Colin King and Repatriation Commission

Case [2012] AATA 725

[2012] AATA 725  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2009/4845

Re

Colin King

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey and Dr I Alexander
Date 23 October 2012
Place Sydney

The Tribunal sets aside the decision under review and substitutes for it the decision that Mr King’s prostate cancer and erectile dysfunction are war-caused and that he is entitled to a pension with effect from 15 February 2008.

........[sgd]................................................................

Senior Member J F Toohey and Dr I Alexander

CATCHWORDS

VETERANS’ ENTITLEMENTS – prostate cancer – erectile dysfunction – hypothesis that veteran’s operational service led to change in diet and to continuing high fat intake leading to prostate cancer – whether reasonable hypothesis raised linking veteran’s prostate cancer to operational service – no dispute that increase in animal fat consumption satisfied relevant SOP factor – whether related to service – whether more than a temporal link – decision under review set aside

LEGISLATION

Veterans’ Entitlements Act 1986 ss 120, 120A, 196B(14)

CASES

Bull v Repatriation Commission [2001] FCA 1832

Bushell v Repatriation Commission (1992) 175 CLR 408 and 414
Comcare v Sahu-Khan [2007] FCA 15
East v Repatriation Commission (1987) 16 FCR 517
Gilkinson v Repatriation Commission [2011] FCAFC 133
Re Towle and Repatriation Commission [1999] AATA 72
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2002] FCAFC 192

SECONDARY MATERIALS

Repatriation Medical Authority, Statement of Principles concerning Erectile Dysfunction, Instrument No 17 of 2005

Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Prostate, Instrument No 28 of 2005

REASONS FOR DECISION

Senior Member J F Toohey and Dr I Alexander

23 October 2012

BACKGROUND

  1. Mr Colin King joined the Royal Australian Air Force (RAAF) as an apprentice in January 1950 when he was fifteen.  He served on bases in Wagga, Richmond and Canberra until September 1955.  He had operational service from October 1955 to May 1958.

  2. Mr King has a number of disabilities which the Repatriation Commission accepts are war-caused.  In August 2007, he was diagnosed with prostate cancer.  He contends that, as a result of his operational service, he developed a liking for foods with a high fat content that lasted all his life and led, in turn, to his prostate cancer.  Further that, as a result of radiotherapy, he developed erectile dysfunction. 

  3. On 14 September 2009, the Veterans’ Review Board determined that Mr King’s prostate cancer and consequent erectile dysfunction were not war-caused.  On 15 April 2011, the Administrative Appeals Tribunal (the Tribunal), constituted by the same members as presently, affirmed that decision.

  4. On 15 December 2011, the Federal Court set aside the Tribunal’s decision and remitted the matter for decision according to law either with, or without, the hearing of further evidence.

    THE ISSUE

  5. It is not in dispute that Mr King has prostate cancer and erectile dysfunction, or that his erectile dysfunction is directly attributable to the radiotherapy he underwent to treat his prostate cancer. 

  6. We have to determine whether Mr King’s…

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AGLC
Colin King and Repatriation Commission [2012] AATA 725
Case
[2012] AATA 725
Decision Date

CaseChat Overview and Summary

The case of Colin King and the Repatriation Commission involved a dispute over whether Mr King's prostate cancer and resulting erectile dysfunction were attributable to his service in the Australian military. The matter was adjudicated by the Tribunal, which was tasked with determining if there was a reasonable hypothesis linking Mr King's prostate cancer to his military service. The outcome of the case was that the Tribunal set aside the previous decision and determined that Mr King's prostate cancer and erectile dysfunction were indeed war-caused, entitling him to a pension.

The central legal issue before the Tribunal was whether the evidence presented established a reasonable hypothesis that Mr King's operational service led to an increase in his dietary animal fat intake, which in turn caused his prostate cancer. The Tribunal had to assess whether the evidence supported a hypothesis that went beyond mere speculation, and if so, whether this hypothesis was sufficient to establish a causal link between Mr King's service and his medical conditions. Additionally, the Tribunal needed to consider whether the increase in animal fat consumption was related to his service and not just a temporal coincidence.

The Tribunal found that while it was not in dispute that Mr King's consumption of animal fat increased significantly during and after his service, satisfying the relevant Standard of Proof (SOP) factor, this alone was not enough to establish a causal link. The Tribunal concluded that the hypothesis that Mr King's operational service led to a change in diet, resulting in high fat intake and subsequently causing his prostate cancer, was reasonable. The evidence, including expert testimony and Mr King's own account of his dietary habits during service, suggested that his service led to a significant and sustained increase in his animal fat intake. This increase was not merely coincidental but was linked to his service and the types of food available and consumed during that period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is not in dispute that Mr King’s erectile dysfunction was directly attributable to the radiotherapy that he underwent for his prostate cancer. If his prostate cancer is found to be war-caused, it will follow that so is his erectile dysfunction.MR KING’S EVIDENCE Since the last hearing before the Tribunal, Mr King has submitted a further written statement. It expands on his previous written statement and oral evidence but does not alter it substantially. He also gave oral evidence. Mr King lived at home with his parents until he enlisted in January 1950, one month short of his sixteenth birthday. Rationing was in force until 1949 and the family’s diet was fairly simple. Breakfast was usually porridge with milk and sugar, and toast with dripping; he rarely had eggs. A typical lunch was bread and dripping with cheese and tomato. They had meat, usually rabbit, for dinner once or twice a week, with boiled vegetables and bread and peanut butter. He would eat biscuits or cakes once a week. Ice cream was a special treat that he recalls eating only once or twice. From 1950 to 1955, Mr King ate the regular meals served on the bases to RAAF personnel. Although his memory is not good, he recalls having scrambled eggs for breakfast and ham for lunch at Wagga Wagga. There would be meat for dinner and sometimes biscuits after dinner. At Richmond, the food was better. Breakfast would be cereal, eggs, bacon and sausages. Lunch and dinner were similar to lunch at Wagga Wagga but “much better”. There were desserts but he could not remember what they were. At Canberra, meals were much the same as at Richmond. In October 1955, Mr King was posted to Singapore and served there until May 1958. He spent his first year at the base at Royal Air Force (RAF) Tengah. The RAAF did not have its own mess, and he and other Australians ate at the British RAF mess. Mr King gave evidence that there was “a major change” in the type of food served by the RAF from what he had been used to. He enjoyed the RAF meals over the “mundane” RAAF meals. The food was a lot fattier; it was greasier but also had more flavour. Bacon and eggs cooked in oil and “dripping with fat” were standard at breakfast. Lunch and dinner included sausages, mashed potatoes, toad-in-the-hole and steak. Fat was not trimmed from the meat and there were regularly second and third helpings. Whereas he did not commonly eat them before, he developed a liking for desserts such as custard and fruit with every meal, especially ice cream, which was readily available from a nearby ice cream factory; he would eat large quantities every day and still really enjoys it. In October 1956, one year into his operational service, Mr King married. His wife was serving in the Women’s Royal Army Cops in Singapore when they met. After they married, they lived off base but his diet was much the same as at the RAF base largely, it seems, because his wife was English. He continued having fatty meals; he would eat meat every night and always had ice cream. He continued going to the ice cream factory because he “loved it”.

Decision

Reasons for decision

We are not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr King’s prostate cancer – and, it follows, his erectile dysfunction – are not war-caused.CONCLUSION For the reasons set out above, we are satisfied, and find, that Mr King’s prostate cancer and erectile dysfunction are war-caused. We set aside the decision under review and substitute for it the decision that Mr King’s prostate cancer and erectile dysfunction are war-caused and that he is entitled to a pension with effect from 15 February 2008, being three months before the date of his application.

Ratio Decidendi

Legal Principle Established

Considered as a whole, Mr King’s written and oral evidence has remained largely consistent. His memory for details is poor but, to the extent that there are inconsistencies or that he was unable to recall details, we do not think this reflected adversely on his credit. IS A REASONABLE HYPOTHESIS RAISED CONNECTING MR KING’S PROSTATE CANCER WITH HIS OPERATIONAL SERVICE? More than a mere hypothesis is required before it can be said that a reasonable hypothesis is raised in any given case. As stated in East v Repatriation Commission (1987) 16 FCR 517 at 533: A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities. . A hypothesis will not be reasonable if it is “is obviously fanciful or impossible or not tenable or too remote or too tenuous”: East (above) at 532. It does not follow, however, merely because a hypothesis is “not obviously fanciful or not possible, or not incredible or tenable or not too remote or not too tenuous”, that it is reasonable. It must be more than merely plausible; it may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832 at [5]. A hypothesis will only be reasonable “if the material that raises it contains all of the essential elements prescribed by the SOP”: Repatriation Commission v Hill [2002] FCAFC 192 at [55]. Does the material point to the factor relied on? Evidence was given before the Tribunal by Dr Dianne Volker, an accredited practising dietician and nutritionist, and Dr David Mann an accredited dietician. Each assessed Mr King’s consumption of animal fat over the period from prior to his service to post-service and prepared a report of their findings. They gave oral evidence concurrently. In their written reports, Dr Volker and Dr Mann assessed the periods prior to Mr King’s operational service differently, used slightly different methodologies and arrived at different figures for grams of animal fat consumed each day. However, both concluded that his consumption of animal fat met the levels of increase specified in Factor 5(c) of the SOP over the relevant period. Dr Volker assessed Mr King’s consumption of animal fat as follows: On this basis, Dr Volker assessed that Mr King’s consumption of animal fat increased by 59% and by 76 gms per day from pre-service to post-service. Although there is no evidence of the date of clinical onset of Mr King’s prostate cancer (only the date of diagnosis), it is not in dispute that he maintained this increased consumption for at least five years in the 25 years before its clinical onset. Giving evidence before the Tribunal, Dr Volker said she did not assess the period from 1950 to 1955 separately from Mr King’s pre-service diet, firstly because she suspected the figure of 129 gms per day, which she based on evidence of community food patterns and food availability at the time, was well in excess of what he would have in fact consumed, given his “meagre” pre-service diet. Secondly, she thought his on-service consumption prior to operational service would have been similar to that of the general population based on available data.