Dunn and Repatriation Commission
[2005] AATA 510
•2 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 510
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/391
VETERANS' APPEALS DIVISION ) Re DAWN ELEANOR DUNN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date 2 June 2005
PlacePerth
Decision The Tribunal sets aside the decision under review and in substitution for it decides that the late Mr Dunn’s “malignant neoplasm of the prostate” was war-caused. Date of effect of the decision is 20 December 2001.
The Tribunal makes a direction that the respondent now considers the implications of this decision with respect to determining the appropriate pension entitlements for Dawn Eleanor Dunn.................[Sgd].........................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – malignant neoplasm of the prostate – war-caused death – reasonable hypotheses – facts associated with the hypothesis necessary to support the hypothesis or which are inconsistent with the hypothesis and proof beyond reasonable doubt – expert evidence: evidentiary weight to attach to mathematical (predictive) models – expert evidence: inferences on dietary intake
Veterans’ Entitlements Act 1986
Roberts v Repatriation Commission [2002] AATA 351
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Whetton (1991) 24 ALD 690
Dixon v Repatriation Commission (1999) 29 AAR 235
Caswell v Powell Duffryn Associated Collieries 3 (1939) All ER 722
Lawrence v Kempsey Shire Council (1995) 87 LGERA 49
Mason v Repatriation Commission [2000] FCA 1409
Kattenberg v Repatriation Commission [2002] FCA 412REASONS FOR DECISION
2 June 2005 Dr EK Christie, Member 1. This is an application by Dawn Eleanor Dunn to review a decision of the Veterans’ Review Board (“the VRB”) made on 3 September 2003 which refused to accept that malignant neoplasm of the late veteran was war-caused.
2.In arriving at its decision, the VRB concluded that it was:
“…of the opinion that the material [did] not raise a reasonable hypothesis within the meaning of subsection 120(3). 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 malignant neoplasm of the prostate was war-caused.”
3. At the hearing, Eleanor Dunn was represented by Mr R Grayden, Solicitor. The Repatriation Commission was represented by Mr C Ponnuthurai, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. The late Mr Dunn was born on 1 November 1929 and served in the Royal Australian Navy from 12 July 1947 to 11 July 1959. His periods of operational service which constituted eligible war service were:
§ 12 July 1947 to 30 June 1951 (World War II); and
§ 2 November 1953 to 16 July 1954 (Korea).
6. In October 1994, Mr Dunn had an estimation of prostatic specific antigen, which was found to be raised (T4, Folio 75-76). Prostatic biopsy showed that he was suffering from prostate cancer (T4, Folio 78-79). Mr Dunn underwent radical prostatectomy and at operation was found to have an aggressive cancer with secondary deposits (T4, Folio 88). Although the condition was treated with hormonal manipulation and orchidectomy, it eventually worsened and Mr Dunn died on 15 June 2003.
Issues to be Decided
7. Whether the death of Mr Dunn in June 2003 arising from malignant neoplasm of the prostate;
(a)arose out of or was attributable to; or
(b)was contributed to in a material degree or aggravated by the particular circumstances of Mr Dunn’s operational service.
8. At the commencement of the hearing both parties acknowledged that there was no dispute that the first 3 steps of the “Deledio Methodology” were satisfied. That is:
§Step 1: The material before the Tribunal points to a hypothesis that connects the death of Mr Dunn with the circumstances of his operational service.
9. The hypothesis advanced by the applicant was that operational service increased fat intake ž the increased fat intake being maintained during the post-operational service ž malignant neoplasm of the prostate ž death.
§ Step 2: Whether an SoP was in force
10. It was agreed by the parties that the “Malignant Neoplasm of the Prostate SoP” No 84 of 1999 [as amended by No 69 of 2002] was the appropriate SoP and that Factor 5(c) of the former SoP was the relevant factor.
“Factors
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; or
Where at clause 8,
‘animal fat’ means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products: …”
§ Step 3: The hypothesis was a reasonable one
11. The parties were in agreement that the hypothesis advanced by the applicant was a “reasonable hypothesis”.
Evaluation of the Factual Evidence
12. The members of the late veteran’s family who provided witness statements for the Tribunal hearing (Dawn Dunn [the applicant] Exhibit A1), Simon Dunn and Ralph Dunn (sons of the late veteran) (Exhibits A2, A3), were not required for cross-examination by the respondent. The respondent called Dr Ruth English, a Nutrition Consultant, who had provided expert medical opinion in relation to dietary issues associated with this application for review (Exhibit R2, R3).
Examination of the Expert Opinion Evidence
§ Evidence of Dr Ruth English
13. Dr English prepared two expert reports in relation to the dietary aspects of the daily eating patterns of the late Mr Dunn during (a) the pre-operational service period; (b) the operational service period; and (c) the post-operational service period [Exhibit R2: 14 May 2004; Exhibit R3 (Supplementary Report) 31 August 2004].
14. In relation to the dietary issues raised by the applicant, Dr English’s opinion contained the following analysis and conclusions.
§ Pre-Operational Service Periods: Analysis of the Reported Daily Eating Program
15. Dr English first considered the correlation between the late Mr Dunn’s height and weight at enlistment, with his stated daily eating pattern prior to enlistment. Dr English made the following conclusions:
(a)During the pre-operational service period, the information provided for her analysis in relation to the daily eating pattern of Mr Dunn was consistent with published food frequency records for this period and reflected similar intakes of daily animal fat intake;
(b)That it was physiologically impossible and beyond any reasonable doubt that Mr Dunn was losing the 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 7,669 kJ. The only scientific explanation for the large variation between the veteran’s pre-service energy intake and his energy requirement was that the pre-service diet return for Mr Dunn was clearly invalid and unacceptable as a record of the veteran’s diet before enlistment, as it significantly under-reports his true food intake; and
(c)That the diet return for the veteran’s pre-service diet was invalid was further supported by a comparison of Mr Dunn’s diet with community food patterns and nutrient intakes as documented in the 1936-38 or 1944 national household dietary surveys.
(d)The kind of diet reported by the late Mr Dunn prior to enlistment in 1944 was not commensurate with his height of 5’ 11” and weight of 146lbs (66.4kg) at enlistment and his medical classification then as “fit for service”. The reason for this inconsistency arose because of the significant under-reporting and documented invalidity of the veteran’s pre-service diet reported in the “T” documents based on (a) comparison of the energy intake of this diet with an estimate of his energy requirement at this time and (b) a comparison with animal fat and energy intakes of adult males (including teenagers +13 years of age) in national surveys conducted in the era of Mr Dunn’s enlistment. These surveys were the 1944 national household survey of Australian civilians and the 1936-38 national household survey (Exhibit R2, pp 8,9).
§ Operational Service Period
16. In relation to any inference that could be established between the late Mr Dunn’s fat intake from his weight at discharge, Dr English concluded:
“...that the level of animal fat in Mr Dunn’s service diet of 108.8g per day was at a moderate level, and lower than the level of animal fat for an adult male civilian of 129.0g per day during World War 2, as reported in the 1944 national household dietary survey. As the reported pre-service diet of the veteran has been shown as invalid and significantly under-reported, the most appropriate animal fat intake to adopt for comparison with the calculated intake of animal fate in the service diet is the civilian documented intake of 129.0g, being consistent with his pre-service energy requirement. Thus there would have been a fall in Mr Dunn’s animal fat intake during service, based on an analysis of the authorized ration scale issues for RAN ships. The above conclusions are supported by the failure of the veteran to gain weight during his service period despite the sedentary nature of his occupation in service as an electrician compared to his pre-service occupation as a labourer.”
17.Based on these conclusions, Dr English drew the following inference:
“The animal fat level in Mr Dunn’s service is best described as moderate, maintaining his body weight at enlistment through his service period until his discharge. Also if the civilian level of animal fat intake in 1944 is adopted as the veteran’s pre-service intake (to replace the significantly under-reported and invalided intake of 42.1g), Mr Dunn’s animal fat intake would have decreased during his service period.” (Exhibit R2, pp12, 13)
18. Dr English considered the correlation between the late Mr Dunn’s weight gain after operational service and the information on his daily eating habits and diet provided to her by Mrs Dunn.
19. Dr English concluded that Mr Dunn’s weight gain after his service was not in keeping with the kind of diet that his wife reported that she provided for him. The energy level in this diet was markedly excessive compared to the estimate of the veteran’s energy requirement (with extra energy equivalent to a weight gain of some 45 kg per year), and both the animal fat and energy intake are also markedly in excess of food and nutrient intakes of Australian adult males in the 1980s and 1990s. The reason for these inconsistencies were clearly the significant under-reporting and documented invalidity of the veteran’s post-service diet reported in the “T” documents. An analysis of an authorised ration scale for RAN personnel “on ship” resulted in an intake of 108.8g animal fat per day, including the extra allowance for ship’s personnel in cold waters during the Korean War. This level of 108.8g per day was lower than the daily intake for civilian adult males of 129.0g animal fat in 1944 (Exhibit R2, p18).
20. In arriving at this conclusion, the following matters were considered by Dr English to be relevant:
(a)the variations between the information given in the DEP (“Daily Eating Pattern”) and the FFR (Food Frequency Record) would reflect some difference in intake of animal fat from the FFR compared to that from the DEP. As there is reasonable consistency for the other foods listed in the return, and the level of animal fat intake is considered high (224.8g/day), the agreement between the information given in the DEP and FFR is considered acceptable; and
(b)that it was most improbable and beyond reasonable doubt that Mr Dunn was gaining the excessive amount of 45kg every year on his post-service diet of 224.8g of fat per day and 17,357 kJ per day. The only scientific explanation for the large variation between the veteran’s post-service energy intake and his energy requirement is that the post-service diet return for Mr Dunn provides an over-reporting of his actual intake. The information provided in the diet return is clearly invalid and unacceptable as a record of the veteran’s diet during his post-service period.
§ Changes in Animal Fat Intake: Pre-Operational Service - v - Operational Service Period
21. Dr English concluded that, based on the information and evidence she reviewed and subjected to scientific analysis, there was no support for “the proposition that Mr Dunn’s animal fat intake increased by at least 40 per cent, though considered to have reached at least 70g per day”. (Exhibit R2, p 10)
§ Whether Consumption Levels Post-Service Remained at 70g/d or Greater
22. Dr English concluded that Mr Dunn’s consumption of animal fat during the post-service period would have remained at 70g per day or above for at least the required minimum period of 20 years (Exhibit R2, p 20).
§ Supplementary Report (Exhibit R3)
23. In her supplementary report (Exhibit R3), Dr English reviewed and analysed, additional information on the daily eating patterns of the late Mr Dunn during pre-service, service and post-service periods. This information had been provided to her by the family of the late Mr Dunn.
24. Dr English stated that, accepting this information as a true and honest assessment of the late Mr Dunn’s activity levels, changes were made to the late veteran’s activity level for the (a) pre-service and (b) post-service periods. Consequently, she then re-estimated the energy requirements for these two periods. However, it was her opinion that:
“These re-estimates did still convincingly show a major under-reporting of the veteran’s pre-service diet and an over-reporting of his post-service diet. This conclusion was based on irrefutable and powerful scientific principles of physiology and energy exchange. The classification for the diet return for both pre-service and post-service periods therefore remained invalid.”
Submissions and Contentions of the Parties
25. Mr Grayden submitted that the calculation of the late veteran’s fat consumption prior to service as being in the region of 42-43 grams of animal fat per day was supported by the findings of Dr English in her first report in which she stated that her calculation of the late veteran’s pre-service animal fat intake was of the same order as the applicant’s calculation of the veteran’s pre-service diet.
26. Mr Grayden contended that general survey evidence, such as evidence of Dr English in her report “Animal Fat in the Australian Diet including the Armed Services’ Rations in World War 2: Scientific Review for Department of Veterans’ Affairs (August 1998) and its attachments” (T20), should not be used when specific information, as supplied by the late veteran was available. It was his contention that should the Tribunal accept the evidence of the late veteran, the applicant and the applicant’s son, it would be inappropriate to reject that evidence in favour of evidence extracted from general surveys.
27. Mr Grayden submitted that there were limitations in the two expert reports prepared by Dr English, which in turn limited some of the conclusions she had made. As an example he referred to her conclusions that the late Mr Dunn could not have survived on his pre-service diet as indicated in his survey. It was his submission that Dr English’s assumptions were based on the only other evidence available to her, being the nutritional surveys that were completed in 1936-38 and 1944. In addition that, Dr English’s calculations were based on Schofield equations - equations which have been described as a useful tool for providing a rule of thumb in a dietician’s diagnostic process and which may be especially useful in working with a person with a possible dietary problem. However, he contended that its generalised conclusions seem ill-adapted to arriving at any sort of definitive position in a matter where the evidence of food consumption was indefinite: see Roberts v Repatriation Commission [2002] AATA 351 at 76.
28. Mr Grayden submitted that it was also significant that Dr English had never examined the late Mr Dunn or obtained any independent advice from the late veteran – apart from the surveys. Moreover, that her conclusions were based on generalities rather than the specific circumstances relevant to the late veteran.
29. It was his contention that the approach of Dr English was to conclude that the late veteran’s dietary survey was invalid. To then rely on the “average” civilian diet for the period as the measure of the late Mr Dunn’s level of consumption, was a conclusion that was totally at odds with the other evidence provided by the veteran in respect of his lifestyle, his economic and social circumstances and his own recollection. For example, the evidence before the Tribunal was that the veteran came from an underprivileged background in which his diet was severely restricted due to his personal circumstances.
30. Mr Grayden submitted that findings on energy consumption did not necessarily correlate with fat consumption. He referred to the raised facts that there was an increase in consumption of animal fat during the late veteran’s period of service and that the late veteran continued that increased level of fat consumption post-service. Furthermore, he submitted that there was no evidence before the Tribunal that corroborated any conclusion that the “average civilian diet” can be directly applied to the late veteran’s factual situation in terms of his daily eating pattern. It was his contention that the Tribunal would have to be satisfied on the evidence before it that the late Mr Dunn was an average consumer. Otherwise, it was an error to accept the findings of Dr English that the civilian diet and levels of animal fat consumption were appropriate and applicable to the late veteran’s pre-service diet.
31. Furthermore, such a finding was also contrary to the evidence that the late Mr Dunn’s diet post-war did not return to the civilian diet, but was maintained at the service diet levels.
32. Mr Grayden submitted that the “averages” relied upon by Dr English were simply averages and that any generalisation derived from an average cannot be applied to an individual with any accuracy.
33. Mr Grayden referred to the applicant’s factual evidence before the Tribunal; that the background of the veteran was that of a low income person, his parents had died; that he boarded with a bachelor who was a cleric; that the cleric was on a stipend of less than the average wage. Accordingly, Mr Grayden submitted that it was highly unlikely that the veteran’s diet could in any way be considered to be average. Moreover, the veteran’s own evidence was that his diet improved and his consumption of animal fat increased on enlistment in the Navy.
34. Accordingly, Mr Grayden submitted that a preference for animal fat was maintained as a result of the late Mr Dunn associating that diet with the environment he experienced in the Navy.
35. Mr Grayden concluded with the contention that Factor 5(c) of the SoP did not require the veteran to develop a taste for fat – simply for an increase to occur and where that increase occurred – whether that increase was more or less than the civilian diet. Furthermore, he submitted that although there was no evidence that consumption of animal fat was not the subject of an addiction, it was the evidence of Dr Kenardy that there were physical, psychological and emotional factors which operate to determine a person’s dietary preference and ingestion. The factors special to war service include separation from normal life for periods of years; periods of panic; of fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. Consequently, a narrow and obsessive focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war was considered appropriate.
36. Mr Grayden concluded with the following submissions that challenged the weight to be given to the scientific analysis that was the foundation of Dr English’s expert opinion:
(a)that Dr English had relied on scientific inferences to dispel the reasonable hypothesis;
(b)whilst acknowledging that a “very objective and scientific approach had been used” to evaluate the late veteran’s dietary information that had been provided to her, Dr English’s conclusions had inherent inaccuracies because of a reliance on “generalised dietary surveys” within the community;
(c)that the generalised dietary surveys upon which Dr English had based “simple averages” may not necessarily be extrapolated to specific individuals. To do so, raised the issue of speculation as a reliance on an average failed to take into account individual variation;
(d)that there was other evidence before the Tribunal with respect to the late veteran’s dietary information in the history detailed by the late veteran over time – as well as the evidence of his wife and his son (Simon); and
(e)that Dr English had relied on generalities to a situation where there was specific information on the late veteran’s dietary intake.
37. Mr Ponnuthurai submitted that there was very little information on fat intake by the late Mr Dunn, prior to operational service other than a dietary report prepared by Mr Dunn (T10, 20 March 2002) and a “Dietary Survey” supplied to Dawn Dunn (the applicant) by the late veteran (T19, 21 February 2003).
38. Mr Ponnuthurai stated that all this information, and additional information provided by the late veteran’s family had been considered by Dr English in preparing both of her expert reports.
39. Mr Ponnuthurai contended that the pre-service dietary fat intake relied upon by the veteran in his lifetime and maintained by him was biologically untenable; the veteran would not have had sufficient caloric intake to grow or to undertake normal physical exercise. Dr English had expressed the opinion that the claimed food intake was not only inaccurate but also was a starvation diet.
40. Mr Ponnuthurai submitted that there was little dispute in the evidence and information before the Tribunal as to the fat intake levels of Mr Dunn during his 4½ years of operational service.
41. It was Mr Ponnuthurai’s contention that the Tribunal should accept Dr English’s expert opinion in relation to her conclusions as to pre-service fat intake, fat intake during service and fat intake after service. Furthermore, he contended that it was more appropriate to apply the “average fat intake” values to accept that the only source for determining dietary fat intake in the factual circumstances of the late Mr Dunn were the published pre and post-war surveys.
42. Mr Ponnuthurai submitted that Dr English had analysed the daily eating patterns of the late Mr Dunn during the post-operational service period. She had concluded that the very large projected weight loss that had been calculated based on her mathematical analysis using a standard “nutritional predictive [mathematical] model” had not occurred. Accordingly, this discrepancy in “actual weight” compared with the “predicted weight” of the late veteran was attributed by Dr English to flaws in people’s recollections of their dietary intake i.e. unreliable recollections.
43. Mr Ponnuthurai submitted that while the 20 year factor needs to be fulfilled for the applicant’s case to succeed, operational service would need only to make a substantial contribution to the 20 years of increased fat consumption. Moreover, he acknowledged that the late Mr Dunn’s 4½ years of operational service would have made a “significant contribution” to achieving the SoP threshold for total fat intake over a 20 year period.
44. However, Mr Ponnuthurai concluded with the submission that there was no evidence or information before the Tribunal to establish that the late Mr Dunn experienced a 40% increase in dietary fat animal fat arising from his operational service.
45. In addition, it was his submission that it was untenable to accept the new evidence related to daily food intake and contained in the witness statements tendered at the hearing (Exhibits A1, A2, A3 – the applicant and her two sons, respectively) and the unsourced Table in the “T” documents, raised by the applicant whilst cross-examining Dr English[1].
[1] This Table was made subject to a Tribunal Direction during the hearing on 14 February 2005.
Supplementary Submissions
46. Supplementary submissions in response to the Tribunal Direction were filed by the applicant (6 May 2005) and by the respondent (11 March 2005, 21 March 2005, 29 March 2005 and 12 April 2005). The respondent elected to not reply to the submissions filed by the applicant on 6 May 2005. The specific questions on which the Tribunal sought a response from the parties related to (a) the underlying assumptions and (b) the validation of the output (or predictions/calculations) of the mathematical model i.e. the Schofield energy equations, to estimate basal metabolic rate. Further issues arose which related to the use of basal metabolic rate in the factual circumstances of Mrs Dunn’s application for review.
47. In her response, Dr English (for the respondent) stated that:
“The Schofield equations were first adopted for international use as energy recommendations of the Food and Agriculture Organization (FAO) and the World Health Organization (WHO) in 1985, and referenced to a background validation paper by Schofield [1985]. In this paper Schofield published predictive equations for BMR, based on 114 published papers, representing 7,173 data points. This database was described as the largest and most comprehensive analyses of independently acquired data on BMR measurements to date in 1996 by Shetty et al.”
48.Dr English continued her response with the following statement:
“The National Health and Medical Research Council has adopted the FAO/WHO recommendations with use of the Schofield equations for energy recommendations for Australians, based on a major review paper by Dr Penny Warwick [1990] in which she provided validation, inter alia, for the adoption of the FAO/WHO recommendations, including the application of the Schofield equations.”
49. Dr English then referred to more recent work on the use of predictive equations for energy expenditure and concluded:
“The report of the Joint FAO/WHO/UNU Expert Consultation on Human Energy Requirements was published in October 2004. During the consultation, the issue of predictive equations for energy expenditure was intensively researched with new predictive equations derived from a database with broader geographical and ethnic representation. The new predictive equations and those of 1985 were compared with published measurements of BMR in adults from different parts of the world, which were not part of the previous databases used to generate the predictive equations…Although the new equations had some merits, the consultation concluded that they were not robust enough to justify their adoption. For the present, it was decided to retain the equations proposed in 1985 by Schofield, because of their enhanced precision and robustness…”
50. Dr English concluded her response on this issue with the following statements:
(a)“I have emphasised the above determinations re the issue of a recommended predictive equation for BMR, as these reports have reviewed in detail the evidence for the validation of the energy prediction equations against actual measurements of BMR. The FAO/WHO established an extensive data base of BMRs in 1985, to develop predictive equations for energy expenditure. This database was extensively upgraded for the FAO/WHO/UNU Expert Consultation on Human Energy Requirements with continuing endorsement for use of the Schofield predictive equations.”; and
(b)“Because of the general and widespread acceptance of international nutrition recommendations from the United Nations expert bodies (FAO, WHO and UNU) and national recommendations from the NHMRC, I was surprised at the questioning on validation of the recommended predictive equations with my resultant response unfortunately generating some confusion.”
51. The supplementary report of Dr English contained an extensive Bibliography containing all references cited in her report. In addition, copies of key articles cited in her report [Warwick (1990); NHMRC (1991); FAO/WHO/UNU (2004)] were annexed to her report. A copy of the Schofield (1985) article titled “Predicting Basal Metabolic Rate, New Standards and Review of Previous Work” was also provided to the Tribunal.
52. In response to issues related to the “Frequency Distribution Table for Consumption of Fact for an ‘Adult Male’ in the 1936-1938 Survey of Domestic Food Budgets”, the conclusions of Dr English can be summarised as follows:
(i)“The sample of mean daily intakes of fat for households in Perth is not a random sample from the sample infinite populations from which samples of the same variable have been drawn for these other capital cities. This then limits the comparisons across State Capitals. Also, the reporting of a standard deviation of 44.06g for a mean intake of 137.36g of fat per ‘adult male’ in Perth [mean fat intake + 32% SD] indicates the wide distribution of intakes from a statistical consideration.”;
(ii)“The findings of the Advisory Council on Nutrition concerning under-nutrition in the returns from the Perth households, that 27 (from an earlier number of 57 suspect diets in Perth) were not capable of adequately and desirably nourishing an ‘adult male’. It is concluded that Mr Dunn’s recalled diet of 42.1g animal fat and 7,669 kJ (1,388kcal)[2] would have fallen within these inadequate diets.” [Tribunal emphasis]
[2] 7669 kJ is equivalent to 1826 kcal not 1388 kcal (4.2 kJ = 1 kcal) [Tribunal observation]
(iii)“Comparison of Mr Dunn’s re-called energy intake of 7,669 kJ to the threshold for under-nutrition (3,000kcal/12,500 kJ), established by the Advisory Committee allows an evaluation of the veteran’s pre-service diet in terms of his nutrition status. The daily deficiency of 4,830 kJ is calculated as a weekly deficiency of 33.810 kJ, incurring a weekly weight loss of 1 kilogram (i.e. up to 50kg per year).”; and
(iv)As the veteran’s usual energy intake in his daily diet in the pre-service period, this low and inadequate diet is in conflict with, and completely negated by the findings recorded in his medical report at enlistment, that Mr Dunn was fit for service in the Seaman’s Branch of the Royal Australian Navy. The veteran’s weight and height were recorded on his medical form as 10 stone 6 lb (66.4kg) and 5’11” (180cm), with a calculated body mass index (BMI) of 21.5. Mr Dunn’s then BMI was within the healthy weight range. My conclusion is that it would be impossible for the veteran to be on a usual daily diet of 7,669 kJ and 42.1g of animal fat during his pre-service period and then present at enlistment as fit for sea-service with a BMI within the healthy weight range (18.5 to 25, as recently defined by the World Health Organization).”
53. Mr Grayden (on behalf of the applicant) responded to the four further documents and reports of Dr English, filed by the respondent after the hearing.
54. Mr Grayden submitted that the expert reports prepared by Dr English for the Tribunal hearing in February 2005 did not have access to the full “1936-1938 Survey of Domestic Food Budgets” so that none of her reports had been based on this 1936-1938 survey document in its entirety. Accordingly, there would have been limitations in her conclusions based on the 1936-1938 survey.
55. Whilst Dr English’s opinion related Mr Dunn’s recalled energy intake of 7,669 kilojoules to the threshold for under-nutrition of 3000 kcal/12,500 kJ for the pre-service period), Mr Grayden submitted that the 1936-1938 survey stated that the adopted standard of 3000 calories was very much higher than that adopted in any inquiry of which the League of Nations was aware.
56. Mr Grayden submitted, based on the 1936-1938 survey, that for a number of Type IIa diets in Perth, 30 out of 310 families (a 9.7% of the population) – although below the standard of 3000 kcal, were capable of adequately and desirably nourishing the adult male without noticeable physiological effects. Based on Perth’s population at the time, 9.7% of the population, equates to approximately 16,500 adult males as derived from the Year Book figures that were filed with the Tribunal as Exhibits.
57. Accordingly, it was Mr Grayden’s contention that, given the reference to Type IIa diets, and the adoption of a high standard of 3000 kilocalories by the Advisory council, Dr English’s calculations of likely weight loss were unlikely; moreover, that subliminal diets of lessor caloric value, specifically Type IIa diets, were capable of adequately and desirably nourishing the adult male without noticeable physiological effects. He contended that the veteran maintained such a diet.
58. Mr Grayden referred to Dr English’s first Nutrition Report on the appeal of Ms Dawn Eleanor Dunn to the Administrative Appeals Tribunal [AAT Reference: N2003/391] which indicated that an animal fat content of 42.1 grams of animal fat and an energy content of 7,669 kJ (equating to 1,832 kcal) fell within the lower range of the Type IIa diet.
59. Mr Grayden submitted that any degree of uncertainty concerning the degree of accuracy of Mr Dunn’s record of food intake in the pre-service period would prevent the Tribunal from disproving the reasonable hypothesis beyond reasonable doubt.
60. Mr Grayden relied on the following published scientific materials provided by, and referred to, by Dr English in her supplementary expert reports/submissions to address the issues associated with BMR:
(a)“At an individual level the margin of error must inevitably be high because the methods used to operationalise the global concept confound separate effects which are themselves known to participate in a complex relationship with sex, age, anthropometric indices and possibly also body history. At the level of predicting the mean BMR of a group of subjects, or for example the same weight, or approximately the same weight, and homogenous in other relevant ways, this may not matter too much. But even in these circumstances, informed and cautious judgment seems essential if the predictive measures developed in these, or in similar, an analysis are to be usefully employed.” [Source: “Human Nutrition; Clinical Nutrition 1985 39C Supplement 1, 5-4L, W N Schofield at page 28, paragraph 2”]
(b)“Despite potential problems related to innate individual variation, this is the method adopted for determining the present RDI’s. It must be noted that behavioural, physiological or metabolic adaptation may influence energy expenditure.” [Source: Schofield (1985)]
(c)“Recommendations for energy intakes differ from those for nutrients…there is wide inter-individual variation in the behavioural, physiological and metabolic components of energy needs and the average energy recommendations for a group cannot be applied to individuals who differ from the group average in age, body size, sex, activity level and possibly other factors.” [Source: Schofield (1985)]
(d)“However, it must be recognised that estimates of food energy requirements obtained by this method are only approximate, especially for individuals in whom variations in energy requirements can be very large, even in individuals of the same age, sex and body weight, and apparently similar levels of activity.” [Source: Appendix 2 to the NHRMC Report in which the application of the equation to an individual is again qualified in respect of the 10-18 year old age group.]
(e)“Schofield Equations are the best estimates currently available for predicting BMR in healthy people, although the use of large age ranges does cause problems when predicting BMR in subjects in the upper and lower ranges of each of the age groups.” [Source: See Warwick (1990) Predicting Food Energy Requirements from Estimates of Energy Expenditure]
61.Based on these scientific articles on BMR, Mr Grayden submitted that:
(a)applying the Schofield equations to individuals introduced a high margin for error;
(b)the limitations of the Schofield equations were fully apparent to the NHMRC and should only be used at a group or institutional level – rather than an individual level;
(c)the Schofield Equation was a useful diagnostic tool for use in clinical situations within the limits as identified above. The equation should not be used to analyse a specific individual’s energy expenditure, particularly in a situation of Mr Dunn’s IIa diet as specified in the 1936-1938 survey. Such use of the Schofield Equation would result in a high degree of error; and
(d)the calculation for the late Mr Dunn was based upon his height and weight at 17 years and 7 months, which was at the high end of the 10-18 years age range. Moreover, predictive equations were no substitute for actual measurements when these could properly be made for individuals.
62. Mr Grayden further submitted that the recommended dietary intakes [“RDIs”] should be used as a guide only and were not determinative of individual requirements. RDIs did not apply to group needs.
63. Mr Grayden concluded with the submission that personal knowledge of an individual should be obtained before applying the Schofield equation to that individual. He submitted, that in this case, Dr English had no personal knowledge of the late Mr Dunn and it was inappropriate to apply the equation to his individual circumstances.
Statutory Requirements and Legal Principles
64. Section 120(1) of the Veteran’s Entitlement Act 1986 provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, “the Commission shall determine … that the injury, disease or death of the veteran was war caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
65. Section 120(3) of the Veteran’s Entitlement Act provides that in applying subsection (1), “the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person”.
66. Following the introduction of Statements of Principles, the Federal Court In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, eventually reached a position where it summarised four steps which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In this application for review, the final step [4] is the only step in dispute between the parties:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
…..
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.” (emphasis added).
67. The following legal principles are relevant with respect to the Tribunal’s consideration of step 4 of the “Deledio methodology”.
(a)In Repatriation Commission v Whetton (1991) 24 ALD 690 the Full Federal Court held:
“(vi) The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide. It meant rather that the Tribunal must not abdicate its own function.
(vii) … the correct approach (s 120) was that a finding must be made in favour of an applicant unless the applicant’s case could be rejected beyond reasonable doubt or that the material before the Tribunal did not raise a reasonable hypothesis as required under the statute.” [emphasis added]
(b) With respect to the fourth stage defined in Deledio, Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at 242-2 stated:
“… As the Full Court said in Deledio it is only at the step 4 of the process that the Tribunal will be required to find facts from the material before it.”
(c) If a reasonable hypothesis is established ss 120(1) of the VE Act 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: See Byrnes v Repatriation Commission (1993) 177 CLR 564, at 571.” (Emphasis added)
68. Dr English has relied on the scientific method of “inference” to provide the basis for her conclusions. The common law of evidence that is relevant in any consideration of the weight to be placed on an inference is contained in the decision of LJ Wright in Caswell v Powell Duffryn Associated Collieries 3 (1939) All ER 722 at 733: -
“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.”
69. Furthermore, Dr English has relied on the Schofield equations [used in mathematical models] for predicting weight change and related dietary aspects for arriving at her conclusions on the dietary fat intake of the late Mr Dunn at different periods of time related to operational service. The common law principle in the decision of Young J in Lawrence v Kempsey Shire Council (1995)87 LGERA 49,is relevant in any consideration of the evidentiary weight to be placed on the predictions used in the mathematical model relied on by Dr English – specifically the predictions arising from the use of the Schofield equations:
“As to the scientist’s computer model of how Christmas Creek would behave under certain conditions; unless there is some factual evidence or satisfactory expert opinion evidence to support the assumptions fed into the computer, the result obtained from the computer has no evidentiary value.”
Consideration Of The Issues
70. The Tribunal has taken into account all of the oral and documentary evidence, the legislation and case law in exerting its decision-making powers. Furthermore, the Tribunal has adopted Deledio’s case in resolving the factual issues in dispute. The parties have acknowledged that only the final stage of Deledio (Stage IV) is in dispute.
Stage IV: Whether The Factual Evidence Before The Tribunal Discharges The Legal Standard of Proof
71. The central issue determining the outcome of this case is the energy expenditure and fat intake of the late Mr Dunn in the pre-service period. The respondent has conceded that there was little dispute in the evidence and information before the Tribunal as to the fat intake levels of Mr Dunn during his 4½ years of operational service.
72. For the pre-service period, the applicant relies on the diet survey completed by the late Mr Dunn before his death, as well as the additional evidence of the applicant and their children.
73. The respondent relies on the conclusions of Dr English that the late Mr Dunn’s dietary survey was invalid and seeks to substitute the evidence of the late veteran’s diet in the pre-service period with general survey information within the community on civilian diet. Dr English has undertaken a retrospective calculation [or prediction] of the late Mr Dunn’s dietary requirements/Basal Metabolic Rate (“BMR”); BMR is the largest component of daily energy expenditure. Dr English also relies on the method of inference to extrapolate from general community data on dietary/fat intake to the specific situation of an individual – the late Mr Dunn.
74. The Tribunal first considers the scientific evidence and information before it based on the underlying assumptions and use of a mathematical model [the Schofield Equations] to predict BMR for the late Mr Dunn in the pre-service period.
75. In estimating the late Mr Dunn’s energy requirements in the pre-service period, Dr English has used the following facts and assumptions (Exhibit R2):
o Age before service (within the range of 16 – 18 years);
o Pre-service weight 66.4 kg (calculated from weight of 147 lb on enlistment;
o Schofield Equation for males 16 – 18 years (assumed a constant value for the regression coefficient of 0.074)
i.e. (Mr Dunn’s weight x 0.074) + 2.754 = BMR;
o Activity level (the indicators of lifestyle description as a “labourer” - the late veteran was employed as a “cabinet maker”) as “heavy” and with a factor of “2.1” applied to the estimate of BMR.
o The recommended energy requirement for growth at age 16 – 18 years of age (2 kJ/kg body weight) was included.
76.The two equations relied upon in the mathematical model to predict BMR change for the late Mr Dunn in the pre-service period are based on 3 variables only: body weight, age (10-18) years and activity/energy expenditure (Exhibit R2). The equations relied on were:
(a)Pre-service basal metabolic rate/day = 66.4 x 0.074 + 2.754
… Equation 1
o This equation calculated the pre-service BMR as 7,668 kJ/day
(b)Energy requirement/day = 7,668 kJ x 2.1 = 16,103 kJ + 2 x 66.4
… Equation 2
o This equation calculated the energy requirement as 16,236 kJ/day
77. Equation 1 is a simple linear equation that predicts a constant, daily change (i.e. equal increments) in basal metabolic rate, over time, as a function of body weight over the entire time period that is the subject of the analysis, for the specific age group[3].
[3] See Warwick (1990) Table 1 p. 29 that confirms the actual numerical values for the regression coefficients used in Equation 1
78. Equation 2 incorporates a “correction factor” for activity/energy expenditure in which the predicted values from Equation 1 are adjusted/varied by a constant amount over the entire period that is the subject of the analysis.
79. The calculations from both equations used by Dr English give a result that the late Mr Dunn would have lost a constant amount of body weight (1.4 kg/week), each week, throughout the 12 month period – based on his diet survey details during the pre-service period.
80. The estimates (or predictions) from this mathematical model used by Dr English were:
“Allowing for the maximum coefficient of variation of plus or minus 10 percent documented in the literature for an estimate of an individual’s energy requirement, the pre-service energy requirement of Mr Dunn ranges from 14,612 to 17,860 kJ per day. Taking the lowest estimate of requirement of 14,612 kJ/day to advantage the application and to allow for any over-reporting of the activity factor, there is a daily deficit in energy intake of 6,943 kJ/day between this requirement and the calculated energy intake of 7,669 kJ. As the veteran’s regular pre-service diet, this deficit would result in a weekly deficit of 48,600 kJ. As noted above, the relative fixed nature of each individual’s energy requirement at a stable level of activity, means that a deficit of 48,600 kJ in energy intake results in a weekly weight loss of 1.4kg. This weekly weight loss would increase to a weight loss of some 70 kg per year over the pre-service period, i.e. more than Mr Dunn’s weight at enlistment.” (Exhibit R2) [Tribunal emphasis]
81. In determining the evidentiary weight to attach to this conclusion, the Tribunal considered the scientific articles/materials provided by the respondent in relation to the Tribunal Directions, and which were subject to supplementary submissions by the parties.
82. Firstly, there is no dispute that the Schofield predictive equations for BMR involved extensive analysis of data points involving different age groups and sexes.
83. The article by Schofield (1985)[4] contains the following statement (at p.15):
“The concept of the BMR of an individual is a difficult one in that global measurement involves the compounding of a variety of separate effects which are not consistent from one individual to another, nor within an individual, across changes in age and weight. It seems simplistic to model this situation as if it were a straight line effect bent to a curve by some further, consistently operating, factor or summary of factors. More complex models would be of scientific interest, but currently have no practical value above that of simple models.” [Tribunal emphasis]
[4] “Predicting basal metabolic rate, new standards and review of previous work” Human Nutrition: Clinical Nutrition 39C Suppl. 1, 5-4I
84. Moreover, Warwick (1990)[5] further qualifies the use of Schofield equations for predicting BMR from body weight, age and sex, stating “predictive equations are no substitute for actual measurements when these can be properly made especially for individuals and for obese or malnourished patients for whom the equations in Table 1 [i.e. the equation relied upon by Dr English] may not be appropriate”.
[5] Warwick PM. Predicting energy requirements from estimates of energy expenditure. In Recommended Nutrient Intakes Australian papers Eds: Truswell AS, Dreosti IE, English RM, Rutishauser IHE, Palmer N. Sydney: Australian Professional Publications, 1990.
85. Later, in her review and analysis of the “Application of Estimates of Energy Requirements to Individuals” (at p. 311), Warwick (1990) outlines factors which influence the accuracy of the predictions from the Schofield Equations to individual applications:
“However, predictive estimates are very much less accurate for individuals than for groups, and variations in energy expenditure can be large, even among apparently similar individuals.
BMR can be predicted to within about 2-3% of measured values in most healthy groups, but only to within about 10%, in most individuals. A few individuals also have BMRs which are outside the expected range (see section on BMR). Thus the actual BMR of two normal individuals of the same age, sex and body size could differ by 20%, or about 1.0-1.4 MJ/day for predicted BMRs of 5.0-7.0 MJ/day.
Variations in level or energy cost of physical activities, or in the thermogenesis, also contribute to difficulties in accurately predicting daily energy expenditure in individuals. Some people may have a reduced or enhanced capacity for thermogenesis, although such differences are probably small (see section on thermogenesis). Level and energy cost of physical and resting activities are difficult to determine and variations in energy expenditure exist between individuals, even at apparently similar levels of activity.
…..
It is not possible, using the factorial method described in this paper, to put an exact value on the accuracy of predictions of habitual energy expenditure in individuals. This must depend on the accuracy of determinations of BMR and of assessments of level and energy cost of activity. The range of variation in physically active free-living individuals is likely to be greater than in sedentary subjects or those confined in whole-body calorimeters. An estimate of predictive accuracy might be to within about 0.1 to 0.3 x BMR in most healthy individuals in sedentary to light activity categories, although greater errors could occur in more active individuals.
Additional errors in estimation of food energy requirements may occur through errors in the use of food composition tables, especially in subjects who consume a variety of high-fat foods, or through errors in calculation of the metabolisable energy content of diets eaten, particularly in individuals with absorptive disorders or a very high-fibre intake. Marked individual variations in additional energy requirements of pregnancy and lactation are also likely (see sections on energy cost of pregnancy and lactation).”
86. The Tribunal further notes that Dr English has assumed a value of 2.1 for activity level in the Schofield Equation she has relied on. Warwick (1990) [at Table 4] has reviewed the literature for the 24 hour ratio of [Daily Energy Expenditure: BMR] and provides values varying from 1.23 (sedentary) to 2.79 (elite athletes in training). Warwick concluded (at p. 300):
“From these results it is clear that absolute levels of daily energy expenditure (in MJ/day) vary with level of activity and with the sex and body weight (and therefore BMR) of the subjects studied. It is also clear that daily energy expenditure (EE) expressed as a multiple of MBR (EE: BMR) varies with apparently similar levels of activity”[Emphasis added].
87. The Tribunal has considered these conclusions in these scientific articles against the legal principles contained in Lawrence’s case and finds that there are limitations associated with the underlying assumptions relied upon by Dr English affecting the accuracy of the predictions as applied to the late Mr Dunn’s individual case. In turn, the Tribunal concludes that little evidentiary weight is to be given to the conclusions of Dr English on BMR and the diet of the late Mr Dunn in the pre-service period. Specifically, because of:
(a)The limitations in predictive capacity of BMR for individuals, relative to groups and the accuracy of such estimates; these aspects have been clearly identified by both Schofield (1985) and Warwick (1990);
(b)Factors involved in the accuracy of BMR predictive estimates identified by Warwick (1990) including individual variation (by as much as 20%), variations in energy cost of physical activities or in thermogenesis, variations in energy expenditure between individuals, even at an apparently similar levels of activity. These factors have not been considered other than to allow for a coefficient of variation of 10% in the estimates of BMR by Dr English. There is no information or evidence before the Tribunal as to how these factors have been considered in relation to he late Mr Dunn’s individual case;
(c)An acknowledgement by Warwick (1990) that it is not possible to put an exact value on the accuracy of predictions of habitual energy expenditure in individuals;
(d)Qualifications by Warwick (1990) that an estimate of predictive capacity might be to within about 0.1 to 0.3 x BMR in most healthy individuals in sedentary/light activities although greater error could occur in more active individuals (Tribunal emphasis);
(e)A constant value used for the Schofield equation coefficient (0.074) – as well as the “activity factor coefficient” 2.1) over a 12 month time period when the late Mr Dunn was predicted to have had a weight loss greater than the weight that he had commenced with at the start of the period; Dr English has acknowledged that energy requirement decreases with increasing weight loss (Exhibit R2, p.7); and
(f)No consideration of additional potential sources of error in estimating food energy requirements has been identified by Warwick (1990);
88. Given these findings, the Tribunal concludes that there are limitations in the opinion evidence i.e. in relation to the assumptions that were used in the Schofield Equations to predict the BMR for the late Mr Dunn’s individual situation, during the pre-service period.
89. The Tribunal findings should not be interpreted as some challenge of the Schofield Equations per se. Rather, the Tribunal’s findings reflect the need for scientific conclusions to be consistent with the legal standard. That is, in directly applying a mathematical model derived from the study of large groups to the situation of an individual, the need to ensure that all underlying assumptions for factors that influence the accuracy of the predicted output, for an individual, had been considered and incorporated into the structure of the model – where appropriate? The Tribunal concludes that in this application for review this is not the case. The legal principles in Lawrence’s case cannot be satisfied and, in turn, the “reasonable hypothesis standard of proof” cannot be satisfied.
90. Given its conclusion on applying the Schofield Equations to the late Mr Dunn’s individual situation, the Tribunal next considers the question whether the late veteran’s dietary survey in the pre-service period may be substituted with general community survey data contained in the “1936-1938 Survey of Domestic Food Budgets” – or the 1944 national household dietary surveys. The Tribunal has considered the principles in Caswell’s case given that the extrapolation from general data from a survey of community nutrition, to that of the late Mr Dunn’s individual situation, must depend on the scientific method of inference.
91. The issue of the substantive content of the “1931-1938 Survey of Domestic Food Budges” is not in dispute. For households in Perth, Western Australia, 310 households were surveyed. The “Adult Male Daily Caloric Intake” was determined in class intervals of 150 kcals over the range (1,351 – 8,350) kcals. Each class interval from (1,501 - 1,650) kcals to (5,251 - 5,400 kcals) was represented with a discontinuous representation of class intervals beyond 5,400 kcals. The mean daily calorie intake was 3,614 kcal (S.D + 44 kcal). The mean fat intake for adult males in Perth was 137.36g (S.D + 44.06 g).
92. The late Mr Dunn’s recalled pre-service diet was 42.1g of animal fat and 7,669 kJ (1,826 kcals). The Tribunal accepts the applicant’s evidence that the background circumstances of the late Mr Dunn in the pre-service period were straitened and in all likelihood, that his diet could not be considered to be average.
93. In order for the respondent to rely on the 1934 – 1938 survey and so substitute the survey’s “mean” or “average” value for the late Mr Dunn’s own diet survey (and the applicant’s family evidence in this regard), some positive proved facts from which an inference can be supported must be made: Caswell’s case. However, no such positive proved facts can be established by the respondent as to which particular calorific class interval derived from general community surveys in the range 1,501 to 5,400 kcal the late Mr Dunn should be placed. Moreover, the respondent has relied on its calculation (prediction) of BMR using the late Mr Dunn’s recalled diet during the pre-service period. The BMR predictions indicated Mr Dunn would have lost some 70 kg in a year on the dietary intake contained in his completed survey – a weight loss greater than the late Mr Dunn’s weight on enlistment. The Tribunal has made a finding that these BMR predictions have little evidentiary weight and so the respondent’s conclusions, in this regard, do not represent an objective or positive, proved fact.
94. The respondent also relies on the fact that the “low and inadequate pre-service” diet of the late Mr Dunn would not result in a situation wherein he would have presented at enlistment within a healthy weight range of 10 stone 6 lb (66.4 kg). However, this fact cannot be supported in the material before the Tribunal without further factual evidence giving some history of body weight of the late Mr Dunn –at the very least for some time in the pre-service period. In addition, there is a degree of uncertainty whether the threshold for under-nutrition of 3,000 kcal established by the Advisory Committee during Mr Dunn’s pre-service period had reached widespread acceptance by the international scientific community at that time (see para. 55) in relation to the 1934 – 1938 survey. Furthermore, there is uncertainty and some inconsistency whether the late Mr Dunn’s diet during the pre-service period was capable of adequately nourishing an adult male (see paras 52 and 58).
95. The Tribunal acknowledges the expert opinion of Dr English that problems exist with the validity of recall of past food consumption because of factors such as the age of the party completing the food survey, the extensive time period for recall, likely errors of omission and intrusion/commission and distortion of memory (Exhibit R2). However, the untimely death of Mr Dunn prevented the opportunity for a further “reality test” of the initial food survey completed by him
96. The consequence of section 119 of the Veteran’s Entitlement Act, in these factual circumstances, is that evidence cannot be invented – nor is the decision-maker authorised or required to ignore the evidence before it and to decide the case on the basis of quite different evidence: Mason v Repatriation Commission [2000] FCA 1409 per Weinberg J. Accordingly, the Tribunal concludes the evidence of pre-service diet cannot be extrapolated from general community survey by the method of inference or by relying on the output of a mathematical model where limitations in the accuracy of the output exist.
97. Consequently, the Tribunal concludes that any extrapolation from the “1934 – 1938 Community of Domestic Food Budgets” – specifically, the “average” value for daily calorific and fat intake, to the late Mr Dunn’s individual case in the pre-service period, without positive proved facts to support such as inference, is conjecture.
98. Given the above findings, the Tribunal accepts that the late Mr Dunn’s dietary survey is the best evidence the Tribunal has before it on daily calorific and fat intake during the pre-service period i.e. 42.1g animal fat and 1,826 kcal (7,669 kJ).
99. There is little dispute between the parties as to the fat intake levels of the late Mr Dunn during operational service. The late veteran’s own evidence was that his own diet improved and his consumption of fat increased on enlistment in the Navy.
100. The unchallenged evidence before the Tribunal was that the authorised ration scale for RAN personnel “on ship”, during the late Mr Dunn’s operational service, was 108.8 g of fat per day. This represents more than a 40% increase in animal fat consumption between the pre-service and operational service period (Exhibit R2, p.18).
101. During the post-operational service period, Dr English concluded that the late Mr Dunn’s consumption of animal fat during the post-service period would have remained at 70 g/d or above for at least the required minimum period of 20 years (Exhibit R2, p.20). This conclusion meets the SoP requirement for the 40% increase in fat consumption to be maintained for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
102. Section 196A of the Act establishes the Repatriation Medical Authority (“the Authority”). Section 196B is concerned with the functions of the Authority. Section 196B(2) provides that, if the authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles (“SoP”) in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors “must be related to service rendered by a person” before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.
103. Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
“…
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to a disease – it would not have occurred….but for the rendering of that service by the person.”
104.Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412 stated:
“42. An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that ‘factors must be related to any relevant service’. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
105. Accordingly, the requirement of the “Malignant Neoplasm of the Prostate” SoP that the relevant factor be related to the veteran’s service will be satisfied, inter alia, “if the factor would not have occurred but for the rendering of that service”: see Kattenberg’s case.
106. The Tribunal concludes that, based on its earlier findings, the increase in fat consumption by at least 40% and to at least 70 g/d for at least 20 years before the clinical onset of the late Mr Dunn’s malignant neoplasm of the prostate would not have occurred but for the circumstances of Mr Dunn’s relevant service. That is, factor 5(c) of the SoP is satisfied.
107. Each case must be considered on its merits. In this particular matter, for all of the above reasons and based on all the evidence and material before it, the Tribunal finds that for the purposes of subsection 120(1) of the Act, one or more facts that support the hypothesis have not been disproved beyond reasonable doubt: Byrne’s case.
108. Consequently, the Tribunal finds there are sufficient grounds for determining, at the requisite level of proof imposed by subsection 120(1), and in accordance with the legal framework outlined in this decision, that there is a connection between the death of the late Mr Dunn through “malignant neoplasm of the prostate” and the circumstances of his relevant service.
109. The Tribunal notes that one party to the proceedings raised some concern related to the Tribunal’s Direction on the underlying assumptions and the validation of the mathematical model relied on by Dr English in her predicted estimates of BMR for the late veteran; validation of computer generated data arising from a mathematical model against “real world” independent data is an essential procedural step in the development and application of mathematical models The Tribunal makes the further observation that records of body weight change, including the pattern of body weight change, have been recorded for prisoners of war of the Japanese during World War II – the period reasonably analogous to the pre-service period of the late Mr Dunn. These records for Australian POWs held at Changi, civilian internees at Changi and Hong Kong as well as American POWs held in camps in Japan indicates that for “undernourished diets”, body weight decline does not proceed on a constant basis over time e.g. months/annually. Rather weights in captivity stabilised at between 70% and 75% of pre-war values. [6]
[6] Rowland CG and Shannon HS (1991) “Patterns of Disease Among World War II Prisoners of the Japanese. Hunger, Weight Loss and Deficiency Diseases in Two Camps” J History of Medicine and Allied Sciences 46 65 – 85 at p.76. See also Smith PA and Woodruff MF (1951) “Deficiency Diseases in Japanese Prison Camps” Privy Council, Medical Research Council Special Report Series No 274, London HMSO.
110. The Tribunal sets aside the decision under review and substitutes for it a decision that the late Mr Dunn’s “malignant neoplasm of the prostate” was war-caused.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: ..................................................
AssociateDate/s of Hearing 15 February 2005
Date of Decision 2 June 2005
Solicitor for the Applicant Mr R Grayden, Hammond Worthington
For the Respondent Mr C Ponnuthurai, Departmental Advocate
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