Crust and Repatriation Commission
[2001] AATA 873
•2 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 873
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1687
VETERANS' APPEALS DIVISION )
Re NANCE ELEANOR CRUST
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member
Date2 October 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1687
)
VETERANS' APPEALS DIVISION )
Re: NANCE ELEANOR CRUST
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member
Date 2 October 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.the death of Allan Crust, deceased, was war-caused and the Applicant, NANCE ELEANOR CRUST, is entitled to pension consequent upon the death of the deceased as and from 16 August 1998.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Claim that death from Cancer of the Prostate was war-caused due to increase in dietary fat post service. Requirement for Respondent to negative raised facts beyond reasonable doubt.
Veterans' Entitlements Act 1986 – ss120 (1), (3) and (6); s120A
Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Deledio 83 FCA 82
Meehan v Repatriation Commission [2001] FCA 597
Rickaby v Repatriation Commission [2001] FCA 971
REASONS FOR DECISION
Senior Member M D Allen Dr M E C Thorpe, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 2 October 2001
Date of Decision 2 October 2001Counsel for Applicant Mr N Dawson
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/1687
By MR M.D. ALLEN, Senior Member;
Dr M.E.C. Thorpe, Member
CRUST and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 2 OCTOBER 2001
MR ALLEN: In this matter, pursuant to an application lodged with the respondent on 4 November 1999, the applicant sought review of a decision by the respondent, made 20 November 1988, that the death of the applicant's husband, Allen Crust, deceased, was not related to his war service. The deceased veteran had service in the south west pacific area during the second world war and died on 11 August 1998, the certified cause of death being hypercalcaemia for three weeks and metastatic carcinoma of the prostate for two years and eight months. In other words, the operative cause of death was cancer of the prostate.
As the deceased veteran had operational service, as that term is defined in the Veterans Entitlements Act (1986) as amended, the standard of proof in this matter is that laid down in subsections (1) and (3) of section 120 of the said Veterans Entitlements Act, namely that the Tribunal shall determine that the death of the deceased was war caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied beyond reasonable doubt if the material before the Tribunal does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the particular service rendered by him.
Section 120A then provides that a hypothesis connecting the death of the deceased with service will not be a reasonable hypothesis unless it conforms to a so-called statement of principle, in the circumstances where such a statement of principle has been determined. Subsection (6) of section 120 of the Veterans Entitlements Act provides that neither party to this review bears any onus of proof. In this matter a statement of principle has been issued by the Repatriation medical Authority in conformity with section 120A relating to cancer of the prostate, or as it prefers to term it, "malignant neoplasm of the prostate".
The instrument is number 191 of 1996. That instrument amended an earlier instrument which was number 95 and 1995 and both of them provide that one of the hypotheses which will link the death of a veteran with his service is:
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...by increasing animal fat consumption by at least 40 per cent and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
In this matter, the hypothesis contended for by the applicant was that prior to his enlistment in the RAAF and in particular prior to service in the south-west Pacific, the deceased's diet did not include a heavy consumption of animal fats. After his return from the south-west pacific area he had put on some 27 pounds in weight and had gained a taste for animal fats and this desire to partake animal fats continued until his death. The starting point of the law in this matter can be said to be the decision of the Repatriation Commission v Bey 79 FCR 364.
In that particular case, the Full Court of the federal Court said that the applications of subsections (1) and (3) of section 120 were as follows. Namely that the first step was to identify the hypothesis said to establish the causal link between the veteran's eligible war service and death. As pointed out by the Full Court, identifying the hypothesis is a question of fact. The next step is to determine whether the hypothesis is reasonable. As the Court said, the material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis and if the hypothesis can be regarded as reasonable, assuming the raised facts to be true.
In determining whether the hypothesis is reasonable, the decision maker must identify the facts said to point to it. The Court then said whether a hypothesis is reasonable is a question of fact. The matter was further discussed by another Full Court in Repatriation Commission v Deledio, 83 FCR 82. At page 97, dealing with the situation where there is an existence of so-called statement of principles, the Court said that the task of the Tribunal is as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the 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 has failed. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a statement of principle determined by the authority under subsections 196B(2) or (11). 3. If a statement of principles is in force, the tribunal must then form the opinion of 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 statement of principles. 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.
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©Auscript Pty Ltd 2001If 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 section 120(1), whether it is satisfied beyond reasonable doubt that the death was not war caused, or 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.
As was pointed out, in particular in recent cases following Deledio such as Rickaby v Repatriation Commission (2001) FCA 971, or Meehan v Repatriation Commission (2001) FCA 597, it is only at the fourth stage of the so-called Deledio process that the Tribunal is required to find facts. In this matter we have alluded to the hypothesis put forward by the applicant. There is evidence from the applicant herself as to the diet which the deceased had following service in the second world war. In particular at paragraph 11, her statement which is exhibit A2 in these proceedings, she says:
For dinner there was always plenty of vegetables baked in dripping or steamed in a steamer. Baked dinners, lamb, beef or pork, baked vegetables, potato, pumpkin, whole onions, beef steak, casseroles or stews, legs of lamb, lamb neck chops, fried sausages, rabbit cooked in oven basted with dripping to retain moisture, or a casserole in milk with bacon and onions, crumbed brains and bacon cooked in bacon drippings, milk rice pudding, stewed fruits with custard or ice cream jellies and ice cream, battered fish cooked in dripping.
There is also a statement by the deceased's sister, a Mrs Gwen Ritchie, which is exhibit A3 in these proceedings. In that statement she says, speaking of a period before the deceased enlisted in the RAAF, as follows:
For dinner my brother would commonly have plenty of fresh home grown vegetables. Meat was either boiled with the fat removed after being cooled or baked. We also had fresh creek fish, occasionally wild duck in season, eggs, rice, chicken and always fresh fruit. It is not possible for me to estimate the amounts of dairy products eaten by our family. All I can say is it was enough to keep the family healthy and that nothing was eaten in excess. I'm unable to estimate the amount of meat eaten by out family, other than to say that it was not a lot. Very little of the food that we ate at home was ever cooked in fat or butter or oil.
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From that, the applicant asked us to draw the conclusion that after a somewhat lean diet prior to enlistment, the applicant then post-war continued on with a diet which was rich in fats. Exhibit R2 in these proceedings is a report by a Mr Friderich, F-r-i-d-e-r-i-c-h, a consultant dietitian. In that report he says:
Mr Crust gained a significant amount of weight during military service. There is no doubt that he consumed many of the additional calories to cause this weight gain in the form of fat. However following military service his wife had the greatest influence on his food intake. It is clear from the interview with Mrs Crust that her husband had little control over meals served in the family home. it is also clear that the family continued to consume animals fats, even after healthier alternatives were available on information from family members.
The report continues:
In my opinion, Mr Crust did increase his animal fat intake after military service by greater than 40 per cent and over 70 grams per day, therefore meeting the requirements set out in the statement of principles concerning malignant neoplasm of the prostate, 5C. Based on the total evidence available it appears that there has been an increase in animal fat consumption by at least 40 per cent for at least 25 years before the clinical onset of malignant neoplasm of the prostate.
It would seem therefore that the template of the statement of principle has been complied with and certainly the material from the applicant and the deceased's sister shows that there was an increase in fats. The other part of the hypothesis however is more conjecture than evidence. All that is known regarding the deceased's diet whilst in the RAAF is that he returned from New Guinea heavier than when he went away. Nothing is known of what he did eat. One could only assume that as he was RAAF ground staff, his diet was immensely better than that of persons in the front line and in actual combat with the enemy.
It is difficult to ascertain how this would have inculcated in the deceased a habit of eating animal fats. Indeed looking at the evidence from the applicant, it seems to us that the deceased's diet post war was in effect really no different from the majority of the population in the immediate post war periods, particularly those persons of Anglo-Celtic descent. In the Administrative Appeals Tribunal decision of Towle v Repatriation Commission (2000) AATA 706, being a decision of a Tribunal of O'Connor J, Mr Way and Dr Lynch, Members, evidence was given by a dietitian, a Dr Canardy. Paragraph 30 of the decision in Towle reads as follows:
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In claiming that the veteran's post service animal fat consumption habits could have been influenced by his war service, the applicant relied on the opinions of Dr Canardy expressed in his reports. "It is possible that a person, specifically a young adult could develop a generally increased preference and consumption of fat in excess of need following exposure to elevated levels of fat in a diet in the presence of a previously lower consumption of fat, exhibit R2 page 8. There is some evidence that fat might have some of the qualities of an addictive substance, exhibit R2 page 7. It could also be concluded from Blundell and Nadarneds 1997 proposal that exposure to fat generally leads to increased fat consumption, exhibit R2 page 6.
The Tribunal, in this decision, continued at paragraph 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. There are physical, psychological and emotional factors. It would be impossible to mention then 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 expert witnesses appear not to have considered these parameters which impact on veterans in their post war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet is the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation which requires reasonable certainty that a link does not exist before the claim can be rejected.
As we have said, in this matter there is in reality not a scintilla of real evidence that anything in the applicant's war service caused him to increase the consumption of fat in his diet post service. However the hypothesis has been put forward, there is some material to support the hypothesis and as pointed out in cases such as Rickaby and Meehan supra, the fact finding is at stage four of the Deledio process and the Tribunal must be satisfied beyond reasonable doubt that the facts upon which the hypothesis has been raised do not exist.
That is, of course, a considerable onus upon the respondent and in this matter, although we regard the link or causal link with war service as tenuous in the extreme, we cannot say that we are satisfied beyond reasonable doubt that the facts don't exist. The facts being, as was referred to in Towle, that something within the war service caused this veteran to seek out fats and an increase in
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©Auscript Pty Ltd 2001fats in his diet post service. That being so, the decision under review
will be set aside and the Tribunal will substitute in lieu thereof that the death of Allen Crust, deceased, was war caused and that the applicant is entitled to pension consequent upon the death of the deceased as and from 16 August 1998.---------------------------
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