the prostate was war-caused.
I certify that the preceding 63 paragraphs are a true copy of the reasons for the decision herein of Senior Member Mrs Josephine Kelly and Member Dr Ion Alexander
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 17 November 2005 and 6 December 2005
Date of Decision 23 December 2005
Counsel for the Applicant Mr. C. Colbourne
Solicitor for the Applicant Dibbs Abbott Stillman
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent Department of Veterans' Affairs
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