Gill and Repatriation Commission

[2005] AATA 1276

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1276

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/592

VETERANS APPEALS  DIVISION		)
Re		ESTELLE GILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date21 December 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Isaac Gill was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.

.................SIGNED.......................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – SoP satisfied – death war-caused – decision set aside

Veterans’ Entitlements Act 1986: ss 5C, 7, 8, 13, 120, 120A, 196B(14)

REASONS FOR DECISION

Deputy President Don Muller        

1.Estelle Gill, the applicant, has claimed a widows’ pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the VEA).

2.Mrs Gill claims that her late husband, Isaac Gill, died from the effects of a war-caused disease, namely, prostate cancer.

3.The elements of her claim are:

(a)Isaac Gill died from the effects of prostate cancer.

(b)For many years prior to his death from prostate cancer, Mr Gill was in the habit of consuming food which had a high animal fat content.

(c)A diet with a high animal fat content is an accepted cause of prostate cancer.

(d)Mr Gill’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed when he served in the Australian Military Forces (the Army).

(e)The food that he had become accustomed to eating during his years in the Army was higher in animal fat than his pre-service diet.

(f)Thus, Mr. Gill’s death from prostate cancer was related to his Army service.

4.Mrs Gill’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.

5.The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.

6.Mrs. Gill seeks review of that decision.

Legislative Framework

7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.

8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.

10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.

11. Section 120(1) 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 death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.

13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting 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 Statement of Principles (SoP) that upholds the hypothesis.

14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.

Necessary Elements of Hypothesis

15.     In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:

(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;

(b)the veteran’s war service diet, provided to him by the Army, contained animal fat of (X + Y) grams per day on average;

(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.

16.     If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.

17.     In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”.  Those parts of No. 28 of 2005 relevant to this review are:

“Factors that must be related to service

4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.

Factors

5.The factor 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 is:

….

(c)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.

Other definitions

8.        For the purposes of this Statement of Principles:

“animal fat” means fat contained in or derived from:

(a)meat, other flesh or offal from animals (including birds but excluding seafood);

(b)       dairy products;  or

(c)       eggs from birds.”

Material Placed Before the Tribunal

18.     The following matters are not in dispute and the Tribunal finds:

(a)Isaac Gill was born in Maroochydore, Queensland on 13 December 1919.

(b)He enlisted in the Australian Army during World War II on 4 March 1940.

(c)During his time in the Australian Army he rendered operational service in:

The Middle East from 31 December 1940 to 3 April 1942

New Guinea from 12 August 1943 to 20 May 1944

Moratai and Borneo from 29 May 1945 to 10 July 1945

(d)He was discharged on 15 November 1945.

(e)Mr. Gill married Estelle Gill on 6 January 1979.

(f)He was diagnosed with prostate cancer on 9 June 1981.

(g)He died on 23 June 1986.  The cause of death was Carcinoma of prostate.

19.The evidence relating to Mr. Gill and his diet was provided by:

(a)His widow, Estelle Gill, the applicant, who knew Mr Gill from about 1975, and married him in 1979.

(b)His younger brother, Kenneth John Gill, who was able to give evidence about Mr. Gill’s pre World War II diet, and his post World War II diet.  Kenneth Gill lived with his brother, Isaac Gill and Isaac Gill’s first wife, Madge, as a boarder for about 12 months in 1945/46.

20.The material relating to Mr Gill and his diet revealed the following:

(a)Mr. Gill grew up with his family on the Maroochy River.

(b)Mr. Gill’s father was an invalid pensioner.  He used to do a lot of fishing to supply food for the family.

(c)The Gill brothers used to also do a lot of fishing in the Maroochy River.  They used to catch, or collect, fish, crabs, prawns and oysters.

(d)When the Gill brothers were growing up they had some type of seafood for practically every meal, except breakfast.

(e)It is not known precisely what Mr. Gill ate whilst on service.  He was away from Australia on operational service for a total of about two years out of the time he spent in the Army.  He probably ate a lot of bully beef.

(f)On his return to civilian life his first wife, Madge, used to cook the following types of meals:

·Breakfast, consisted of porridge (rolled oats) plus bacon and eggs every morning.  Sometimes fried mashed potato.

·Lunch – unknown

·Dinner – usually consisted of a roast (lamb or beef) plus potatoes with bacon added, cabbage and for dessert he had bread and butter pudding or rice pudding and sultanas.

·He still enjoyed fish which he had at least once per week.

·He drank a lot of beer.  He rarely missed going to the hotel after work each day.  He often had beer for supper.

(g)His second wife, Estelle, filled in a dietary survey which indicated the following diet:  (Kenneth Gill said the food suggested by Estelle was much the same as the food he remembered Madge preparing.)

·     Mr. Gill always enjoyed eating fatty foods.

·     She used quite a lot of added fat in her cooking.

·     She did not like egg plant but her husband did.  So she would fry it up for breakfast with other things.  He would also eat bacon and eggs on a lot of mornings.

·     Lard or dripping was used in the cooking of most meals.  Chops, steak and roasts were prepared and cooking in dripping and lard.

·     Mr. Gill never cut the fat off anything.  He used to eat the fat off the sides of the meat.

·     Once he was retired he did a lot of fishing and they would eat fish three times a week either for breakfast or dinner.  Prior to his retiring they had less fish as he did not have the time to fish.  He would order the fish so they could have it about twice a week.

·     They went out to dinner up to twice a week to the RSL club.  He would usually order fish.

(h)On retirement he played bowls up to four times a week, weather permitting.  He also made a vegetable garden with lots of things in it.  He kept the lawns, garden and footpath “beautiful”.

21.The material placed before the Tribunal indicates that Mr. Gill’s diet pre World War II contained a lot of seafood due to the combination of facts that his father was in poor circumstances financially due to his ill health and the fact that the family did a lot of fishing.  The diet would have been very low in animal fat content.

22.the material indicates that Mr. Gill probably ate a lot of Army field rations during his long periods on operational service in the Middle East, New Guinea and Borneo.  It is well-known that such ration packs contained a lot of bully beef, which had a significant animal fat content.

23.The material indicates that after World War II, Mr. Gill had a diet that was high in animal fat content.

24.     The Tribunal heard evidence from Dr. Justin Kenardy, psychologist and specialist in behavioural and rehabilitation medicine.  Dr. Kenardy said:

“So that, once the war was over, whatever drive to consume that fat had been established during the war would continue irrespective of factors that were operating on that person’s environment.

That if a person had changed their preference and desire to consume fat during the war, then that would be something that would be related specifically to the fat itself that they’d consumed, not the circumstances of the war.  So you would expect that that would generalise into new situations because once they’d left the war circumstances there would be – you would expect to see that that preference and desire to consume fat would continue irrespective of the circumstances that they were in.”

25.The material placed before the Tribunal does raise a hypothesis connecting Mr. Gill’s death from prostate cancer with the circumstances of his eligible service.

26.Mrs. Gill supplied information about Mr. Gill’s diet, by way of dietary surveys to expert dieticians, Ben Desbrow and Dr. Ruth English.

27.At the time they wrote their reports the expert dieticians had no information about Mr. Gill’s pre-service diet.  For the purpose of assessing Mr. Gill’s pre-war post war diets, against the SoP, they assumed that Mr. Gill’s pre-service diet was the same as that revealed by the 1936-38 national food survey for adult males.  That is an intake of 122-126 gms of animal fat per day.

28.Both Mr. Desbrow and Dr. English agree that on the material provided by Mrs. Gill, the SoP is satisfied, even on the assumption that Mr. Gill’s pre-service diet contained the then average for adult males of 122-126 gms of animal fat per day.

29.Dr. English believes that the answers to the dietary surveys, given by Mrs. Gill, are completely unreliable and invalid.  Dr. English believes that the level of animal fat intake of Mr Gill, as indicated by Mrs. Gill, has been greatly overstated.

30.I am conscious of the fact that dietary surveys are inherently inaccurate because of the difficulty witnesses have in recalling the details of meals eaten by someone else many years ago.  Nevertheless, I accept the general thrust of the evidence that Mr. Gill had a mainly seafood diet as a young man prior to his war-service;  that during his Army operational service he consumed food that was higher in fat content than his pre-war seafood diet;  that he acquired a taste for food with a higher animal fat content and continued to eat foods with a high animal fat content, in large amounts, when he returned to civilian life;  that he continued that diet high in animal fat content for most of the rest of his life.

31.I believe that Mr. Gill’s seafood diet pre-war would have contained a lot less animal fat than the then average for adult males.

32.I note the concerns that Dr. English has about the accuracy of the dietary surveys and I agree with her that the specific amounts of food noted in those surveys are probably an over-estimation in the post-war section.  Nevertheless, I am satisfied that Mr. Gill had a diet low in animal fat pre-war, a diet much higher in animal fat during his operational service, that he developed a taste for food containing animal fat whilst on operational service, and that he then significantly increased his animal fat intake in his post war civilian life.

33.I am not satisfied beyond a reasonable doubt that there is no sufficient ground for determining that the death of Mr. Gill was war-caused.

34.The decision under review is set aside and in substitution the Tribunal determines that the death of Isaac Gill was war-caused.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  14, 21.3.05, 8.4.05, 10,11,12.5.05, 20,22.6.05, 30.9.05

Date of Decision  21 December 2005
Counsel for the Applicant         Mr. A. Harding 
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Ms. E. Ford
Solicitor for the Respondent      Mr. S. Francis