Dunn and Repatriation Commission
[2011] AATA 893
•15 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 893
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4646
GENERAL ADMINISTRATIVE DIVISION ) Re DAWN DUNN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date15 December 2011
PlacePerth
Decision Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
...(sgd) Mr S Penglis...............
Senior Member
CATCHWORDS
Veterans’ Affairs – veterans’ entitlement – disability pension – veteran died from malignant neoplasm of prostate – veteran’s claim maintained by his widow – statement of principles – reasonable hypothesis that veteran’s malignant neoplasm of prostate connected with operational service – tribunal satisfied beyond reasonable doubt that factual foundation for the reasonable hypothesis is not proved – decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 7(1), 9(1),196A and 196B
Statement of Principles concerning malignant neoplasm of prostrate (Instrument number 28 of 2005)
CASES
Dunn and Repatriation Commission [2005] AATA 510
Dunn and Repatriation Commission [2007] AATA 1996
Fuss v Repatriation Commission [2001] FCA 1529
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation v Dunn [2006] FCA 1703REASONS FOR DECISION
15 December 2011 Mr S Penglis, Senior Member Background
1. The applicant is the widow of the late John Forbes Dunn (veteran) who died of prostate cancer on 15 June 2003.
2. The veteran served in the Royal Australian Navy from 12 July 1947 to 11 July 1959. He had two periods of operational service, namely from 12 July 1947 to 3 June 1951 and then from 2 November 1953 to 16 July 1954.
3. On 20 March 2002, the veteran lodged an application, pursuant to Part II of the Veterans Entitlement Act (Cth) 1986 (VE Act) in respect of malignant neoplasm of the prostate and seborrhoeic keratosis.
4. On 30 April 2002, a delegate of the respondent refused the veteran’s claim.
5. On 21 May 2002, the veteran applied to the Veteran’s Review Board (VRB) to review the delegate’s decision. The veteran later withdrew his application in respect of seborrhoeic keratosis.
6. On 5 May 2003, the VRB adjourned the hearing so that expert evidence could be obtained from a dietician in respect of the quantities of the animal fat in Mr Dunn’s diet at relevant times. The veteran died without any dietition interviewing him.
7. The applicant continued the veteran’s claim pursuant to s 126(1) of the VE Act.
8. On 3 September 2003, the VRB resumed its hearing and decided to affirm the delegate’s decision.
9. On 8 October 2003, the applicant applied to this Tribunal for a review of the VRB’s decision.
10. On 2 June 2005, the Tribunal; constituted by Dr E K Christie, set aside the decision of the VRB and, in substitution, decided that the veteran’s malignant neoplasm of the prostate was war-caused: Dunn and Repatriation Commission [2005] AATA 510 (first AAT decision). The respondent lodged an appeal to the Federal Court of Australia in respect of the first AAT decision.
11. On 8 December 2006, Nicholson J of the Federal Court of Australia allowed the respondent’s appeal against the Tribunal’s decision: Repatriation Commission v Dunn [2006] FCA 1703. His Honour relevantly held, at [47], that:
“…there was not material before the Tribunal which pointed to the continuance of Mr Dunn’s diet for a period of 20 years as being related to his operational service. The only way that relationship could have been open and found would have been by inference that it would not have occurred but for the rendering of the service by him – s 196B (14) (f) – or otherwise fell within other paragraphs of that section. Taking into account the factors referred to in the Commission’s submission, it cannot be concluded that the inference was logically the only conclusion open from other circumstances in the material. The element of enduring fat consumption for 20 years was not either the subject of an express finding of the necessary relationship or a conclusion open by inference from the material before the Tribunal.”
12. His Honour further held at [49] that:
“For the reason given under ground 1 in relation to making of an inference, it was not open for it to be inferred that such a consumption [i.e. consumption of animal fat for 20 years following his operational service] was related to his consumption during operational service, in the absence of any evidence of the relationship in that regard.”
13. His Honour ordered that the matter be remitted to the Tribunal for hearing and determination according to law.
14. On 28 November 2007, the Tribunal; constituted by Deputy President Hotop and Dr P A Staer, affirmed the decision of the VRB: Dunn and Repatriation Commission [2007] AATA 1996 (second AAT decision).
15. The second AAT decision relevantly decided:
“[8] The ultimate issue for the Tribunal’s determination is whether the veteran’s malignant neoplasm of the prostate, which resulted in his death, was war-caused.”
“[39] The Tribunal, having considered the whole of the material before it, is of the opinion that that material points to a hypothesis connecting the veteran’s malignant neoplasm of the prostate with the circumstances of his operational service as follows:
from the commencement of his RAN service (including his operational service) on 12 July 1947, the veteran was introduced to a daily service diet which contained a substantially higher level of animal fat than his daily pre-service diet, and he maintained that daily diet for the duration of his RAN service (including his operational service);
after his discharge from the RAN on 11 July 1959, he maintained a diet with a high animal fat content (similar to his RAN service and operational service diet) until January 1984 because he associated that diet with the “caring family environment” which he enjoyed in the RAN.”
“[45] Finally, the Tribunal must consider, in accordance with s 120(1) of the VE Act, whether it is “satisfied, beyond reasonable doubt, that there is no sufficient ground” for determining that the veteran’s malignant neoplasm of the prostate was a war-caused disease, within the meaning of s 9 of the VE Act. If the Tribunal is not so satisfied, it must, in accordance with s 120(1), determine that that disease was a war-caused disease.”
“[48] More specifically, the Tribunal, on the basis of Dr English’s report, is satisfied, beyond reasonable doubt, that:
the veteran’s reported pre-service daily diet containing 42.1 grams of animal fat (as calculated by Dr English) substantially understates the amount of animal fat actually consumed by him on a daily basis in that period, and, accordingly, it cannot be regarded as reliable;
the amount of animal fat consumed by the veteran on a daily basis during his RAN service (including his operational service), by reason of the standard diet provided to him in the course of that service, was at least 108.8 grams per day;
the amount of animal fat consumed by the veteran on a daily basis in the period immediately prior to, and as at the commencement of, his operational service was at least 108.8 grams per day (and probably greater than that amount).
In short, the Tribunal is satisfied, beyond reasonable doubt, that the veteran’s consumption of animal fat did not, during the period of his RAN service (including his operational service), increase by at least 40%, or at all, compared with the amount of animal fat consumed by him in the period immediately prior to, and as at the commencement of, his operational service.
[49] As regards the post-service period, the Tribunal, on the basis of Dr English’s report, is satisfied, beyond reasonable doubt, that the veteran’s reported daily diet containing 224.8 grams of animal fat (as calculated by Dr English) substantially overstates the amount of animal fat actually consumed by him on a daily basis in that period, and, accordingly, it cannot be regarded as reliable. It may be that the veteran, in the post-service period, increased his daily animal fat consumption beyond the amount which he consumed during the period of his RAN service (including his operational service). The Tribunal is, however, satisfied, beyond reasonable doubt, that any such increase in the veteran’s animal fat consumption occurred solely by reason of his own voluntary choice and was not related to (within the meaning of s 196B(14) of the VE Act) his operational service.
[50] Accordingly, the Tribunal is satisfied, beyond reasonable doubt, that the factual foundation of the raised hypothesis connecting the veteran’s malignant neoplasm of the prostate with the circumstances of his operational service is disproved, and that, therefore, there is “no sufficient ground” (within the meaning of s 120(1) of the VE Act) for determining that the veteran’s malignant neoplasm of the prostate was a war-caused disease, within the meaning of s 9 of the VE Act: Bushell (above), at 416; Byrnes (above), at 571.
[51] In accordance with s 120(1) of the VE Act, therefore, the Tribunal finds that the veteran’s disease, namely, malignant neoplasm of the prostate, was not a war-caused disease, within the meaning of s 9 of the VE Act.”
16. In about September 2003, the applicant made a claim to have the veteran’s death from “metastatic adenocarcinoma of the prostate” accepted as war caused. The claim was refused on 23 September 2003, and the applicant sought review of this decision by the VRB.
17. The VRB relied on the reports previously provided by Dr Ruth English AO, and on the further expert evidence of Ms Peggy Stacy, a Consultant Dietician in the form of a report dated 16 February 2007 (sic: 2009).
18. On 25 June 2009, the VRB affirmed the decision under review.
19. On 29 September 2009, the applicant lodged an application with the Tribunal seeking a review of the VRB's decision.
Relevant Legislation
20. The relevant provisions of the VE Act are set out in the Tribunal’s reasons for decision in the second AAT decision: see [10]. They need not be repeated here.
The Primary Issue
21. What the application turns on is whether, having regards to all of the evidence received, the Tribunal is satisfied, beyond reasonable doubt that what the veteran said his diet to be was incorrect. If the Tribunal is not so satisfied, the matter must be decided in favour of the applicant because it was common cause that if the Tribunal could not be so satisfied, there existed a reasonable hypothesis connecting the applicant’s injury or disease with the circumstances of the particular service rendered by the veteran by reason of Statement of Principles (SoP) Instrument No 28 of 2005 (which took effect on 20 September 2005) concerning malignant neoplasm of the prostate.
22. The relevant factor in the SoP requires
“increasing animal fat consumption by at least 40% and to at least to 50 gms/day and maintaining these levels for at least 5 years within the 25 years before the clinical onset of malignant neoplasm of the prostate.”
23. For the purposes of the SoP “animal fat” is defined as
“fat containing or derived from:
(a) meat, other flesh or offal from animals, including birds (excluding seafood)
(b) dairy products, or
(c) eggs from birds”.
24. This application thus centres upon what the veteran wrote in an appendix to his application for a disability pension in a document headed “Claimant Report – Increase in Animal Fat Consumption Malignant Neoplasm of the Prostate”, which the veteran signed and dated 20 December 2001. In the “Appendix“ thereto, the veteran wrote as follows:
“1. Report Detail of significant long lasting increase in the consumption of Animal Fat.
12 July 1947 to January 1984. Joined the RAN July 1947 and was fed three (3) animal fatty meat meals a day.
15 October 1953 to 23 September 1954. A gradual increase in the amount of Animal fatty meat meals a day as the ship – the Murchison – approached the Northern Hemisphere into Korean Waters and colder weather.
23 September 1954 to January 1984. Discharged from the RAN 12 July 1959. Continued RAN diet until January 1984.
2. Daily Diet before the Increase in Animal Fat.
The following is an example of my daily diet before joining the RAN on the 12 July 1947.
BREAKFAST - Porridge or Cereal
1 Piece of Toast with vegemite, peanut butter or
Just plain with butter
TeaMorning Tea - Tea – Cake or Biscuits if available
LUNCHEON - Sandwiches 1 or 2 rounds, with Vegemite, Peanut Paste,
Honey or Jam, or combination of two.Afternoon Tea - Tea
DINNER - Meat – 1 serve of one of the following, Lamb, Rabbit, Stewed
Beef, Sausages, with or without gravy.
Sweets – 1 Serve of one of the following, Jelly and stewed
or Tinned fruit with custard or Junket or fresh fruit when
available.
2. Daily Diet after the increase of animal Fat.
The following is an example of the diet that was available and common throughout the RAN
SUNDAY
BREAKFAST - Fried Eggs when available otherwise scrambled eggs,
Bacon, Sausages, gravy and buttered toast. Tea.
DINNER - Roast Pork and Roast Vegies with gravy.
Sweets – Pudding
TEA - Tea and Cake
SUPPER - Baked Beans on Toast or Bread.MONDAY
BREAKFAST - Similar to Sunday
DINNER - Fried Lamb Chops and gravy with boiled vegies
Sweets – Pudding
TEA - Similar to Dinner and SweetsTUESDAY
BREAKFAST - Hot Mince on Toast, Toast and Tea.
DINNER - Savoury Pie and Vegies. Sweets.
TEA - Similar to Monday.
SUPPER - Corned Beef and carrots with a mustard sauce.
Sweets Sago and pineapple pieces.WEDNESDAY
BREAKFAST - Similar to Sunday
DINNER - Mid week Roast, vegies and gravy and Sweets.
TEA - Similar to Monday.
SUPPER - Similar to Dinner.Sweets.THURSDAY
BREAKFAST - Similar to Sunday
DINNER - Meat Stew and Boiled vegies. Sweets.
TEA - Similar to Monday.
SUPPER - Meat Pie and Vegies. Sweets.FRIDAY
BREAKFAST - Similar to Sunday
DINNER - Fish Kedgeree and white sauce or Fried Fish. Sweets.
TEA - Similar to Monday.
SUPPER - Fish kedgeree and white sauce Sweets.SATURDAY
BREAKFAST - Similar to Sunday
DINNER - Fried Sausages and gravy, mashed potatoes and vegies.
Sweets.
TEA - Similar to Monday.
SUPPER - Mince on Toast or Bread. Sweets.KOREA – Station Yong Pong Do at 38th Parallel
In the cold climate in Korea we were told to increase out intake of fat so as to increase body warmth in the freezing climate, this meant an increase of fatty meat foods as this is all that was available. Our diet was similar too, as already, outlined but more of. We were told that in Korea animal fat was important in the cold weather, so that our bodies would be able to handle the very cold climate to which our bodies were not accustomed.
During action stations we were issued with cold meat sandwiches, hunks of cheese and slabs of bread and cheese and, of course, hot tea. During other times we would munch on bread fried in lamb fat as we were about our duties.
The Murchison, like most Australian ships had minimum heating and it was generally accepted that a diet rich in animal fats would protect from the freezing conditions.
eg. Breakfast - cereal – tea
Lunch - Salad sandwiches and fresh fruit.
Dinner - Meat – mainly grilled with little or no fat or stewsin winter, with cooked vegies or salads. Sweets-
Icecream, stewed fruit or fresh fruit if required.”
The VRB Decision
25. The VRB relevantly decided as follows:
“If accepted at face value the veteran’s pre service diet and his service and post service diet would allow an increase in animal fat consumption of at least 40% and this was part of the material pointing to a reasonable hypothesis. Dr English challenged the accuracy of the pre service diet and went as far as saying”
“The evidence does not support the proposition that Mr Dunn’s animal fat intake increased by at least 40%, though considered to have reached at least 70 g per day. Scientific analysis of the evidence provided showed beyond reasonable doubt that Mr Dunn’s application did not meet the criteria of the SOP …” (folio 287)….
The Board had some reservations about an expert being so certain of their opinion that they could be satisfied beyond reasonable doubt. Dr English had also said at folio 275;
“Based on well established principles of physiology and thermodynamics, it would be concluded in the pre service period, the usual diet report of Mr Dunn would only have provided energy to maintain him at a resting level of metabolism, in a supine state without food or any conscious level of physical activity….”
In support of this view, which the Board with respect as lay persons found to be questionable when one looks at the pre service diet, Dr English said at folio 276:
“It is concluded that the kind of diet that the late veteran reported to be eating prior to enlistment in 1944 (later corrected by Dr English to 1947 the actual year of enlistment) is not commensurate with his height of 5’11” and weight of 146 lbs. (66.4 kg) at enlistment and his medical classification then as ‘fit for service’” (refer folio 68 and 57)….”
Whilst acknowledging that this latter quote gave some support to her earlier view which the Board had difficulty with, never the less the Board sought another opinion in relation to the view expressed by Dr English. A further opinion was obtained from Perth Diet Clinic authored by Peggy Stacy which is set out at folios 5260527. The Board posed a number of questions for the new expert and these are set out in the Board’s letter at folios 519-521.
At folio 526 Peggy Stacy replied to the Board’s questions. Critically she said that based on his recorded dietary intake his saturated fat intake per day was 19.70 g. If this was accurate it would allow an increase of at least 40%. That response was qualified, however, in her other answers. Importantly she said in answering question 2; “He would not have been able to sustain a reasonable level of activity with the diet outlined. I would have expected significant weight loss. He was a low normal weight with a BMI of 20.49. In answering question 5 she said; “I do not believe the diet is credible for an active young man who has recently finished growing and is doing manual labour starting out in carpentry”. At question 6 she said; “I would agree with the statement ‘Based on well established principles of physiology and thermodynamics’ it would be concluded that in the pre service period, the usual diet reported for Mr Dunn would only have [provided energy to maintain him at a resting level of metabolism, in a supine state without food or any conscious level of physical activity”.
In concluding her report Peggy Stacy said:
“I would have expected considerably more food and more fat in his daily diet but probably not nearly to the level of his navy days. I feel it is unfortunate that he has probably underestimated his intake to the point where it is detrimental to his case.”
In saying ‘I would have expected considerably more food and more fat in his daily diet but probably not nearly to the level of his navy days’, Peggy Stacy is apparently concluding that there was an increase in animal fat after enlistment. The Board can comfortably find this to be a fact but given her earlier comments about the credibility of the pre service diet, and the fact that her opinion accords with the opinion of Dr English, fundamentally calls into question the pre service diet relied on to raise a reasonable hypothesis. The result is and the Board finds that the pre service diet is effectively an unknown. The result is and the Board finds that the pre service diet is effectively an unknown. In these circumstances the Board is unable to quantify an increase in animal fat by at least 40% as required by the SOP.
The Board has come to this finding based on the evidence of two experts who independently have come to the same conclusion. There was no other expert evidence before the Board. The Board does acknowledge that the applicant endeavoured to obtain a report from a dietician but was unable to do so despite several attempts.
Having reviewed the whole of the material before it and for the reasons given above, the Board is satisfied beyond reasonable doubt that it cannot accept sufficient of the facts as are necessary to support the raised hypothesis. It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran’s death was war-caused. In these circumstances, the Board is required to affirm the decision under review.
The Hearing
26. On the first day of the hearing, the various letters and reports of Dr English and Ms Stacy were received into evidence and challenged by counsel for the applicant. Counsel for the applicant submitted that, when properly considered, sufficient doubt existed with respect to the opinions expressed by Dr English and Ms Stacy such that the Tribunal could not conclude that their opinions were correct and that it therefore followed that the Tribunal could not conclude to the relevant standard (i.e. beyond reasonable doubt) that the facts upon which the “reasonable hypothesis” upon which the applicant relied were not correct.
27. The problem was, however, that the applicant had not given any notice of her intention, nor taken any steps, to arrange for the questioning of Dr English or Ms Stacy. In this regard the following exchange between the Tribunal and Counsel for the applicant took place:
“Tribunal: If we are now going to undermine the expert report, this Tribunal will
want see the experts. How can I do fairness to both parties in regard to an expert opinion without the proposition being put to the expert?
Mr Hooker:I don’t shy away from that, Senior Member. I accept that is a reality of that tribunal.
Tribunal: Well, it follows as surely as night follows day, does it not Mr Hooker?
Mr Hooker: Yes.”
28. As a consequence, the applicant moved that the hearing be adjourned to allow steps to be taken to facilitate Dr English and Ms Stacy giving evidence. The respondent (quite properly notwithstanding the obvious inconvenience to it) did not oppose the application. The application was granted and the hearing adjourned.
29. When the hearing resumed some months later, the applicant no longer had legal representation and was represented by her son. The applicant was present at the hearing.
30. The applicant, through her son, informed the Tribunal that she was adopting a different tact to that which had previously been adopted. The applicant no longer sought to call Dr English but rather only sought to have Ms Stacy called to question her. That occurred.
Ms Stacy
31. It is unnecessary for me to set out at length the applicant’s questioning of Ms Stacy. In short, various propositions were put to Ms Stacy essentially to the effect that her conclusions were attended with a sufficient margin of error so that it could not be said that what the veteran had reported as having been his diet was incorrect beyond reasonable doubt).
32. It was clear from Ms Stacy’s evidence that she had, where possible, erred in favour of the veteran when performing her calculations. In short, nothing arose during the course of Ms Stacy’s questioning that would justify the Tribunal in any way discounting the force of her evidence.
Submissions
33. Once the evidence had closed, as a matter of fairness to the applicant, the Tribunal directed that the parties’ closing submissions be made in writing. The applicant filed lengthy written submissions, the respondent filed lengthy reply submissions and the applicant filed a lengthy responsive submission.
34. The applicant’s first submission, after reciting various pieces of evidence which the applicant contended was relevant, stated as follows:
“Hypothesis
The veteran died of Metastatic adenocarcinoma of the prostate (8 years).
This was the result of the disease malignant neoplasm of the prostate diagnosed with a clinical onset in 1995, which is linked to the veteran’s operational service.
The Veteran’s father died in November 1939. The Veteran’s mother died in June 1940 when the Veteran was aged 10. He and his siblings were split up among several families and the Veteran ended up being cared for by the local parish priest, Reverend Currie, who was a bachelor.
While being cared for by Reverend Currie, the diet of the Veteran was on was low in animal fat. Reverend Currie’s diet was supplemented by his parishioners but supplements were not passed on to the Veteran.
The Veteran joined the Navy in 1947 when Reverend Currie left Australia. The Veteran’s World War 2 operational service commenced from the day he joined the Navy, 12 July 1947.
On joining the Navy the Veteran's animal fat consumption significantly increased by at least 40%
In 1947, it is recorded pursuant to a 1998 scientific paper by Dr Ruth English that the average availability for the civilian diet included the consumption of 95-98 grams of animal fat per head per day (page 139 pp 4 of the ‘T’ documents). The average availability for the service diet resulted in consumption of 107.7 grams of animal fat per head per day for Temperate Australia.
NOTE: The diets referred to here are for calculation purposes only. According to the Scientific Report (page 138 of the ‘T’ documents paragraph 2). The last sentence states
“It does not provide data on actual food consumption”.
(Page 149 of the ‘T’ documents Attachment 3, 1st paragraph). The first sentence states:
“Sample diets of individual foods and quantities consumed were prepared from each of the service rations to provide a basis for the analysis of the rations”.
The service rations (amended) were identified as follows (page 299 of the ‘T’ documents):
Region
Grams
per day
Eastern and Northern Command – standard military ration scale September 1939 to August 1942
89.6
Temperate Australia – New South Wales, Victoria, South Australia, Tasmania, south WA, Queensland – Rockhampton and south from August 1942
107.7
Tropical Zone – Northern Territory, northern WA, Queensland north of Rockhampton, Torres Islands from August 1942, New Guinea and Pacific August 1942 to April 1943
102.1
Middle East
113.4
New Guinea and Pacific April 1943 to January 1944
113.9
New Guinea and Pacifica February 1944 to October 1945
132.5
All service diets exceeded the amount of 70g of animal fat per day as shown above and identified in the scientific report as amended on page 299 of the ‘T’ documents.
John stayed in the Navy for the next eight years (post operational service) being supported through the lean post war years by his proxy family (The Navy) who cared and supported him with stability, camaraderie, clothing and a rich diet which John came to associate with a caring family environment. When John discharged from the Navy in 1959 to be with his own family he insisted on this same type of diet.
The Veteran's diet did not change substantially from the start of his operational service, for the next 37 years, until the early 1980's when it became well known that consumption of fatty foods was detrimental to health.
SOP
The SOP in force at the time of the application was No 84 of 1999 as amended by No 69 of 2002.
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service are:
(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;
8. For the purposes of this Statement of Principles:
‘animal fat’ means fat contained in or derived from:
meat, other flesh or offal from animals (including birds but excluding seafood),
dairy products, or
eggs from birds;”
In light of Repatriation v Gorton (2001) 110 FCR 321, the tribunal must first consider the SoP currently in force: SoP No 28 of 2005:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service are:
(c) increasing animal fat consumption by at least 40% and to at least 50gm/day for at least 5 years within the twenty five years before the clinical onset of malignant neoplasm of the prostate;
8. For the purposes of this Statement of Principles:
‘animal fat’ means fat contained in or derived from:
meat, other flesh or offal from animals (including birds but excluding seafood),
dairy products, or
eggs from birds;”
Factors Supporting the SOP
Considering the SoP No 84 of 2005.
Increasing animal fat consumption by at least 40%. .
Paragraph 12 of this submission identifies a factor based increase extrapolated from the examples diets provided by John Dunn. Converting these factors into a percentage identifies the increase of John’s pre-service diet to service diet (Temperate Australia Ration Scale of 107.7g of animal fat per day) to be between 50 – 100%.
Working backwards from the service diet this places John’s animal fat consumption to be between 53.85 to 80.77 grams of animal fat per day.
John’s diet increased in animal fat consumption because of his operational service in WW2.
John maintained this diet for the next 37 years. The maintenance of this diet was materially contributed to by his operational service.
Maintaining this level for at least 5 years within the twenty five years before the clinical onset of malignant neoplasm of the prostate.
John’s clinical onset of malignant neoplasm of the prostate as identified on page 009 of the ‘T’ documents is 3 March 1995.
That John died from malignant neoplasm of the prostate is identified on his death certificate on page 247 of the ‘T’ documents.
John identified on the original claimant report (page 66 of the ‘T’ Documents) submitted as part of his original claim on 20 March 2002 that:
“12 July 1947 to Jan 1984. Joined the RAN July 1947 and was fed three (3) animal fatty meat meals a day.”
“15 October 1953 to 23 Sep 1954. A gradual increase in the amount of animal fatty meat meals a day as the ship – the Murchison – approached the Northern Hemisphere into Korean Waters and colder weather.”
“23 September 1954 to January 1984. Discharged from the RAN 12 Jul 1959. Continued RAN diet until January 1984.”
25 Years before the clinical onset of the malignant neoplasm of the prostate is 1970
John continued his operational service diet until 1984.
1970 to 1984 is a 14 year period within the 25 years before the clinical onset of malignant neoplasm of the prostate.
That the animal fat referred to is equivalent to that defined by the element identified in paragraph 8 of the SoP
This addressed in Dr English’s scientific report on pages 130 – 170 of the ‘T’ documents and modified for the changes to the SoP as identified by No 69 of 2002 by Dr English on page 299 of the ‘T’ documents. The 2002 amendment is carried on in the SOP No 84 of 2005.”
35. The applicant’s submissions concluded by referring the Tribunal to the decision of the Federal Court of Australia in Fuss v Repatriation Commission [2001] FCA 1529 at [42] and [43] and to Kattenberg v Repatriation Commission [2002] FCA 412 at [41 – 44].
36. The crux of the respondent’s submissions were as follows:
“Accordingly, the task for the Tribunal is to consider the whole of the material and ask whether the material points to:
The Veteran’s consumption of animal fat having increased by at least 40% and to at least 50gm/day.
If so, whether such increased levels of animal fat consumption being related to Veteran’s operational service in one of the ways prescribed by s 196B (14) and s 8(1) of the VE Act;
The Veteran having maintained the increased levels of consumption of animal fat for at least five years in the twenty-five years prior to the clinical onset of his malignant neoplasm of the prostate;
If so, such maintenance of the increased levels of consumption of animal fat being related to Veteran’s operational service in one of the ways prescribed by s 196B (14) and s 8(1) of the VE Act.
Hypothesis
2.23 Whether a ‘hypothesis’ arises on the whole of the material before the Tribunal the task for the Tribunal is to consider the whole of the material and ask whether the material points to the Veteran’s consumption of animal fat having increased by at least 40% to at least 50gm/day;
(a) If so, whether such increased levels of animal fat consumption being related to Veteran’s operational service in one of the ways prescribed by s 196B (14) and s 8(1) of the VE Act;
(b) The Veteran having maintained the increased levels of consumption of animal fat for at least five years in the twenty-five years prior to the clinical onset of his malignant neoplasm of the prostate; and
(c) If so, whether such maintenance of the increased levels of consumption of animal fat being related to Veteran’s operational service in one of the ways prescribed by s 196B(14) and s 8(1) of the VE Act.
EVIDENCE AND MATERIAL BEFORE THE TRIBUNAL
The Respondent respectfully requests that the Tribunal in reaching the correct and preferable decision, considers the whole of the material that has been provided to and is before the Tribunal and in particular the following:
The documents provided in accordance with s. 37 of the Administrative Appeals Tribunal Act 1975;
The Respondent’s Statement of Facts Issues and Contentions date 14 January 2011;
The reports of and the material[1] relied upon by Dr. Ruth English, Consultant Nutritionist, in providing her opinions;
[1] Reports at: T48; and T49.
The reports of and the material[2] relied upon by Ms. Peggy Stacy, Consultant Dietician, in providing her opinions; and
[2] Reports of: T58; and 22 November 2010 (R1).
The ver voce evidence of Ms. Stacy given by her on 27 June 2011.
The Raised Hypothesis
The whole of the material before the Tribunal that material points to a hypothesis connecting the Veteran’s malignant neoplasm of the prostate with the circumstances of his operational service as follows:
(a) from the commencement of his RAN service (including his operational service) on 12 July 1947, the Veteran was introduced to a daily service diet which contained a substantially higher level of animal fat than his daily pre-service diet, and he maintained that daily diet for the duration of his RAN service (including his operational service);
(b) after his discharge from the RAN on 11 July 1959, he maintained a diet with a high animal fat content (similar to his RAN service and operational service diet) until January 1984 because he associated that diet with the “caring family environment” which he enjoyed in the RAN; and
(c) his maintaining that high animal fat diet until January 1984 contributed in a material degree to his subsequently contracting malignant neoplasm of the prostate.
Is the ‘Raised Hypothesis’ a reasonable hypothesis?
In considering the abovementioned raised hypothesis, there is material before the Tribunal which points to:
(a) the Veteran’s pre-service diet having involved the consumption of 42.1 grams of animal fat per day as calculated by Dr English; and
(b) the Veteran’s post-service diet having involved the consumption of 224.8 grams of animal fat per day as calculated by Dr English.
There is also material before the Tribunal (Dr English’s report of 14 May 2004) which points to the Veteran’s RAN diet during service (including his operational service) as involving the consumption of 108.8 grams of animal fat per day. There is, furthermore, material before the Tribunal which points to:
(a) the Veteran after his discharge from the RAN in 1959, as having maintained, a diet containing an amount of animal fat at least as high as that contained in his RAN service (including his operational service) until January 1984; and
(b) his having maintained such a diet for that period because he associated it with the ‘caring family environment’ which he enjoyed during his RAN service (including his operational service); and
(c) his having first been diagnosed with malignant neoplasm of the prostate in 1995.
Accordingly the whole of the material before the Tribunal raises a hypothesis that is consistent with clause 5(c), together with clause 4, of Instrument No 28 of 2005 and with clause 5(c), together with clause 4, of Instrument No 84 of 1999.
Therefore, the abovementioned raised hypothesis, connecting the Veteran’s malignant neoplasm of the prostate with the circumstances of his operational service, is a reasonable hypothesis.
Findings and s. 120(1) of the VE Act
Finally, the Tribunal must consider, in accordance with s 120(1) of the VE Act, whether it is ‘satisfied, beyond reasonable doubt, that there is no sufficient ground’ for determining that the Veteran’s malignant neoplasm of the prostate was a war-caused disease, within the meaning of s 9 of the VE Act. If the Tribunal is not so satisfied, it must, in accordance with s 120(1), determine that that disease was a war-caused disease.
The relationship between ss. (1) and (3) of s 120 of the VE Act was explained by the High Court of Australia in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564.
In Bushell Mason CJ, Deane and McHugh JJ said (at 413, 415, 416):
“... Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis ...If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused ‘unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.
The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination”... .
In Byrnes Mason CJ, Gaudron and McHugh JJ said (at 571):
“The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? ... (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
In this matter, the Tribunal, having considered the whole of the material before it, and in particular the analysis, opinions and conclusions set out in Dr English’s report of 14 May 2004, would be satisfied that there is no sufficient ground for making a favourable determination in respect of the claim because it would be “satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the [Tribunal] or because the raised facts depend on inferences which the [Tribunal] is satisfied cannot be drawn, the [Tribunal] will be satisfied that there is no sufficient ground for making the determination” (Bushell).
The Tribunal will note that there was no expert evidence before it which contradicted Dr English’s analysis, opinions and conclusions.
More specifically, the Tribunal, on the basis of Dr English’s reports and the reports and evidence of Ms. Stacy, should be satisfied, beyond reasonable doubt, that:
the Veteran’s reported pre-service daily diet containing 42.1 grams of animal fat (as calculated by Dr English) substantially understates the amount of animal fat actually consumed by him on a daily basis in that period, and, accordingly, it cannot be regarded as reliable and is indeed implausible (Ms. Stacy’s evidence was to the same effect); and
the Veteran’s reported pre-service daily diet contained at least 108.8 grams of animal fat (given his normal development and weight on enlistment).
Moreover, that the amount of animal fat consumed by the Veteran on a daily basis during his RAN service (including his operational service), by reason of the standard diet provided to him in the course of that service, was probably about 108.8 grams per day.
That the amount of animal fat consumed by the Veteran on a daily basis in the period immediately prior to, and as at the commencement of, his operational service was probably about 108.8 grams per day.
Thus, it is submitted, the Tribunal would be satisfied, beyond reasonable doubt, that the Veteran’s consumption of animal fat, during the period of his RAN service and particularly in regards to his operational service, did not increase by at least 40%, or at all, compared with the amount of animal fat consumed by him in the period immediately prior to, and as at the commencement of, his operational service or indeed during his service generally.
The Applicant’s submissions appear to hinge on the Veteran increasing his animal fat consumption by at least 40% on joining the RAN and to an even greater extent during the post-service period. The submissions rely upon a paper published by Dr. English in 1998 that in 1947 the average availability to animal fat in the civilian diet was relevantly 95-98 grams per person; and that the ‘service rations (amended)’ provided that 107.7 grams of animal fat as being available in the service diet for ‘Temperate Australia’ (see paragraphs 24 to 26 inclusive of the Applicant’s submissions). The Applicant’s submissions, if the premise that appears to arise thereby is accepted, it would require that the probable daily average consumption of animal fat consumed by the Veteran would need to have increased to 133 grams of animal fat per day during service and particularly during his operational service (i.e. the increase from 95 grams per day to have increased by 40% would need to reach 133 grams).
There is no evidence that such a level of animal fat was consumed by the Veteran immediately before, during, or after his operational service and prior to his discharge from the RAN.
As regards the Veteran’s diet during the post-service period, on the basis of Dr English’s report, it is submitted that the Tribunal would be comfortably satisfied, beyond reasonable doubt, that the Veteran’s reported daily diet containing 224.8 grams of animal fat (as calculated by Dr English) substantially overstates the amount of animal fat actually consumed by him on a daily basis in that period, and accordingly, it cannot be regarded as reliable or plausible. It is possible that the Veteran, in the post-service period, increased his daily animal fat consumption beyond the amount which he consumed during the period of his RAN service (including his operational service). It is submitted, however, that this is not supported by the fact that the Veteran’s body weight did not increase in that period and from the calculations and conclusions drawn by Dr. English and Ms. Stacy.
The evidence also strongly points to a finding, beyond reasonable doubt, that any such increase, if it occurred, in the Veteran’s animal fat consumption occurred solely by reason of his own voluntary choice and was not related to (within the meaning of s 196B(14) of the VE Act) his operational service. The diet maintained by the Veteran, in the post-service period, was a matter personal preference and not a consequence of his operational service or indeed his RAN service generally. There is no evidence that the Veteran’s operational service was causative in him maintaining any particular diet.
Accordingly, the Tribunal would be satisfied, beyond reasonable doubt, that the factual foundation of the raised hypothesis connecting the veteran’s malignant neoplasm of the prostate with the circumstances of his operational service is disproved, and that, therefore, there is ‘no sufficient ground’ (within the meaning of s. 120(1) of the VE Act) for determining that the veteran’s malignant neoplasm of the prostate was a war-caused disease, within the meaning of s. 8 of the VE Act.”
37. The applicant’s submission in response were to the effect that:
“The respondent has failed to provide any factual evidence to support their case, therefore the correct operation of section 120 of VE Act is that the late veteran’s malignant neoplasm of the prostate and subsequent death from this disease should be determined as war caused.”
38. In support of that conclusion the applicant made the following submissions:
“In considering the whole of the material the respondent suggests that the reports by Dr English and Ms Peggy Stacy be considered as providing proof beyond reasonable doubt that an essential fact relied upon by the applicant is inconsistent with the hypothesis, namely that his pre-service diet as stated on the Diet Survey Form (page 119 to 129 of the ‘T’ Documents) is invalid because it under-reported energy consumption. The assumption being that any calculation of Mr Dunn’s consumption of animal fat, based on the invalid diet, was also invalid. The limitation of this inference is whether the under-reported energy consumption was of energy in the form of animal fat, protein or carbohydrate or of some (infinite) combination of those three food types. Another assumption could be that the animal fat content is correct and the protein and carbohydrate portions of the analysis are in question.
Both Peggy Stacy and Dr English in their oral evidence before this or previous tribunals have stated that they did not know or meet the late veteran, Mr John Dunn.
As identified in the oral evidence by Ms Stacy before this tribunal there was a lack of detail for non meat products in the diet survey provided by the late veteran, Mr John Dunn, and this lack of detail would affect any analysis of the diet provided. Ms Stacy went on to say that she uses the technique of interview to fill in the ‘forgotten’ portions of the dietary surveys.
Dr English in her first nutrition report (page 277 of the ‘T’ documents, paragraph 3) clearly identifies the minimum requirements for a diet analysis:
“…This information is not provided in sufficient detail (food description, and quantity and between meal intake) to allow an analysis of daily intake of animal fat and energy”.
Undertaking a detailed analysis of an example diet without reference to the Veteran and then making assumptions to complete food values which are based on todays values suggests that the diet is no longer about the late veteran, John Dunn, his pre-service diet in the 1940’s and his post-service diet in the 60’s and 70’s, but is some fanciful hybrid mix between what the experts think he should have been and todays dietary values.
Dr English in her oral submission to the first tribunal goes further (page 621 of the ‘T’ Documents) and states that:
“…and almost all the information that I got back contradicted my objective assessments were in relation to recall of Mr Dunn’s lifestyle and Mr Dunn’s diet, which must be subjective.
and before the 2007 Tribunal (page 957 of the ‘T’ Documents, line 19, 20):
“Well, the information was given as that and I used the standard information today, and I don’t know what was being done in – in the 1940’s”
Ms Stacy in her second report (exhibit #R1) states at the end of (111):
“I tried to interpret the information given in their favour. I can’t second guess him on what he ate 50 years ago”
Attached to Ms Stacy’s second report (exhibit #R1) is an article which points to a figure of +/- 50% variance in long term dietary recall. During her oral evidence Ms Stacy agreed that this level of variance would apply to anyone trying to analyze the dietary survey.
Dr English also refers to this issue in her scientific report (page 110 – 111 of the ‘T’ Documents)
“The validity of a recalled dietary history is very much dependant on the individual memory…” “…These problems lead to inaccuracies in the recall of amounts and kinds of foods eaten, such as correlation between the reported diet and the actual diet may be quite poor….”
Dr English then extends this in relation to the veteran Mr John Dunn in her first nutrition report on (page 286 of the ‘T’ Documents) (emphasis added)
“However two of the three validation tests consistently showed an under-reporting of food intake in the pre-service period …” “… and an over-reporting of food intake in the post-service period…”
Which supports the article supplied by Peggy Stacy.
Ms Stacy in her oral evidence referring to the use of a medium potato stated that she felt the size should be 100g, but generously gave John an amount of 127g. Although when directed to page 460 of the ‘T’ Documents was surprised that in their 1989 amendment the Food Composition tables of Australia listed the size of a medium potato at 145g.
Janine Lewis in her analysis of World War 2 Ration Scales on page 173 of the ‘T’ Documents identifies a difference in the meat product values from 1930s to the 1980s:
“Of particular note was the finding that mutton separable lean of the 1930s contained 6g/100g edible portion more fat than lamb separable lean analysed in the 1980s. Similarly beef lean and separable fat of the 1930s contained about 6g/100g edible portion more fat than the beef 50 years later.”
Ms Stacy only completed an analysis of the pre-service diet.
For the service diet, the scientific report by Dr English (page 149 of the ‘T’ documents Attachment 3, 1st paragraph). states in first sentence:
“Sample diets of individual foods and quantities consumed were prepared from each of the service rations to provide a basis for the analysis of the rations”.
Dr English’s First Nutrition report on Mr John Dunn does not refer to his dietary submission at all for his operational service diet but bases the analysis on the above identified ‘sample diet’ (page 278 of the ‘T’ documents paragraph 2):
“This analysis represents the daily level of animal fat in grams per head, based on the Standard Ration and System of Messing for ships not Victualled on the General Messing System”.
No analysis of a daily diet is provided for John’s first period of operational service (1947 – 1951) although a figure of 114.8g/hd/day based on the sample diet is given on page 278 of the ‘T’ documents. The figure of 108.8g/day, also based on the sample diet and used by the Respondent is given on page 280 of the ‘T’ documents this figure includes an allowance for extra rations for John’s second period of operational service in Korea.
Therefore the service diet referred to by the respondent (page 10 paragraph 3.4 of their reply)
“…the Veteran’s RAN diet during service (including his operational service) as involving the consumption of 108.8 grams of animal fat per day…”
Refers to John’s operational service diet in Korea, is based on a sample diet prepared from available ration scales, and bears no relation to the actual consumption of food by the late Veteran, Mr John Dunn, during his first period of operational service.
Our concern over using a figure for food availability is like saying that a Sizzlers Restaurant provides a healthy diet based on the number of people who eat there and the type of menu they provide. This does not account for individual diner preferences, e.g. one diner may choose just the salad bar and eat only salads and another diner may choose to have only the steak and chips. On average they both had healthy meals with moderate animal fat content, the reality is somewhat different.
No analysis has been provided of John’s actual food consumption during his military service including operational service. The respondent suggests that the Tribunal should rely upon a sample based analysis of what should have been available for the Veteran to eat.
If a figure must be relied upon for actual food consumption during operational service, the only figure that could be utilised in relation to the late veteran, John Dunn, is his post service figure of 224.8g/day (subject to identified constraints). This is the only analysis of any actual food consumption. John identified that the (RAN) diet he had become accustomed to from his operational service and continued in his non-operational service was what he consumed in his post RAN diet(Page 69 of the ‘T’ Documents):
“On discharge I insisted that I continue this diet to which I had become accustomed until January 1984 when it became widely accepted that this was not a healthy diet.”
The post-service diet as supplied on the Diet Survey has the same lack of detail as the pre-service diet, therefore any analysis of the post service diet, especially for energy content, has the same limitations as those imposed on the pre-service diet.
There has been no correction or allowance to the appropriate time periods for the foods analyzed or the portions attributed. There is a large memory recall factor for dietary surveys. There was no reference back to the veteran for a ‘reality test’. Combined together these limitations indicate that the scientific method of ‘inference’ appears to have been used as the basis of these calculations and subsequently the opinions based upon them. We respectfully suggest that the evidentiary weight to be placed upon an inference is contained in Caswell v Powell Duffryn Associated Collieries 3 (1939):
“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish… But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
If the dietary survey analysis must be utilized, as a minimum, the following modifications should be considered:
Pre-service diet analysis:
Animal Fat Content: +/- 50% variance = between 21.1g/day to 63.3 g/day.
Energy Content: Speculated due to incomplete details provided
Therefore a greater than +/- 50% variance.
Service Diet:
Animal Fat Content: Not analysed - food availability average only provided.
Energy Content: Not analysed - food availability average only provided.
Post-service diet analysis:
Animal Fat Content: +/- 50% variance = between 112.4g/day to 337.2 g/day.
Energy Content: Speculated due to incomplete details provided
Therefore a greater than +/- 50% variance.
As identified in our previous submission (paragraph 12), a more reliable factor for determining the increase in animal fat is the increase from one animal fat content meal per day pre-service, changing to up to 3 animal fat content meals per day in operational and post-operational service a change of between 50% to 100% in animal fat content. The meal composition and type as provided by the veteran has never been challenged, just the energy content of one incomplete dietary survey. Alternative theories or evidence to indicate he had other than the specified types of meals has not been brought forward by the respondent.
The respondent refers to no evidence of weight gain or weight loss as apparent in the evidence. We consider this the major issue with a single analysis being used for large periods of time. How do you complete a questionnaire for a period of 6 years or a period of 37 years. To bring the analysis to a single point of reference ignores so many factors. Joining the Military during a time of world conflict and entering directly into operational service is not going to be sedentary. The level of fitness required for initial training and then operational service would make civilian life, even in the 1940s, look like a casual stroll in a park. This increase in fitness would change the appetite, the more you exercise the more you want to eat. You do not have to cook or prepare your food or even clean up afterwards. You are provided with items such as eggs, bacon, toast, baked beans, fried tomatoes and so on and this is just for breakfast. Not to mention moving from the mild climate of Western Australia to being confronted with the icy chill of Mornington in Victoria and then living in a tin can floating on the water where the temperature of the water is what regulates the temperature of your living quarters.
There is some evidence that John commenced putting on weight after his operational service, but from there, very little in the manner of weights were taken of John. A lot has been made of John’s weight on discharge and the minimal increase between that and enlistment but please remember that John spent his last two years of Naval service aboard the HMAS Queensborough in the tropics, changing from cold to warm to hot climates will affect a persons weight over time and two years is sufficient to impact a persons weight.
The respondent is also trying to make a distinct link between animal fat and weight gain / loss which is rather simplistic, not necessarily correct and is not directly stated in any of the documentation associated with this case.
The Respondent states that “The evidence also strongly points to a finding, beyond reasonable doubt, that any such increase, if it occurred, in the Veteran’s animal fat consumption occurred solely by reason of his own voluntary choice and was not related to …his operational service.” (Respondent’s reply to applicant’s submissions, paragraph 3.20). Neither the respondent nor by virtue of their analyses, Dr English or Peggy Stacy, have provided any evidence or opinion on this matter to contradict the evidence of John Dunn.
The respondent agrees with the hypothesis and that the hypothesis is reasonable (Respondent’s reply to applicant’s submissions, paragraph 3.6) “Therefore, the abovementioned raised hypothesis, connecting the Veteran’s malignant neoplasm of the prostate with the circumstances of his operational service, is a reasonable hypothesis.”
Analysis
39. As can be seen, the written submissions provided by the parties were extensive and covered much ground.
40. The Tribunal has carefully considered the submissions provided by the parties. The Tribunal is satisfied, however, that the resolution of this matter rests with whether or not the “the reasonable hypothesis” advanced on behalf of the applicant can be accepted having regard to the factual foundation upon which it rests.
41. The foundation of the applicant’s “reasonable hypothesis” is what the veteran wrote as his pre-service diet. The opinions of Dr English and Ms Stacy are to the effect that, “beyond reasonable doubt”, what the veteran wrote not an accurate statement (or near accurate statement) of his pre-service diet.
42. In particular, in her report, Dr English wrote as follows “it is physiologically impossible and beyond any reasonable doubt (sic) that the veteran was losing an excessive amount of some 70kg of his body weight every year on his pre-war diet of 42.1g animal fat and daily energy intake of 7,669kJ. The only scientific explanation for the large variation between the veteran’s pre-service energy intake and his energy requirement is that the pre-service diet return for Mr Dunn is clearly invalid, unacceptable as a record of the veteran’s diet before enlistment, and significantly under-reports his true food intake Dr English also noted that the information provided by the veteran in connection with his disability pension claim did not contain sufficient detail to permit an analysis of his daily intake of animal fat and energy during that period.
43. A full analysis of Dr English’s first report is set out [32]-[36] of the second AAT decision, which I respectfully adopt.
44. Notwithstanding the purpose of adjourning the hearing of the application, the applicant did not seek to have Dr English made available so that she could respond to the various criticisms initially sought to be made of her reports and opinions. There is nothing that the Tribunal has heard or read which causes it to conclude other than that Dr English’s opinions, ought be accepted unreservedly.
45. Indeed, the opinions expressed by Dr English are supported by the opinions expressed by Ms Stacy.
46. The evidence before the Tribunal leads compellingly to the conclusion, beyond reasonable doubt, that what the veteran wrote as being his pre-service diet was not correct. Once that position is reached, then the foundation for the applicant’s “reasonable hypothesis” falls away. Accordingly, unless an alternate “foundation” can be laid upon which the “reasonable hypothesis” can be based, the decision under review must be affirmed.
47. There is nothing arising out of the questioning of Ms Stacy or any other material before the Tribunal (including the applicant’s detailed written submissions) that enables an alternate foundation to be laid. In short, the information provided by the veteran was so incorrect that it is not possible to make a finding based on any of the evidence before the Tribunal (including the expert evidence), on the basis of the balance of probabilities, as to what the veteran’s pre-service diet actually was. Without any such finding, it is not therefore possible to conclude that there was an increase in animal fat consumption by at least 40% as a result of the veteran’s relevant service.
Result
48. The Tribunal therefore finds that the veteran’s death was not related to his service and that the reviewable decision must thus be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed:…(sgd) T Freeman……………
AssociateDates of Hearing 16 February 2011 and 27 June 2011
Date of Decision 15 December 2011
Counsel for the Applicant on 16 February 2011 Mr R Hooker with Ms E Wong
Solicitor for the Applicant on 16 February 2011 Legal Aid Commission of Western Australia
Representative for the applicant on 27 June 2011 Mr S Dunn
Counsel for the Respondent Mr J Wallace and Ms T Ling
Solicitor for the Respondent Australian Government Solicitor
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