Coleman and Repatriation Commission
[2011] AATA 610
•1 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2007
VETERANS' APPEALS DIVISION ) Re Elva Coleman Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton, Dr I Alexander Date1 September 2011
PlaceSydney
Decision The decision under review is set aside and in substitution it is decided that Mr Victor Coleman’s death was war-caused. .......................[sgd].......................
Senior Member A K Britton
CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow’s pension – kind of death – malignant neoplasm of the prostate – war caused death – reasonable hypothesis – increase in post-service animal fat consumption – increase related to service - decision under review set aside
Veterans’ Entitlement Act 1986 (Cth) – ss 13, 120, 120A, 196B(14)
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832
Cameron v Repatriation Commission (2003) 77 ALD 81; [2003] FCA 1323
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Statement of Principles concerning Malignant Neoplasm of the Prostate; Instrument No 28. of 2005
REASONS FOR DECISION
1 September 2011 Senior Member A K Britton 1. Mrs Elva Coleman is the widow of veteran, Mr Victor Coleman, who died of prostate cancer in October 2007 at the age of 86. Mrs Coleman’s claim, made under the Veterans’ Entitlement Act 1986 (Cth) (the Act), for a war widow's pension was refused by the Repatriation Commission (the Commission) and on review, by the Veterans' Review Board. She now seeks review of that decision by the Administrative Appeals Tribunal.
2. Mr Coleman enlisted in the Australian Army in December 1941 and was discharged in June 1946. His entire period of service constitutes “operational service” within the meaning of the Act.
3. There is no argument that the “kind of death” suffered by Mr Coleman was death from prostate cancer. Mrs Coleman’s entitlement to a pension under the Act turns on whether that condition was “war-caused”.
Statutory framework
4. Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.
5. In determining whether Mr Coleman’s death was “war-caused”, we are required to apply the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
(1) Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) or (2) 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:
...
(c) that the death was war-caused ...
This subsection is affected by section 120A.
6. Section 120A is headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles” and relevantly provides:
(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);
...
that upholds the hypothesis.
7. The approach to be taken when applying these provisions was authoritatively determined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 and involves a four-step process:
·First, the Tribunal must consider whether all the material before it points to a hypothesis connecting the death with the circumstances of the particular service rendered by Mr Coleman.
·Second, if the material raises such a hypothesis, the Tribunal must ascertain whether there is a Statement of Principles (SoP) in force.
·Third, if an SoP is in force the Tribunal must consider whether the hypothesis is reasonable by determining whether it is consistent with the “template” found in the SoP.
·Fourth, the Tribunal must then consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused.
Does the material “point to” a hypothesis connecting Mr Coleman’s death to service?
8. In summary, the hypothesis advanced by Mrs Coleman is that:
1. Clinical onset of malignant neoplasm of the prostate occurred in June 2006.
2. Throughout the five-year period, 1981 to 1986, Mr Coleman’s animal fat consumption was at least 50 g per day.
3. Mr Coleman’s animal fat consumption throughout that five-year period was increased by, and maintained at, at least 40% of the amount he had consumed pre-service.
4. Mr Coleman’s increased level of fat consumption in the period 1981 to 1986 was “related to” service in that it “was contributed to, in a material degree” by service: s 196B(14).
9. There is no dispute that there is material before us that “points to” a hypothesis connecting Mr Coleman’s death with the circumstances of his war service and that there is a relevant Statement of Principles (SoP), namely Instrument No 28 of 2005 concerning Malignant Neoplasm of the Prostate (SoP No 28).
Is the hypothesis reasonable?
10. Step 3 of Deledio requires us to form an opinion as to whether the hypothesis advanced by Mrs Coleman is reasonable and that there is material which “points to”: (i) at least one of the minimum factors listed in the SoP being present and (ii) at least one of those factors being “related to” Mr Coleman’s service within the meaning of s 196B(14) of the Act. As emphasised by the authorities, our task at this stage is to decide whether “… the material points to some fact or facts (“the raised facts”) which support the hypothesis [advanced on behalf of Mrs Coleman]”: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ. There must be material that points to each element of the hypothesis: Repatriation Commission v Hill (2002) 69 ALD 581 at 596. Fact finding at this stage is impermissible.
11. Clause 5 of SoP No 28 requires that at least one of the four factors listed in cl 5(a)‑(d) must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Coleman’s death from malignant neoplasm of the prostate with the circumstances of his operational service. Mrs Coleman contends that the material points to the presence of one of those factors, namely cl 5(c), which provides:
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;
12. “Animal fat” is defined in cl 8 of SoP No 28 to mean 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;
Mr Coleman’s diet
13. Before considering whether there is “material” that points to each element of the advanced hypothesis, it is convenient to look at the material before us about Mr Coleman’s diet before, during and after service. In addition to evidence given by Mrs Coleman, consultant dieticians and nutritionists, Drs Dianne Volker and David Mann, prepared reports for these proceedings and each gave oral evidence. They were asked, among other things, to estimate the amount of animal fat and kilojoules consumed by Mr Coleman before, during and after service.
Pre-service diet
14. Drs Volker and Mann agree that the Australian National Dietary Survey provides a reasonably reliable measure of Mr Coleman pre-service diet. (Commonwealth Advisory Council on Nutrition, Final Report of the Advisory Council on Nutrition, APGS, Canberra, 1938). Using that information, Dr Volker estimated that Mr Coleman’s pre-service average daily animal fat and energy consumption was 126 g and 15.72 mJ respectively. Dr Mann arrived at slightly lower figures — 116.9 g (animal fat) and 14.07 mJ (energy). This discrepancy arose because each used different survey periods. Dr Volker used the survey period, 1936-1938; and Dr Mann used the survey period, 1938 to 1939.
Service diet
15. Drs Volker and Mann agree that Mr Coleman’s animal fat intake during service was significantly higher than it had been before enlistment especially during the eight months he served in Papua New Guinea (PNG). Each relied on a number of reports prepared by Dr Ruth English about the level of animal fat in the diet provided to the Australian Armed Forces during World War II. It was agreed that throughout his period of service, Mr Coleman was provided with three different types of diet, with varying amounts of animal fat and kilojoules which they estimated to be:
Ration Scale C: 118.2 g (Dr Volker); 100.5 g (Dr Mann)
Papua New Guinea and the Pacific Ration scale: 125.8 g (Dr Volker); 113.2 g (Dr Mann)
(Amended) Papua New Guinea and the Pacific Ration scale: 146.4 g (Dr Volker); 131.8 g (Dr Mann)
PNG 24-hour ration pack: 147 g/day (This estimate was made by Dr Mann and was based on a report prepared by Writeway Research Service, 10 November 2010)
16. Mr Coleman served in PNG from August 1943 to May 1944. At the commencement of his service he received the “PNG ration scale” and from February 1944, the “amended PNG ration scale”. These diets had the highest amount of animal fat and energy of any of the rations provided to Mr Coleman.
Post-service diet
17. A critical point of difference between the experts is whether it is possible to reliably estimate the amount of animal fat consumed by Mr Coleman throughout the subject period, 1981 to 1986. Dr Volker is of the opinion that it is possible to do so; Dr Mann disagrees.
18. According to Dr Volker, throughout the subject period, Mr Coleman’s average daily animal fat intake and energy consumption were 179 g and 15.6 mJ, respectively. Applying those figures to her estimates of Mr Coleman’s pre-service diet, Dr Volker concluded that his level of animal fat consumption had increased by 41.6 per cent. In preparing those estimates, Dr Volker relied on a food diary prepared for the purpose of these proceedings by Mrs Coleman in February 2011, which set out her recollection of her husband’s diet during a notional seven day period, in 1981 to 1986 (the February diary). Dr Mann also made estimates based on the information and in addition made estimates based on information obtained from Mrs Coleman during a phone interview. They arrived at the following estimates:
Estimated daily animal fat and energy consumed by Mr Coleman in 1981 to 1986
February diary
Interview conducted by Dr Mann
Dr Volker
178.5 g (animal fat)
15.6 mJ (energy)
N/A
Dr Mann
248 g
19.02 mJ (energy)
237 g
18.33 mJ (energy)
19. We will return to examine the basis for discrepancies in these figures.
20. The experts used a common methodology to test the validity of the information contained in the February diary, namely a four-step validation process used in similar proceedings before the AAT (“the validation method”). The validation method involved:
1. Checking to see that foods not available at the time for which the diet was reported are not included.
2. Checking the extent to which the reported daily eating program reflects the likely intake according to the relevant available food frequency data.
3. Assessing the veteran’s energy intake from the reported daily eating pattern against an estimate of the veteran’s physiological requirements based on the veteran’s body mass ratio brackets (BMR) for age and a factor for the veteran’s activity level.
4. Assessing the effect, if any of the manner of administration of the questionnaire.
21. Dr Volker and Mann agree that the above method provides an appropriate basis to assess the reliability of Mrs Coleman’s recollection about her husband’s diet.
22. Dr Volker concluded that her estimates of Mr Coleman’s animal fat and energy consumption were validated by each of the above four steps. While Dr Mann agreed that the February diet was validated by Steps 1, 2 and 4 he concluded that it could not be validated by Step 3 and was therefore unreliable. In his opinion, Step 3 revealed that had Mr Coleman consumed the types and amount of food recorded in the February diary he would have experienced significant weight gain — an outcome at odds with Mrs Coleman’s account that he remained slim all his life.
Mrs Coleman’s evidence
23. Mrs Coleman testified that her husband, whom she had known as a child, was very small and thin and grew late for his age. She recalled being told by him that his family was very poor because a large part of their income was spent on treating his mother’s multiple sclerosis. She also recalled being told that he ate dripping on bread or nasturtium leaves as a child.
24. Mr and Mrs Coleman married about 12 months after he returned from service. She testified that throughout their married life he had a very healthy appetite and ate large portions of food and never put on weight. She also claimed that he loved to eat bacon, fried eggs and steak and its surrounding fat. She claimed that he consumed a lot of milk and other dairy products each day.
25. Mrs Coleman recalled that her husband hated the food he ate during service, especially curry and bully beef.
26. According to Mrs Coleman, she prepared most of her husband’s meals and they rarely ate out. She recalled that her husband’s diet changed little throughout the post-war period. She said she prepared meals she knew he liked or requested or told her to make. She claimed that he told her if he did not like particular meals and she would not serve them again.
27. She testified that until diagnosed with cancer her husband had always been a very active man.
is there material that points to the date of clinical onset?
28. It is agreed that there is material that points to the clinical onset of Mr Coleman’s malignant neoplasm of the prostate occurring in June 2006.
is there material that points to an increased level of fat consumption post-service?
29. While the Commission contends that Dr Volker’s opinion about Mr Coleman’s level of fat consumption in the relevant period is unreliable, it does not dispute that it constitutes material that points to the requisite increase in consumption throughout the subject period.
30. Having regard to all of the material about Mr Coleman’s pre-war, on-service and post-war animal fat consumption, we are of the opinion that it points to an increase in Mr Coleman’s daily animal fat consumption of at least 40%, and to at least 50 g/day, throughout the period 1981 to 1986, as required by factor 5(c) of SoP No 28.
Is there material that points to Mr Coleman’s increased level of fat consumption being “related to” service?
31. Mrs Coleman asserts, and the Commission disputes, that there is material that points to factor 5(c) of SoP No 28 being “related to” or “being contributed to, in a material degree” by Mr Coleman’s operational service (s 196B(14)(d)). The Commission contends that Dr Volker’s opinion is, at best, speculative and neither constitutes “material”, nor supports a reasonable hypothesis.
Does Dr Volker’s opinion of a link between Mr Coleman’s service and his post-service diet constitute “material”?
32. To answer this question, is necessary to examine the expert evidence in some detail.
33. In Dr Volker’s opinion, Mr Coleman’s service contributed to his post-service increased level of animal fat consumption as it:
(1) Caused Mr Coleman to consume a diet high in animal fat for a continuous period
34. Dr Volker pointed out that, during service in PNG, especially when on the amended PNG diet, Mr Coleman’s level of fat intake was significantly higher than before enlistment and throughout the balance of his service. Furthermore, she contended that it was “significantly higher” than the average Australian civilian diet at the time. She opined that this sustained exposure to a high-fat diet resulted in Mr Coleman associating a diet high in animal fat with flavoursome food and a feeling of satiety, which in turn contributed to him developing and maintaining a “strong desire” to eat a diet high in animal fat. Animal fat, she contended, was both flavoursome and a vehicle for flavour. She opined that exposure to a diet high in animal fat for a continuous period of at least three months was sufficient for a person to develop a lifelong preference for a diet of that type. It was also relevant, according to Dr Volker, that Mr Coleman was exposed to this type of diet while still a relatively young man, before his food preferences had become entrenched.
35. Dr Volker did not resile from this opinion when taken to material that indicated that, prior to enlistment, Mr Coleman had consumed foods rich in animal fat such as dripping and roast lamb dinners. In her opinion, it was continuous, not occasional, exposure to a high-fat diet that had the ability to influence dietary preferences.
(2) Caused Mr Coleman to have insufficient food
36. Dr Volker pointed out that Ration Scale C was significantly lower in kilojoules and animal fat content than his PNG and pre-service diets. She was of the opinion that that Mr Coleman was probably hungry most of the time while on Ration Scale C and that this would have been a factor influencing his desire to satisfy his hunger through high-fat foods on return from service.
(3) Caused Mr Coleman to be deprived of familiar comfort foods
37. Dr Volker was of the opinion that Mr Coleman would have been deprived of simple and familiar comfort foods during service, which she believed would have been mainly dairy foods. This deprivation, she opined, would have resulted in Mr Coleman seeking out these foods post-service.
38. According to Dr Volker, the first of these three factors of itself would have been sufficient to contribute to Mr Coleman’s increased level of animal fat consumption post-service. She stated that her opinion about the link between Mr Coleman’s exposure to a high-fat diet and lifelong food preferences was supported by her clinical experience and the literature and studies referred to in her report. She acknowledged that a number of factors including greater affluence, increased availability of food, and lifestyle and dietary changes relating to married life probably influenced Mr Coleman’s choice of post-service diet but nonetheless concluded that service was “undoubtedly” also a factor.
39. Dr Mann thought that the link posited by Dr Volker between Mr Coleman’s exposure to the high-fat PNG diet and a lifelong preference for a diet high in animal fat to be “extremely tenuous” and “highly speculative”. In support, he cited a report prepared by psychologist Prof J Kennardy, who concluded that there was insufficient evidence to demonstrate “an addictive model of fat over-consumption”. Dr Mann pointed out that while some studies indicated that rats could develop “addictive behaviours” after eating high fat foods, there is “no definitive proof” that these results could be extrapolated in respect of humans. He stated that in a “mini literature review” he conducted last year, he was unable to find any support for the proposition that a brief period of exposure to high-fat foods could influence future diet preferences in humans.
40. In Dr Mann’s opinion numerous factors determine a person’s level of animal fat consumption. In oral evidence, he said that Mr Coleman’s level of fat consumption during service was not the only or main cause of his relatively high levels of fat consumption post-service but it was “definitely a probability that it would be a factor”.
Consideration
41. The Full Court of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 (at 533), cited with approval the following passage from the decision of the Veterans’ Review Board in Stacey, 26 June 1985, unreported, which addressed the meaning of the phrase “a reasonable hypothesis”:
[T]o be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact...
42. The High Court in Bushell adopted those observations and also observed at 414:
… a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”. [footnotes omitted]
43. In Bull v Repatriation Commission (2001) 66 ALD 271, Emmett and Allsop JJ observed at [18]:
It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or not tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis … [emphasis in original]
44. With those principles in mind, “after consideration of the whole of the material”, we must form an opinion about whether the material before us raises a reasonable hypothesis connecting factor 5(c) of SoP No 28 with the circumstances of Mr Coleman’s service. As noted by Allsop J in Cameron v Repatriation Commission (2003) 77 ALD 81:
[42] The dividing line between impermissible fact finding and permissible (indeed mandated) assessment of all the material, weighing it and concluding whether or not, as a whole, it points to the posited reasonable hypothesis, is not necessarily easy.
45. The Commission contends that the opinion of Dr Volker at best “leaves open” the possibility that Mr Coleman’s service post-war diet was related to service.
46. For present purposes, we will consider whether the first of the factors nominated by Dr Volker, namely Mr Coleman’s exposure to the “amended PNG diet”, could be said to support a reasonable hypothesis. That opinion rests on the following assumptions:
·In the post-war period Mr Coleman ate a diet high in animal fat because he had a preference for this type of diet; and
·A contributing factor to the development and maintenance of that preference was his exposure to a diet rich in animal fat during his service in PNG.
47. In our view, there is material to support each of these propositions. At this stage we are not concerned with the sufficiency of this material or whether any assumed facts are proven.
48. The first proposition rests on the assumption that, post service, Mr Coleman enjoyed and sought out a diet high in animal fat. Mrs Coleman testified that she was aware from her own observations and comments made by her husband that he enjoyed full-fat dairy products and meat, including cuts with “the fat on” — foods with a high level of animal fat. Her testimony makes plain that she was largely responsible for meal preparation and prepared meals her husband requested or that she knew he would enjoy. The information contained in the February diary reveals a diet rich in animal fat which, according to Mrs Coleman, had remained basically unchanged throughout their married life.
49. The second proposition rests on the assumption that Mr Coleman developed a preference for a diet rich in animal fat as a consequence of the high-fat diet consumed in PNG. There is material that points to the diet provided to Mr Coleman while in PNG, especially throughout February to May 1944, being relatively high in animal fat. Dr Volker said that her opinion — that sustained consumption even for a relatively short period was sufficient for a relatively young man to develop a lifelong preference for a diet rich in animal fat — was based on her own clinical experience and the studies cited in her report. While Dr Mann was unaware of any studies that supported such a link, he did not challenge those cited by Dr Volker. While in his report he stated that the link posited between Mr Coleman’s on-service consumption of animal fats and post-service increase was “extremely tenuous”, in oral evidence he conceded it could have been a factor.
50. As the Commission correctly points out, there is no direct evidence that Mr Coleman developed a lifelong preference for foods high in animal fat as a result of the PNG diet. Dr Volker’s qualifications to offer an opinion on the factors that contributed to Mr Coleman’s increased level of fat consumption were not challenged. In our opinion, there is some material to support each of the assumptions on which Dr Volker’s opinion was based. It may be that those facts ultimately cannot be proved or that the opinion expressed by Dr Mann in his written report (which the Commission submits more accurately reflects his opinion than that expressed in oral evidence) is to be preferred. This, however, does not render unreasonable the hypothesis of a link between Mr Coleman’s service and his post-war diet.
51. Given Dr Volker’s opinion that Mr Coleman’s exposure to the high-fat PNG diet was of itself sufficient for him to develop a life-long preference for a high-fat diet, it is unnecessary to consider the other factors she nominated.
52. We are of the opinion that the material before us raises a reasonable hypothesis connecting factor 5(c) of SoP No 28 with the circumstances of Mr Coleman’s service.
Can we be satisfied beyond reasonable doubt that Mr Coleman’s death was not war-caused?
53. Being satisfied that the advanced hypothesis is reasonable, we must determine that Mr Coleman’s death was “war-caused” unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1) of the Act. As the High Court explained in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, by the operation of s 120(1), a 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, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
54. Neither party bears an evidentiary onus: s 120(6) of the Act.
55. The Commission contends that the following facts on which the advanced hypothesis rests are disproved beyond reasonable doubt:
That Mr Coleman’s level of animal fat consumption throughout 1981 to 1986 was at least 15.6 mJ per day
That the purported increase in fat consumption during the subject period was related to service.
level of fat consumed in the subject period
56. The Commission contends that the February diary, on which Dr Volker’s estimates of Mr Coleman’s level of animal fat consumption throughout the subject period is based, is unreliable, pointing to the conflicting history given by Mrs Coleman to Dr Mann. Furthermore, the Commission argues that Dr Mann’s analysis establishes that even if the February diary was accepted as reliable, Mr Coleman’s weight would have increased throughout the subject period. There is no evidence of this occurring. Mrs Coleman’s evidence is that Mr Coleman remained slim and did not put on significant weight.
Reliability of Dr Volker’s estimate of Mr Coleman’s level of fat consumption throughout 1981 to 1986
57. The only evidence about what Mr Coleman ate throughout the subject period is that provided by his wife. Apart from the history taken by Dr Mann, Mrs Coleman’s claim that the information recorded in the February diary accurately reflects what her husband ate in a notional seven-day period during 1981 to 1986, is uncontradicted. In oral evidence, she disputed parts of the history taken by Dr Mann. The discrepancies between that history and the February diary are relatively minor and, in any event, do not disprove to the requisite standard that the February diary is unreliable.
58. The reliability of the February diary is also challenged on the basis of Dr Mann’s opinion that it was invalidated by Step 3. Set out at paragraph [20] of these Reasons, in summary, this step involves comparing a person’s actual energy intake with their theoretical energy requirements. The latter is calculated according to a formula based on the person’s body mass ratio (BMR), age and physical activity level, among other things. If the actual energy consumed by a person exceeds their theoretical energy requirements, they are likely to gain weight; conversely if, a person’s actual energy consumption is less than their theoretical energy requirements, they are likely to lose weight. Applying Step 3 to the information contained in the February diary, Dr Volker estimated Mr Coleman’s actual daily energy intake to be 15.6 mJ and his theoretical energy requirement to be between 12.8 mJ to 15.6 mJ after applying the so-called “Warwick correction” a 10 per cent co-efficient applied to take into account variations between individuals. Dr Mann, on the other hand, estimated Mr Coleman’s daily actual energy consumption to be 18.33 mJ and his theoretical energy requirement to be 16.3 mJ.
59. Even when using the same information, namely the February diary, Drs Mann and Volker reached different estimates about Mr Coleman’s actual energy consumption. In calculating the kilojoule and animal fat component of the foods listed in the February diary, Dr Volker used the table set out in Attachment 3 to her report, namely “Queensland Group action: Table of nutrient values and serving sizes, AGPS, Canberra, 1999”. Dr Mann on the other hand used “Foodworks, Xyris 2009”, a software program, prepared by Food Standards Australia New Zealand. Each asserted that the table they used was appropriate and gave reasons for their opinion. Dr Mann was unfamiliar with the table used by Dr Volker. Dr Volker stated that Xyris 2009 was unreliable because it was based on 2009 serving sizes and foods.
60. The disparity in relation to Mr Coleman’s actual energy consumption is apparently attributable to the use of different conversion tables. It may be, as Dr Mann contends, that the table he used is superior but, on what is before us, we could not be satisfied to the requisite standard that the one employed by Dr Volker rendered her estimates unreliable.
61. With respect to the differing estimates concerning theoretical energy requirements, we note that the estimate arrived at by Dr Mann (18.33 mJ) is slightly higher than the upper level of the range as estimated by Dr Volker (15.6mJ). This discrepancy would appear to be the result of each using a slightly different version of the “Schofield equation” and Dr Volker’s use of the so-called “Warwick correction”. We are not persuaded that the approach employed by Dr Mann disproves beyond reasonable doubt Dr Volker’s estimate of Mr Coleman’s actual or theoretical energy requirements throughout the subject period.
62. In the interests of completeness, we note that the Commission challenges Dr Volker’s estimate of Mr Coleman’s theoretical energy requirements during service on the basis that in calculating that figure she assumed that his physical activity level during that period was “light”. This, it is argued, is irreconcilable with her finding that Mr Coleman’s physical activity level during the subject period was “moderate” (an assumption also used by Dr Mann). Even if established that Dr Volker erred in her assumption about Mr Coleman’s physical activity level during service, this does not disprove the relevant part of the hypothesis, namely Mr Coleman’s post-war level of energy and fat consumption.
63. On what is before us, we could not be satisfied beyond reasonable doubt that Mrs Coleman’s account of Mr Coleman’s diet for the period 1981 to 1986 recorded in the February diary, is unreliable. Nor could we be satisfied to the requisite standard that Dr Volker’s estimate of Mr Coleman’s level of energy, and hence animal fat consumption throughout the subject period, is unreliable.
increased level of fat consumption and service
64. The final issue to be determined is whether it has been disproved beyond reasonable doubt that the relatively high animal fat diet consumed by Mr Coleman during the latter part of his service in PNG contributed to his increased level of fat consumption during the subject period.
65. Neither of the factual assumptions on which Dr Volker’s opinion is based have been disproved beyond reasonable doubt. Even if, as the Commission contends, the concession made by Dr Mann in oral evidence — that short-term exposure to a high-fat diet would be a factor shaping lifelong dietary preferences — is not reflective of his “true opinion”, his report could not be said to prove beyond reasonable doubt that Mr Coleman’s service diet was not a factor that contributed to his post-service diet. While arguable that his opinion is to be preferred, it neither disproves Dr Volker’s opinion, nor establishes his, to the requisite standard.
Conclusion
66. The kind of death suffered by Mr Coleman was malignant neoplasm of the prostate. We are satisfied that there is material pointing to (i) an increase in Mr Coleman’s level of animal fat consumption (from pre-service levels) by at least 40% and to at least 50 g/day for the period 1981 to 1986; and (ii) Mr Coleman’s service contributing, in a material degree, to that increase and level of animal fat consumption. We are of the opinion that a reasonable hypothesis has been advanced that Mr Coleman’s requisite increase in animal fat consumption throughout the subject period is “related to” service. We are not satisfied beyond reasonable doubt that Mr Coleman’s death was not war-caused. It follows that Mr Coleman’s death was war-caused.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ..............[sgd]..................
Associate to Senior Member A K BrittonDate/s of Hearing 8 and 9 August 2011
Date of Decision 1 September 2011
Counsel for the Applicant Mr S Feredoes
Solicitor for the Applicant Mr A Kemp, Kemp & Co. LawyersRepresentative for the Respondent Mr N Bunn, Department of Veterans' Affairs
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