Gavin and Repatriation Commission
[2011] AATA 762
•28 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 762
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0645
VETERANS' APPEALS DIVISION ) Re Eileen Gavin Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton Date28 October 2011
PlaceSydney
Decision The decision under review is set aside and in substitution it is decided that Mr John Gavin’s death was war-caused. ......................[sgd]........................
Senior Member A K Britton
CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow’s pension – kind of death – malignant neoplasm of the prostate – war caused death – reasonable hypothesis – increase in post-service animal fat consumption – increase related to service - decision under review set aside
Veterans’ Entitlement Act 1986 (Cth) – ss 13, 120, 120A, 196B(14)
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832
Cameron v Repatriation Commission (2003) 77 ALD 81; [2003] FCA 1323
Byrnes v Repatriation Commission (1993) 177 CLR 564; [1993] HCA 51
Statement of Principles concerning Malignant Neoplasm of the Prostate; Instrument No 28. of 2005
REASONS FOR DECISION
28 October 2011 Senior Member A K Britton 1. Mrs Eileen Gavin seeks review of the decision made by the respondent Commission and affirmed by the Veterans' Review Board to refuse her claim made under the Veterans’ Entitlement Act 1986 (Cth) (the Act) following the death of her husband, Mr John Gavin, who served in the Australian Army during World War II.
2. The parties agree that the “kind of death” suffered by Mr Gavin was death from prostate cancer. Mrs Gavin’s entitlement to a war widow’s pension turns on whether that condition was “war-caused”.
Statutory framework
3. Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.
4. As Mr Gavin’s entire period of service constitutes “operational service” within the meaning of the Act, the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
(1) 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 death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) or (2) in respect of ... the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
...
(c) that the death was war-caused ...
This subsection is affected by section 120A.
5. Section 120A is headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles” and relevantly provides:
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11);
...
that upholds the hypothesis.
6. The approach to be taken when applying these provisions was authoritatively determined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) and involves a four-step process:
·First, the decision-maker must consider whether all the material before it points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
·Second, if the material raises such a hypothesis, the decision-maker must ascertain whether there is a Statement of Principles in force.
·Third, if so, the decision-maker must consider whether the hypothesis is reasonable by determining whether it is consistent with the “template” found in the Statement of Principles.
·Fourth, the decision-maker must then consider, under s 120(1), whether it is satisfied beyond reasonable doubt that the death was not war-caused.
Hypothesis advanced by Mrs Gavin
7. The hypothesis advanced by Mrs Gavin is that:
1.The “kind of death” suffered by her husband was malignant neoplasm of the prostate.
2.Onset of that condition occurred in June 1999.
3.Throughout the subject period Mr Gavin’s level of animal fat intake was at least 50 grams per day.
4.Throughout the subject period Mr Gavin’s level of animal fat intake increased to, and was maintained at, at least 40% of the amount he had consumed prior to commencing service.
5.That increased level of fat consumption throughout the subject period was “related to” service in that it was “contributed to, in a material degree” by service: s 196B(14)
8. There is no argument that if the hypothesis advanced by Mrs Gavin is raised by the material, there is in force a relevant Statement of Principles (SoP), namely, Instrument No 28 of 2005 concerning Malignant Neoplasm of the Prostate (SoP No 28).
9. Clause 5 of SoP No 28 requires that at least one of four factors listed in cl 5 must exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the prostate with the circumstances of service. Mrs Gavin contends that the material points to the presence of one of those factors, namely cl 5(c), which provides:
increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;
10. “Animal fat” is defined in cl 8 of SoP No 28 to mean fat contained in or derived from:
(a) meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds
Does the material point to the requisite increase in animal fat consumption?
11. The Commission concedes that there is material which “points to” the first three elements of the advanced hypothesis. It argues however that the material neither “points to” the requisite minimum increase in animal fat consumption throughout the subject period nor any purported increase, being the “result of” service. Mrs Gavin disagrees.
12. Before deciding whether there is material which points to these two elements, it is useful to examine the material about Mr Gavin’s diet before, during and after service. Evidence was given about this issue by Mrs Gavin. In addition, consultant dieticians and nutritionists, Drs Dianne Volker and David Mann, each prepared reports for these proceedings and gave oral evidence. Among other things, they were asked to estimate the amount of animal fat consumed by Mr Gavin before, during and after service.
Pre-service diet
13. The experts agree that the Australian National Dietary Survey provides a reasonably reliable measure of Mr Gavin’s level of animal fat consumption prior to enlistment (Commonwealth Advisory Council on Nutrition, Final Report of the Advisory Council on Nutrition, APGS, Canberra, 1938). Using that information, Dr Volker estimated Mr Gavin’s pre-service average daily animal fat consumption to be 126 g. Dr Mann arrived at a slightly lower figure — 117 g. This discrepancy arose because Dr Mann relied on data from the survey period 1938 to 1939, while Dr Volker relied on data from the immediately preceding period 1936-1938.
Service diet
14. Drs Volker and Mann each estimated the amount of animal fat and kilojoules consumed by Mr Gavin during service. Each relied on a number of reports prepared by Dr Ruth English in which she analysed the diets provided to the Australian Armed Forces during World War II. Dr Volker concluded that her estimates could be validated and set out the basis for her respective opinions. Dr Mann agreed that the estimates were accurate.
15. Drs Volker and Mann agree that the diet provided to Mr Gavin throughout the seven months he served on Morotai Island — the “PNG (2) Ration Scale” — had a significantly higher animal fat and kilojoule content than Mr Gavin had consumed before enlistment. They also agreed that this diet had the highest animal fat and kilojoule content of any of the diets provided to Mr Gavin throughout the 60 months he served with the Army. Dr Volker estimated Mr Gavin’s daily animal fat intake to be 146 g per day on the PNG (2) Ration Scale; Dr Mann arrived at a slightly lower figure, 132 g per day.
16. Dr Volker assumed that in addition to his time on Morotai Island, Mr Gavin was given the PNG (2) Ration Scale throughout his final ten months of his service. Mrs Gavin conceded that this was incorrect.
Post-service diet
17. Dr Volker is of the opinion that the amount of animal fat consumed by Mr Gavin throughout the subject period can be reliably estimated. Dr Mann disagrees.
18. Dr Volker based her estimate of Mr Gavin’s average daily animal fat and energy consumption on information contained in a “reconstructed diary” prepared by Mrs Gavin for the purpose of these proceedings (the diary). The diary set out Mrs Gavin’s recollection of her husband’s diet over a notional seven days within the subject period. Dr Mann, on the other hand, based his estimates on information recorded by him during a phone interview with Mrs Gavin. There are a number of differences between the information contained in the diary and that recorded by Dr Mann. This, together with some differences in methodology, such as Dr Mann’s use of higher estimates of serving sizes, accounts for the differing estimates arrived at by the experts, set out below.
Estimated daily animal fat and energy consumed by Mr Gavin between 1975 to 1980
Dr Volker
179 (animal fat)
13.2 mJ (energy)
Dr Mann
154 g (animal fat)
21.2 mJ (energy)
19. The experts used a common methodology to test the validity of their respective estimates (“the validation method”) which involved:
1. Checking to see that only foods available during the subject period were included.
2. Checking the extent to which the reported daily eating program reflects the likely intake according to the relevant available food frequency data.
3. Assessing Mr Gavin’s energy intake from the reported daily eating pattern against an estimate of his physiological requirements based on his body mass ratio for age and a factor for activity level.
4. Assessing the effect, if any, of the manner of administration of the questionnaire.
20. Dr Volker concluded that her estimates were able to be validated by each of the four steps. Dr Mann concluded that his estimates were able to be validated by Steps 1 and 4 but not 2 and 3. On his account, the application of Step 3 revealed that if the history given by Mrs Gavin was accurate, Mr Gavin’s actual daily consumption would have been about 21.2 mJ, which was well in excess of his actual energy needs and incompatible with him maintaining a healthy and constant weight, which is at odds with the evidence. Furthermore, he concluded that if the history he recorded was accurate, Mr Gavin’s animal fat intake would have been about three times higher than the average intake for men in his age group at the time.
Requisite increase: Findings and conclusions
21. Mrs Gavin asserts that the analysis undertaken by Dr Volker points to a 42 per cent increase in her husband’s animal fat intake throughout the subject period from his pre-service intake. The Commission disagrees. It asserts that there is no material pointing to Mr Gavin’s level of animal fat consumption, either prior to enlistment or throughout the subject period. It follows, according to the Commission, that the material does not point to the requisite increase throughout the subject period.
22. I do not agree with the proposition there is no material that points to Mr Gavin’s pre–service animal fat intake. First, the Commission’s own expert was of the opinion that the survey data both he and Dr Volker relied on provided a reliable basis upon which to estimate Mr Gavin’s pre-service level of animal fat consumption. Second, while Mrs Gavin had little detailed knowledge of her husband’s pre-service diet, she was able to give evidence about his family’s financial circumstances prior to WWII, which she described as straitened. The inference can be drawn from that evidence that Mr Gavin would probably not have consumed a higher level of animal fat than that recorded for the average adult male, in that period.
23. Nor do I agree with the proposition there is “no material” that points to Mr Gavin’s animal intake throughout the subject period. Dr Volker based her estimate on information provided by Mrs Gavin and concluded that it could be validated. That her opinion conflicts with that of Dr Mann does not, as the Commission apparently contends, establish that there is no material pointing to Mr Gavin’s level of animal fat consumption post service. The Commission appears to be in effect urging me to assess competing expert opinions and engage in “impermissible fact finding” which the authorities have consistently cautioned against at this stage of the Deledio assessment.
24. I am of the opinion that there is some material that points to an increase in Mr Gavin’s daily animal fat consumption by at least 40%, and to at least 50 g/day, throughout the subject period.
Increased level of fat consumption “related to” service?
25. Dr Volker was of the opinion that the relatively high fat diet Mr Gavin received throughout the seven months he served on Morotai Island was a material factor which contributed to him developing and maintaining a lifelong preference for such a diet. In her opinion, seven months sustained exposure to a diet relatively high in animal fat was sufficient for a person in Mr Gavin’s position to develop a life-long dietary preference. She thought it relevant that the food provided on Morotai Island was fresh and prepared by way of “forward kitchens”, which in her opinion would have enhanced its appeal. On her account, as a result of that exposure Mr Gavin came to associate a diet high in animal fat with flavoursome food and a feeling of satiety, which in turn led to him developing and maintaining a “strong desire” to continue to eat a diet of that type. Animal fat, she contended, was both flavoursome and a vehicle for flavour.
26. Also relevant, according to Dr Volker, was Mr Gavin’s exposure to this type of diet occurred while he was relatively young, before his food preferences had become entrenched. She stated that her opinion that food preferences were generally not established until early adulthood was consistent with the literature.
27. In cross-examination, Dr Volker disagreed with the proposition that her opinion (that as a result of service Mr Gavin developed and maintained a lifelong preference for a diet with a relatively high animal fat content) was at odds with Mrs Gavin’s description of him as “a most agreeable man” who essentially ate what she served. Dr Volker conceded that there was no direct evidence that Mr Gavin expressly made his dietary preferences known to his wife, but pointed out that the history she gave revealed that she essentially prepared meals in accordance with what she understood her husband would enjoy. That from to time Mrs Gavin sought to modify her husband’s diet by, for example, introducing asparagus, did not, according to Dr Volker, undermine her assessment that Mrs Gavin prepared meals in line with her husband’s dietary preferences. Dr Volker did not resile from that opinion despite agreeing with the proposition that there was nothing especially unusual or exotic about Mr Gavin’s diet throughout the subject period.
28. Mrs Gavin stated that while her husband seldom spoke about his war time experience she was aware that he considered the rations to be of poor quality and disliked bully beef and other forms of tinned meats or tack biscuits that formed a large part of the rations for most of his period of service. On her account, he enjoyed the fresh food available after the war — meat, fruit, vegetables and eggs. She stated that she often served steak for dinner because she knew her husband enjoyed it even though she was not much of “steak eater”.
29. Dr Mann was of the opinion that Mrs Gavin’s account of her husband’s post-war diet revealed him to be a “fairly average man … [not] a finicky eater”. Dr Mann stated that numerous factors determine the level of animal fat an individual will consume and the proposition that a link had been established between Mr Gavin’s relatively short exposure to a diet relatively high in animal fat and a lifetime of increased animal fat consumption was “highly speculative”.
30. In support, he cited a report prepared by psychologist Prof J Kennardy, who concluded that there was insufficient evidence to demonstrate “an addictive model of fat over-consumption”. Dr Mann pointed out that while some studies indicated that rats could develop “addictive behaviours” after eating high fat foods, there is “no definitive proof” that these results could be extrapolated in respect of humans.
31. The Commission argues that there is simply no material that Mr Gavin had any effective input into his diet throughout the subject period or that it was related in some way to service. Furthermore, the Commission contends that there is no material that points to the fact that Mr Gavin actually consumed the food he was provided on Morotai Island. While limited, nonetheless in my opinion there is some material to support the proposition that the relatively high fat diet Mr Gavin consumed throughout the seven months he served on Morotai Island was a material factor which contributed to him developing and maintaining a lifelong preference for a diet relatively high in animal fat. First, in respect of the on-service diet, while there is no direct evidence that Mr Gavin ate what he was provided, the medical records show that his weight remained relatively constant throughout this period. There is no argument about the type of diet he was provided or that it had a relatively high animal fat content. While Mr Gavin may have supplemented his diet with food parcels from Australia, he was largely reliant on the food provided by the Army. From this information, the inference can be drawn that he consumed the food provided. Second, Mrs Gavin’s evidence was to the effect that while her husband was easy to please and the task of selecting and preparing his meals fell within her domain, nonetheless she sought to provide meals she understood he would enjoy. Her evidence was that not only did she prepare meals she anticipated they would enjoy but also served foods such as steak which he liked but for which she had little enthusiasm. Third, that Mr Gavin was “extremely agreeable” does not mean, as I understand the Commission to suggest, that the relatively high fat diet his wife prepared throughout the subject period did not correspond with his dietary preferences. Fourth, in Dr Volker’s opinion, exposure to a diet relatively high in animal fat for a period of seven months was sufficient to cause Mr Gavin to develop and maintain a lifelong preference for such a diet. I cannot agree with the Commission’s argument that the opinion given by Dr Volker about the link between Mr Gavin’s service and animal fat consumption is “purely speculative” and thus does not constitute material pointing to the advanced hypothesis. . Dr Volker’s qualification to provide an opinion about the factors contributing to Mr Gavin’s diet throughout the subject period was unchallenged. She set out the assumptions on which that opinion was based. That her opinion conflicts with that held by Dr Mann, does not, as the Commission contends, render it “fanciful”. Nor can it be so dismissed because, like any expert opinion in the field of human behaviour, it involves a degree of speculation and does not lend itself to objective testing.
32. I am of the opinion that the material points to Mr Gavin’s increased animal fat consumption throughout the subject period being “related to” service.
Is the hypothesis reasonable?
33. The Commission contends that the hypothesis advanced by Mrs Gavin is unreasonable. As discussed, the Commission contends that Dr Volker’s opinion about the relationship between Mr Gavin’s service and level of animal fat consumption is fanciful and “speculative in the utmost”. This, coupled with the implausibility of Mr Gavin maintaining a constant weight and consuming the amount of animal fat estimated by Dr Volker, according to the Commission renders the hypothesis “unreasonable”.
34. In East v Repatriation Commission (1987) 16 FCR 517 (at 533), the Full Court of the Federal Court cited with approval the following passage from the decision of the Veterans’ Review Board in Stacey, 26 June 1985, unreported, about the meaning of the phrase “a reasonable hypothesis”:
[T]o be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact...
35. In Bull v Repatriation Commission (2001) 66 ALD 271, Emmett and Allsop JJ observed at [18]:
It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or not tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis … [emphasis in original]
36. With those principles in mind, “after consideration of the whole of the material”, I must form an opinion about whether the material raises a reasonable hypothesis connecting factor 5(c) of SoP No 28 with the circumstances of Mr Gavin’s service. As noted by Allsop J in Cameron v Repatriation Commission (2003) 77 ALD 81:
[42] The dividing line between impermissible fact finding and permissible (indeed mandated) assessment of all the material, weighing it and concluding whether or not, as a whole, it points to the posited reasonable hypothesis, is not necessarily easy.
37. According to Dr Mann, based on the history given by his wife, throughout the subject period Mr Gavin would have consumed about 22 mJ per day, which represents about three times the average for males in his age group. Dr Mann is of the opinion that had Mr Gavin consumed that diet, he would have been unable to maintain a stable weight throughout the subject period. Dr Mann came to that conclusion after testing the reconstructed diet he recorded after interview with Mrs Gavin against Step 3 of the validation method. Step 3 involves comparing a person’s actual energy (or kilojoule) intake with their theoretical energy requirements. If the actual energy consumed exceeds a person’s theoretical energy requirements, it is likely they will gain weight; conversely if, a person’s actual energy consumption is less than their theoretical energy requirements, it is likely they will lose weight.
38. Suffice to say for current purposes, employing the same test, Dr Volker concluded that there was no disparity between Mr Gavin’s actual and theoretical energy requirements. In her opinion, Dr Mann’s analysis is flawed because among other things he failed to have proper regard to individual between individuals and make appropriate adjustments. Dr Mann’s analysis merely establishes a disparity between actual and theoretical energy consumption, based on the information and the methodology he employed.
39. In respect to the link between service and animal fat consumption throughout the subject period it should be noted that Dr Volker did not say that service was the sole factor that contributed to Mr Gavin’s increase in animal fat intake but rather one of a number of factors including lifestyle, dietary changes related to married life and greater affluence. As stated, I have formed the view that there is some material to support the assumptions on which Dr Volker’s opinion is based. It may be that those facts ultimately cannot be proved or that Dr Mann’s opinion is to be preferred, however, this does not render unreasonable the hypothesis of the link between Mr Gavin’s service and his post-war diet.
40. I am of the opinion that the material before me raises a reasonable hypothesis connecting factor 5(c) of SoP No 28 with the circumstances of Mr Gavin’s service.
Satisfied beyond reasonable doubt that Mr Gavin’s death was not war-caused?
41. Being satisfied that the advanced hypothesis is reasonable, I must determine that Mr Gavin’s death was “war-caused” unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1) of the Act. As the High Court explained in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, by the operation of s 120(1), a 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.
42. Neither party bears an evidentiary onus: s 120(6) of the Act.
43. As I understand, it the Commission contends that the following facts on which the advanced hypothesis rests are disproved beyond reasonable doubt:
·That Mr Gavin’s level of animal fat consumption had increased by at least 42 per cent throughout the subject period compared to his pre-service intake; and
·That the requisite increase in fat consumption throughout the subject period was related to service.
Requisite increase in animal fat consumption
44. It is unclear whether the Commission contends that it is disproved beyond reasonable doubt that Mr Gavin’s pre-service average daily animal fat consumption was, as Dr Volker estimated, 126 g or, as Dr Mann estimated, 117 g. If that argument was put, it could not succeed as no evidence has been adduced to disprove either estimate.
45. The Commission contends that the information on which Dr Volker based her estimates of Mr Gavin’s level of animal fat consumption throughout the subject period is unreliable, citing the allegedly conflicting histories given by Mrs Gavin and, in addition, Dr Mann’s analysis that the history he was given could not be validated.
46. The only evidence about Mr Gavin’s diet throughout the subject period is that provided by his wife. Apart from the history recorded by Dr Mann, as set out at Attachment A of his report, there is no evidence to contradict Mrs Gavin’s testimony that the information she recorded in the diary is a fair representation of her husband’s diet over a notional seven-day period during the subject period. In oral evidence, she disputed parts of the history attributed to her by Dr Mann. She testified that, among other things, her husband did not, as Dr Mann had recorded, eat porridge or chocolate biscuits or have three sandwiches for lunch. She testified that she had not read or verified the information recorded by Dr Mann at Attachment A to his report.
47. Dr Volker’s estimate of Mr Gavin’s level of animal fat consumption is also challenged by the Commission on the basis that it could not be validated. It will be recalled that the experts agree that it was necessary to test Mrs Gavin’s recollection of her husband’s diet against four agreed steps. Dr Mann’s conclusion that the diet was invalidated by Steps 2 and 3 was based on the assumption that the subject diet was as set out in Attachment 1 to his report. As discussed, that reconstructed diet was different to that employed by Dr Volker. Accordingly, his analysis does not undermine Dr Volker’s conclusion that the information she employed was able to be validated.
48. In estimating Mr Gavin’s animal fat consumption throughout the subject period, Dr Volker used information provided by Mrs Gavin. She concluded that that information could be validated by a method both she and Dr Mann believed to be appropriate. It is not proved beyond reasonable doubt that throughout the subject period Mr Gavin did not consume the diet on which Dr Volker’s estimate of animal fat consumption is based. Nor does the analysis undertaken by Dr Mann disprove those estimates to the requisite standard.
49. I am not satisfied that the two factual assumptions that underlie the proposition that Mr Gavin’s level of animal fat consumption had increased by at least 42 per cent throughout the subject period from his pre-service intake are disproved beyond reasonable doubt.
Link between increased level of fat consumption and service
50. The final issue to be determined is whether it has been disproved beyond reasonable doubt that the relatively high animal fat diet consumed by Mr Gavin throughout the seven months he served on Morotai Island materially contributed to his increased level of fat consumption during the subject period.
51. None of the factual assumptions upon which Dr Volker’s opinion is based have been disproved beyond reasonable doubt. Even if accepted, as the Commission contends, that Dr Mann’s opinion should be preferred, his opinion neither disproves Dr Volker’s opinion, nor establishes his to the requisite standard.
Conclusion
52. The kind of death suffered by Mr Gavin was malignant neoplasm of the prostate. I am satisfied that there is material pointing to (i) an increase in Mr Gavin’s level of animal fat consumption (from pre-service levels) by at least 40% and to at least 50 g/day for the period 1975 to 1980; and (ii) Mr Gavin’s service contributing, in a material degree, to that increase and level of animal fat consumption. I am of the opinion that a reasonable hypothesis has been advanced that Mr Gavin’s increase in animal fat consumption throughout this period is “related to” service. I am not satisfied beyond reasonable doubt that Mr Gavin’s death was not war-caused. It follows that Mr Gavin’s death was war-caused. It follows that he decision under review must be set aside.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ...............[sgd].................
Associate to Senior Member A K BrittonDate/s of Hearing 2 August 2011
Date of Decision 28 October 2011
Counsel for the Applicant Mr S Feredoes
Solicitor for the Applicant Mr A Kemp, Kemp & Co. LawyersRepresentative for the Respondent Mr T O’Reilly, Department of Veterans' Affairs
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