Colin King and Repatriation Commission
[2012] AATA 725
•23 October 2012
[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 82Repatriation 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
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.
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.
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.
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
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.
We have to determine whether Mr King’s prostate cancer is related to his service.
THE LAW
By s 120(1) of the Veterans’ Entitlements Act1986 (the Act), we must determine that Mr King’s prostate cancer and erectile dysfunction are war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting his conditions with his service: s 120(3).
Whether a reasonable hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time: s 120A.
The steps to be followed in determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must:
(i)determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant SOP;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SOP; and
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s incapacity did not arise from a war-caused injury.
The material will raise a reasonable hypothesis if it points to “some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
STATEMENTS OF PRINCIPLES
The relevant SOPs in Mr King’s case are No 28 of 2005 (Malignant neoplasm of the prostate) and No 17 of 2005 (Erectile dysfunction). In both SOPs, clause 4 provides that at least one of the factors set out in clause 5 must be related to the relevant service rendered by the veteran. Relevant service includes operational service: cl 8.
Mr King relies on the following factors in each SOP:
Malignant neoplasm of the prostate: SOP No 28 of 2005
Factor 5(c)
increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.
Animal fat means fat contained in or derived from:
(a) meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds.
Erectile dysfunction: SOP No 17 of 2005
Factor 5(j)
undergoing a course of therapeutic radiation to the lower abdomen, pelvis, penis or perineal region within the fifteen years immediately before the clinical onset of erectile dysfunction.
Factor 5(w)
having a malignant neoplasm of the reproductive organs at the time of the clinical onset of erectile dysfunction.
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”.
The decision of the Veterans’ Review Board shows that Mrs King gave evidence that she regularly complained to the Orderly Officer at her mess about fried eggs “dripping with fat” and that this was typical of food served in British messes. She told the Board she still served the same type of English food at home, but without as much fat, as her husband had become used to that style of cooking.
Mr King gave evidence that his diet has remained much the same since leaving the RAAF and, if anything, easier access to food and greater choice means he eats more than he used to. His wife does all the cooking but they discuss what they will have and he lets her know what he likes and does not like.
The respondent contends that Mr King’s written statements should be approached with caution and points to what is plainly an error in his more recent statement and to some discrepancies between his written and oral evidence. The respondent submits that, where there are discrepancies, we should prefer Mr King’s oral evidence.
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:
Pre-service
129 gms/day
Operational service (in Singapore)
212 gms/day
Post service
205 gms/day
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.
In his written report, Dr Mann assessed Mr King’s consumption of animal fat as follows:
34. Pre-service
35. 77 gms/day
On service (1950-1955)
100.5gms/day
Operational service (in Singapore)
118.5 gms/day
Post service
119 gms/day
The Tribunal asked Dr Volker and Dr Mann to explain how they arrived at very different figures for animal fat consumed per day. After some discussion as to whether they had measured animal fat or saturated fat only, Dr Mann revised his figures as follows:
Pre-service
144 gms/day
On service (1950-1955)
100 gms/day
Operational service (in Singapore)
286 gms/day
Post service
238 gms/day
On this basis, Dr Mann assessed that Mr King’s consumption of animal fat increased by 54% and by 94 gms per day from pre-service to post-service.
Dr Volker had no argument with Dr Mann’s revised figures but saw no reason to alter her own.
The respondent does not dispute, and we find, that there is material pointing to each of the elements of Factor 5(c) being the required percentage increase in consumption of animal fat, the increase in grams per day, and the maintenance of that intake for the relevant period and within the relevant time.
Does the material point to Mr King’s increased consumption of animal fat being related to his operational service?
Dr Volker gave evidence that, in her view, Mr King’s exposure to the higher fat diet in the RAF mess in Singapore led to his lifelong preference for a much higher level of animal fat in his diet. She referred to research suggesting that consumption of a lower fat diet followed by a higher fat diet can influence a “gustatory adaptation” to the high fat diet. She gave evidence that this adaptation can occur in as little as four weeks following a rapid escalation in animal fat intake and can develop into a lifelong habit.
In support of this view, Dr Volker relies on research by Stewart, JE and Keast, RSJ, “Recent fat intake modulates taste sensitivity in lean and overweight subjects” (2011) International Journal of Obesity, 1. She referred to the work of another researcher who suggests there is no evidence of an “addiction to fat”. However, she said, she did not suggest that Mr King developed an addiction to fat, rather that he was exposed on operational service to a very wide range of “core foods”, the effect of which was a “gustatory adaption” to a higher level of fat in his eating pattern and a continued choice of high fat foods.
Dr Mann did not disagree with Dr Volker’s assessment of the range and type of food served to Mr King at the RAF mess and later by his wife. He used records from the RAF Museum of meals served at the RAF mess in Singapore. Dr Volker used a questionnaire to determine Mr King’s diet while on operational service.
However, Dr Mann did not agree with the notion of “gustatory adaption” to animal fat leading to a lifelong preference for fatty foods. He gave evidence that, the Stewart and Keast research relied on by Dr Volker was based on too small a sample and failed to take into account the complex nature of food preferences and the role of factors including genetic disposition, ethnicity, sex and age, as well as the kind of animal fat consumed. For instance, he said, a preference for ice cream related to the taste for sugar rather than for the undetectable taste of animal fat.
Dr Mann cited a number of studies (including Bartoshuk, LM et al, “Psychophysics of sweet and fat perception in obesity: problems, solutions and new perspectives” (2006) 361 Philos Trans R Soc Lond B Bio Sci 1137 and Mela, DJ, “Eating behaviour, food preferences and dietary intake in relation to obesity and body-weight status” (1996) 55 Pro Nutri Soc 803) in support of his view that any link between Mr King’s “brief exposure to on-service animal fat” and “a lifetime of increased animal fat intake” is “extremely tenuous” and “highly speculative”.
The respondent contends that the material before the Tribunal points to no more than a temporal connection between Mr King’s increased fat consumption and his operational service, and not to any causal connection. The respondent submits that Mr King progressed naturally from meagre rations at home, to better food on the bases in Australia, to even better food in the RAF; that nothing about the circumstances of his operational service caused or compelled him to eat more fat.
By way of examples of the kinds of circumstances that might cause or compel such change, the respondent referred us to the decision of the Tribunal (O’Connor J presiding) in Re Towle and Repatriation Commission [1999] AATA 72 where the Tribunal said at [60]:
The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods.
The meaning of “related to service”
By s 196B(14) of the Act, a factor causing, or contributing to, an injury or disease is related to service rendered by a person if:
(a)…
(b)it arose out of, or was attributable to, that service; or
(c)…
(d)it was contributed to in a material degree by, or was aggravated by, that service;
(e)…
(f)…
(g)…
In Gilkinson v Repatriation Commission [2011] FCAFC 133, the Full Federal Court considered the relationship between subss 196B(14)(b) and (d) including whether subs (b) requires operational service to be the dominant or effective cause of the factor meaning it was narrower in operation than subs (d). The Court held that subs (d) is not a broader test that necessarily subsumes subs (b). That determination required consideration of the expressions “arose out of” and “attributable to”.
Perram J at [6] said:
Judicial interpretation of ‘arisen out of’ and ‘attributable to’. These expressions have previously been interpreted by this Court in a way which is largely similar to their ordinary meaning. For example, in Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140 (FC) this Court concluded that the expression ‘has arisen out of’ required a ‘consequential relationship of the incapacity or death with the service out of which it is said to arise’ and in that context concluded that ‘[t]he Act does not say death which is “caused by” or “results from” his war service – phrases which might connote a proximate causal relationship. The expression “arisen out of” is satisfied if some less proximate causal [relationship] is established’ (at 150). Of the phrase ‘attributable to’ the Court thought that this ‘involves an element of causation’ but that ‘[t]he cause need not be the sole or the dominant cause: it is sufficient to show “attributability” of the cause is one of a number of causes provided it is a contributing cause’. The boundaries of this might be indistinct but the Court thought that ‘[t]hough causation seems to be required, a “but for” cause will suffice’ (at 151).
At [38] Nicholas and Robertson JJ said:
[In] Law … the Full Court at 150-151 considered the expressions “has arisen out of” and “is attributable to his war service” then to be found in s 101(1)(b) of the Repatriation Act 1920. As to the former of these expressions, “has arisen out of”, the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause. Their Honours said that the expression “arisen out of” was different to “caused by” or “results from” and was satisfied if some less proximate causal relationship was established other than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description “arising out of”. As to the expression “is attributable to” their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributory cause.
The meaning of “contributed to in a material degree” was considered, in the context of workers compensation legislation, in Comcare v Sahu-Khan [2007] FCA 15. Finn J noted that the Shorter Oxford English Dictionary defined “materially” as “In a material degree; substantially, considerably”.
At [13] he said “the inclusion of the word “material” imposes an “evaluative threshold” below which a causal connection may be disregarded”.
At [16] Finn J said “material” requires a stronger causal relationship between the employment and the ailment than the expression “contributing factor” in earlier legislation; it requires an evaluation of all relevant contributing factors to determining whether or not the employee’s employment contributed materially to the ailment and is a matter of fact and degree in the given case.
Consideration
By Dr Volker’s estimate, Mr King’s consumption of animal fat increased by 64% once he was in Singapore. By Dr Mann’s estimate, it increased by 99% (from his pre-service level) and by as much as 186% (from his on-service level). Both gave evidence that the increase would have occurred within the first 12 months of his operational service.
Although Dr Mann disagreed with Dr Volker as to any connection between Mr King’s operational service and his expressed lifelong preference for fatty foods, he did not suggest an alternative explanation for the very large and sustained increase in his consumption from that time on.
Mr King’s evidence was that, at least for the first 12 months in Singapore, his only choice was to eat the RAF meals. They were very different from what he had at home, and different from what he had been served on the RAAF bases. He liked the food very much. He developed a liking for that kind of food which continued all his life. His wife cooked more or less the same food all his life.
We are satisfied that the material before the Tribunal points to more than a mere temporal connection between Mr King’s operational service and the change in his dietary habits to a preference for foods of a kind that meant his consumption of animal fat increased. We are satisfied that the material points to the conclusion that it arose out of his operational service (s 196B(14)(b)). If we are wrong about that, we are satisfied that it also points to Mr King’s operational service having contributed in a material degree to his increased consumption (s 196B(14)(d)).
ARE WE SATISFIED BEYOND REASONABLE DOUBT THAT MR KING’S PROSTATE CANCER WAS NOT WAR-CAUSED?
It is only at this stage of our deliberations that fact-finding is permitted.
The respondent contends that we should be satisfied beyond reasonable doubt that Mr King’s prostate cancer is not war-caused.
Firstly, the respondent says, Mr King’s evidence is unreliable. It is true that there are some inconsistences in his evidence and at least one statement in his latest written statement is plainly wrong. His memory is poor: he could not recall, for example, what sort of fat there was on the meat in the RAF, or whether he cut it off or not. The respondent submits that, had he developed the liking for fat that he claimed, Mr King would have remembered both.
Given the time that has passed, it is not surprising that Mr King’s memory might be faulty. However, the difficulties with his evidence are not such that we could be satisfied beyond reasonable doubt of his evidence generally.
We are not satisfied beyond reasonable doubt that the connection between Mr King’s increased animal fat consumption and his operational service was merely temporal.
Dr Mann and Dr Volker clearly disagree about the effect, if any, of “gustatory adaption”. However, Dr Mann has not offered an explanation for the pronounced increase in Mr King’s animal fat consumption within the first 12 months of his operational service, by an even greater percentage than Dr Volker found. Dr Volker’s evidence about “gustatory adaptation” might be founded on contested evidence but we are not satisfied beyond reasonable doubt that she is not correct.
Nor are we satisfied beyond reasonable doubt that the increase in Mr King’s consumption was a natural progression over time that would have occurred regardless of his service. Dr Mann’s figures suggest otherwise. He calculated that Mr King’s consumption of animal fat actually went down once he enlisted, something he could not explain but which he said he had observed in other veterans.
The respondent submits, and we agree, that reports prepared by the Writeway Research Service Pty Ltd do not assist because they were based on information from sample menus from 1964 to 1967, after Mr King’s operational service.
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.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr I Alexander. .........[sgd]...............................................................
Associate
Dated 23 October 2012
Date(s) of hearing 15 and 16 October 2012 Counsel for the Applicant Mr S Feredoes Solicitors for the Applicant Kemp & Co Lawyers Counsel for the Respondent Ms R Henderson Solicitors for the Respondent Australian Government Solicitor
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