Glanville and Repatriation Commission
[2011] AATA 227
•5 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 227
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2004/1632
GENERAL ADMINISTRATIVE DIVISION )
ReCatherine Glanville
Applicant
And Repatriation Commission
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Dr SH Toh, Member
Date5 April 2011
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd]......................
Mr RP Handley
Deputy President
CATCHWORDS
VETERAN’S ENTITLEMENTS – widow’s pension – malignant neoplasm of the prostate - statement of principles No 28 – increased animal fat consumption post-service - Deledio test - causal link too tenuous – hypothesis not reasonable – decision under review affirmed
RELEVANT ACTS
Veterans’ Entitlements Act 1986 (Cth): s 120
CITATIONS
Re Glanville and Repatriation Commission [2009] AATA 759
Repatriation Commission v Glanville (2010) 114 ALD 616; [2010] FCA 405
Repatriation Commission v Deledio; (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; [1998] FCA 391
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Repatriation Commission v Dunn (2006) 94 ALD 97; (2006) 44 AAR 131; [2006] FCA 1703
OTHER AUTHORITIES
Statement of Principles Concerning Malignant Neoplasm of the Prostate, Instrument No 28 of 2005 dated 19 September 2005
PM Warwick “Predicting energy requirements from estimates of energy expenditure” in Australian Journal of Nutrition and Dietetics (1989) 46 Supplement 3
REASONS FOR DECISION
| 5 April 2011 | Mr RP Handley, Deputy President |
| Dr SH Toh, Member |
The applicant, Mrs Catherine Glanville, applied to the Tribunal for a review of a decision that she was not qualified for a war widow’s pension under the Veterans’ Entitlements Act 1986 (the Act) because her husband’s death was not war-caused. The issue for the Tribunal, therefore, is whether Mr Glanville’s death was war-caused.
Background
Mr Keith Glanville, who was born in 1924, served in the Australian Army during World War II from 20 January 1943 to 2 October 1946. This period constitutes ‘eligible war service’. During this time, Mr Glanville served outside Australia in Morotai and Tarakan between 2 June 1945 and 9 May 1946, and this period also constitutes ‘operational service’ for the purposes of the Act.
Mr and Mrs Glanville first met after the end of the war and were married in November 1947. They had two children. Mr Glanville died in January 2004, aged 80. The cause of death was certified to be “carcinoma of prostate”.
On 3 May 2004, Mrs Glanville applied for a war widow’s pension on the ground that her husband’s death was war-caused. Her claim was refused by the Repatriation Commission (the Commission) on 6 August 2004, a decision that was affirmed on appeal to the Veterans’ Review Board (VRB) on 18 November 2004. On 15 December 2004, Mrs Glanville sought a review by the Tribunal. On 2 October 2009, after hearings conducted on 4 August 2006, 20–21 May 2008 and 9 April 2009, the Tribunal decided to set aside the decision and substituted a decision that Mr Glanville’s death was caused by his operational service and that Mrs Glanville’s claim for war widow’s pension should therefore be granted with a date of effect of 3 February 2004: ReGlanville and Repatriation Commission [2009] AATA 759.
The Commission appealed to the Federal Court. On 30 April 2010, Justice Cowdroy allowed the appeal, set aside the Tribunal’s decision and “remitted the matter to the Tribunal, differently constituted, for determination in accordance with law”: Repatriation Commission v Glanville (2010) 114 ALD 616; [2010] FCA 405. Addressing the grounds of appeal relied upon by the Commission, his Honour said, at 628, that in his opinion:
… Dr Volker’s testimony provided ‘material’ before the Tribunal that pointed to the assumption relied upon in the respondent’s hypothesis. Whether that hypothesis was reasonable is an issue for determination in the second ground of appeal.
With regard to the second ground of appeal, Justice Cowdroy said, at 630, that the Tribunal was required to address the question of the reasonableness of the hypothesis advanced by the Applicant (Mrs Glanville) and “failed to do so”. The Tribunal thereby made an error of law fundamental to its task. His Honour earlier referred to the test to be applied in assessing the reasonableness of the hypothesis, at 623:
Following the amendments to the VE Act which took effect on 1 June 1994, the application of an SoP was considered by the Full Court in Deledio at FCR 96; ALD 205. There the Full Court quoted Heerey J at first instance (see: Deledio v Repatriation Commission (1997) 47 ALD 275) where his Honour said:
Following the amendments to the VE Act which took effect on 1 June 1994, the application of an SoP was considered by the Full Court in Deledio at 96. There the Full Court quoted Heerey J at first instance (see: Deledio v Repatriation Commission (1997) 47 ALD 275) where his Honour said:
The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)The truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.
Referring to the Commission’s expert witness, Cowdroy J also found, at 632-633, that the Tribunal “was required to address the information raised by Dr English’s opinion particularly in circumstances where Dr English’s opinion called into question the primary evidence on which the claim was based”. By not “engaging in an active intellectual process” with this evidence, resulting in the Tribunal having “virtually ignored her evidence”, the Tribunal made a jurisdictional error. Further, by failing to address and consider the Commission’s submissions concerning Dr English’s evidence, the Tribunal also fell into jurisdictional error.
At the remittal hearing, apart from a short statement from Mrs Glanville dated 17 September 2010 and a letter from the Applicant’s specialist, Dr Dianne Volker, dated 15 December 2010, the parties asked the Tribunal to rely on the evidence before the Tribunal in the original proceedings and confined themselves to making submissions.
the Issues
Mrs Glanville claims that her husband’s death was war-caused. She hypothesises that Mr Glanville:
developed a preference for food containing high quantities of animal fat in his post-war years because the food he was provided with on active service was bland, dull and repetitive, and because of the experiences of fear and panic, interspersed with boredom, which he associated with such food.
The approach the Tribunal must adopt in this matter with respect to Mr Glanville’s operational service is that set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; [1998] FCA 391 (Deledio). There is no dispute that the first two steps outlined in Deledio are satisfied. First, it is agreed that the material before the Tribunal points to a hypothesis connecting Mr Glanville’s death, the cause of which was stated in the death certificate to be “carcinoma of prostate”, with the circumstances of his war service. Second, it is agreed that there is a relevant Statement of Principles (SoP), namely Instrument No 28 of 2005 concerning Malignant Neoplasm of the Prostate (SoP No 28).
The third step requires the Tribunal to form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP(s). In this instance, clause 4 of SoP No 28 states that “at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person”. Clause 5 provides relevantly:
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 are:
…
(c)increasing animal fat consumption by at least 40% and to at least 50 gm/day, and maintaining these levels for at least five years within twenty-five years before the clinical onset of malignant neoplasm of the prostate; …
‘Animal fat’ is defined in clause 8 as follows:
“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;.
Mr Glanville died in January 2004. The first mention of prostate cancer in his medical records is on 18 April 2002 and, for the purpose of these proceedings, this date is accepted as the date of clinical onset. The relevant five‑year period within 25 years before clinical onset is 1977 to 1982.
If the Tribunal forms the opinion that the hypothesis raised is a reasonable one, it must then (at step four) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Glanville’s death was war-caused.
Mrs Glanville’s Evidence
Mrs Glanville gave evidence at the hearing in the original proceedings on 20 May 2008. She said that she completed the dietary surveys in respect of her late husband with the assistance of her son who lives with her and who “verified a lot of the things that I said my husband ate” (transcript 20 May 2008, p51). Mrs Glanville said after the war her husband worked initially as a clerk in the taxation department. Thereafter, he worked as the manager of a local timber firm in Eastwood. Mrs Glanville was asked whether her husband did any of the labouring work himself. She said (p53): “Yes, he did. He was more out in the yard than what he was in the office. Lugging timber around and sheets of fibro and doing all that.” She said he was a very active man: “he played tennis, he played golf, he went swimming, he’d walk back to work every day.” He also liked surfing. Her evidence also indicates that Mr Glanville continued to play tennis and golf even after suffering a stroke (in 1987) which she described as “only a very mild stroke“ (p54). He stopped playing golf and tennis when he had knee surgery in 1991 when he was 67
Mrs Glanville said she prepared almost all her husband’s meals except when they went out for dinner occasionally. He did not put on a lot of weight as he burnt it all off because he was so active (p66). He put on weight ‘when his knees went on him’ and he had knee surgery in 1991.
Mrs Glanville said her husband’s family were “country people” from Inverell who moved to Gladesville after the war. She got on well with her mother-in-law, who died in 1969. Mrs Glanville said her husband would “always say what a wonderful cook his mother was, yes, a great pastry-maker, and I could never make pastry, and she was wonderful at it” (p72). Mrs Glanville tried to cook similar food to her mother-in-law because her husband liked this. Her husband “was a good eater and he liked fried food mainly” (p73). He did not really change his food habit at all, right from the time she met him, even when he knew he should be dieting “when he had the cholesterol problem and heart blockages”. In a statement dated 17 September 2010, provided for the remittal proceedings, Mrs Glanville said her husband did not tell her much about what he ate during the war. She said of him that:
6. There were times when we sat down to dinner after we were married when he would say things like, “I would have killed to have this during the war”, or “We didn’t get this in the Pacific”. He said this sort of thing about food like bacon and eggs, steak, chops and ice cream.
7. Keith enjoyed his food a great deal, and I had the impression from the way he spoke that he enjoyed it more because he didn’t have it during his service.
Mrs Glanville also said:
3. Keith did not speak much of his experiences during the war, but he did tell me that he fought the Japanese on two islands in the Pacific. He spent a part of that time fighting in a tank but he described how he landed on the beach in Tarakan and had to run from the boat to cover with bullets flying all around. Many of his mates were killed. One man went grey overnight with fear and had to be shipped out.
4. He also told me that he was on night patrol (I cannot remember where) and Japanese snipers were in the trees. One bullet missed his head by a couple of inches. He said he could have been killed on the spot.
Discussion of the Evidence and Findings
Apart from Mrs Glanville’s evidence, the other relevant evidence is that of the two consultant dietitians, Dr Dianne Volker and Dr Ruth English who each provided a number of reports. Since there was no specific evidence of Mr Glanville’s pre-war diet, they both used the estimate of animal fat of 126 gm/day in the food intake for an adult male derived from the 1936-1938 Survey of Household Food Budgets. Dr Volker estimated that during his war service, Mr Glanville’s animal fat intake was about 115 gm/day (report dated 4 January 2007, p1, transcript 21 May 2008, p89) and Dr English estimated this at 113.6 gm/day (report dated 22 September 2005, p1). Where the experts differed was on Mr Glanville’s post-war diet and, in particular, for the years 1977-1982.
In her third report dated 22 January 2007, with reference to SoP 28, Dr Volker estimated Mr Glanville’s post-war animal fat intake to be 185 gm/day, an increase of 59 gm/day and 47% over his pre-service diet. She said (p5):
… factors specific to war service affecting veterans include separation from normal life for periods of years, periods of panic, periods of fear interspersed with boredom, a lack of privacy, basic camping facilities, dull and repetitive cooking and abstinence from/longing for favourite/comfort foods. These experiences have the potential to influence post-war food choices.
In a letter to Mrs Glanville’s representative dated 15 December 2010, commenting on Mrs Glanville’s statement of 17 September 2010, Dr Volker said:
Mrs Glanville’s affidavit is interesting in its detail and alludes to in [sic] the field deprivations experienced by the late veteran. These deprivations, which included bland and boring food, resulted in the late veteran’s rejection of that kind of food on leaving the theatre of war and his adoption of a flavoursome dietary regimen high in animal fat.
In estimating Mr Glanville’s animal fat intake in the years 1977-1982, Dr Volker assumed a weight for Mr Glanville of 79 kg, a ‘moderate’ personal activity level (PAL) of 1.7 and a basal metabolic rate (BMR) (the largest component of daily energy expenditure) varying between 10% and 30%. Dr Volker adopted this range of variation, relying on an article by Dr PM Warwick, ‘Predicting energy requirements from estimates of energy expenditure’ in the Australian Journal of Nutrition and Dietetics (1989) 46 Supplement 3, in which she discusses “the most recent (Schofield) equations” for predicting BMR from body weight, age, and sex, which she says “are similar to those published by the FAO/WHO/UNU”. Dr Warwick states:
The ‘normal’ range of variation in BMR is such that most healthy individuals are expected to have measured BMRs which fall within about 10% of predicted values … [at pS6]
Physical activity uses more energy than remaining at rest, so it is essential to consider levels of physical activity when assessing energy requirements. [at pS7] …
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. [at pS19] …
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 active categories, although greater errors could occur in more activity individuals. [at pS19-21]
Dr Volker said the results of the Schofield equations should be considered a guide only.
In oral evidence, Dr Volker said there are three areas of disagreement between herself and Dr English in relation to Mr Glanville’s post-war diet: his estimated weight, his daily eating pattern and food frequency record, and the application of the Schofield equation (transcript 21 May 2008, p81). Dr Volker estimated Mr Glanville’s weight in the period 1977-1982 at 79 kg. She acknowledged that his weight was about 72 kg in 1988 but, at that time, he had surgery for a brain stem injury and in respect of renal calculi. Dr Volker said:
… it’s very easy to lose weight in those instances, so I was very comfortable with the 79 kilos, even though Mrs Glanville had said that his weight was fairly constant. Over 30 years, you don’t really notice much change, and it wasn’t a great change, so I felt that 79 was a reasonable weight for this veteran. [p 82]
The Tribunal notes that Mr Glanville’s recorded weight was 69 kg in 1946 and 72 kg in 1988. Mrs Glanville gave evidence that her husband was a very active man and, while he ate well, he did not put on a lot of weight, probably because he “burnt it all off” (transcript 20 May 2008, p66). His stroke in 1987 was very mild and he continued playing tennis after this (p54). However, Mrs Glanville commented that her husband gained weight after his knee surgery in 1991, and we note his recorded weight in 1993 was 80.25 kg.
Dr Volker said the weight estimated by Dr English of 71 or 72 kg was on the margin of ideal body weight and Dr Volker felt Mr Glanville “wouldn’t be on that margin, that he should be much further up into his weight range than 72” (p82). She said the daily eating pattern record and food frequency record prepared by Mrs Glanville correlated despite a few discrepancies for which Dr Volker allowed (p83). Dr Volker said that Dr English disagreed with Dr Warwick in allowing a predictive margin for errors of between 0.1 and 0.3 in the BMR.
Dr English said that “Flexibility in metabolism is surprisingly small and so is considered negligible for the purpose of specifying requirements” (report dated 22 September 2005, p12). She stated that recorded measurements of Mr Glanville’s body weight in 1946 and 1988 indicate that the veteran maintained a stable weight over the period of his post-service diet” (p1). Based on the daily eating pattern record and food frequency record prepared by Mrs Glanville, the likely animal fat content of that diet, and Mr Glanville’s energy requirement, his weight would have increased by about 30 kg a year and would have resulted in an “impossible weight gain” (p1). Dr English therefore concluded that the dietary record was invalid and overstated his intake of animal fat. She concluded (p2):
The animal fat intake and total energy intake of the diet that the late veteran is reported to be eating during his post-service period are excessive and are not commensurate with his age, his recorded body weight during this period, and his occupation.
Dr English repeated her conclusion in her later report dated 7 June 2007 (p2) relying on a later dietary questionnaire completed by Mrs Glanville. In oral evidence by conference telephone, Dr English confirmed the three areas where she disagreed with Dr Volker in relation to Mr Glanville’s post-war diet (transcript 9 April 2009, p6). Dr English also acknowledged that she disagreed with Dr Volker over Mr Glanville’s physical activity level. In relation to Dr Volker’s estimation of Mr Glanville’s weight at 79 kg, Dr English said this was based on an assumption of weight increase made by Dr Volker and Dr English said “we should always look for a medical report of a recorded weight and not make an assumption” (p8). With regard to Mr Glanville’s daily eating pattern, Dr English said answers to the dietary questionnaire completed by Mrs Glanville, given Mr Glanville’s energy requirements, would lead to a significant weight gain (p10). (In her report dated 7 June 2007 (p19), Dr English estimated that, based on Mrs Glanville’s answers, Mr Glanville would have made a weight gain of 10 kg per year, “leading to an impossible weight gain over a period of 20 years”.)
With regard to the application of the Schofield equation, Dr English allowed for a variation in the maximum energy requirement of plus or minus 10% as recommended by the Australian National Health and Medical Research Council (NHMRC) (p12). Dr Volker, however, applied variations of 0.1, 0.2 and 0.3 to the BMR obtained from the Schofield equation, resulting in three different values. She multiplied each of the resulting values with a ‘moderate’ physical activity level of 1.7 (see report dated 22 January 2007) to obtain the estimated energy requirements, to which she then applied the coefficient of variation of 10%
Dr English said she chose a physical activity factor of 1.8 for Mr Glanville based on recommendations of the United Nations and NHMRC (transcript, 9 April 2009, p12). In cross-examination, Dr English acknowledged that when considering Mr Glanville’s weight, she did not take into account that he had suffered a brain stem injury and renal calculi (p19). She was aware that he was put on a low fat diet because of heart problems (he had a cerebrovascular accident (a stroke) in 1987) and acknowledged that there might have been a reduction in Mr Glanville’s weight around that time (p25).
The Tribunal notes that in preparing her reports, Dr English appears to have rejected the assumptions made by Dr Volker that other medical factors, of which there is evidence in the clinical records, affected Mr Glanville’s weight around the time his weight was recorded in 1988. Dr Volker, on the other hand, was dismissive of Mrs Glanville’s evidence of her husband’s weight remaining fairly constant - because he was such an active person - until his knee problems in 1991 prevented this and he put on weight. However, it is clear that Mrs Glanville was aware of his having put on weight at the time when his weight was recorded as 80.25 kg in 1993.
Consideration/Discussion
As stated above, because there is no dispute that the first two steps prescribed by the Full Federal Court in Deledio are satisfied, the Tribunal must, in accordance with the third step, form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in SoP No 28. In Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 (Hill), at 594, the Full Federal Court said the hypothesis raised will be a reasonable one “if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP”. The Court said, at 597, that “a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable”. Heerey J’s explanation of step 3 in Deledio has already been referred to in paragraph 6, above. The hypothesis will not be reasonable if amongst other things, it is “obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous”.
In Mr Glanville’s case, the Applicant relies on the factor set out in paragraph 5(c) - increasing animal fat consumption at the stated level and for the stated period – to support her contention that a reasonable hypothesis has been raised connecting Mr Glanville’s death from malignant neoplasm of the prostate with the circumstances of his war service.
Mr Karp, for the Applicant, referred to Mrs Glanville’s evidence (at paragraphs 3 and 4 of her statement dated 15 December 2010, quoted above) about her husband’s wartime experiences on islands in the Pacific and about his enjoyment of certain (fatty) foods after the war. Mr Karp noted the decision in Repatriation Commission v Dunn (2006) 94 ALD 97; [2006] FCA 1703 (Dunn), at 111, where Nicholson J, in a similar case involving malignant neoplasm of the prostate, said that a hypothesis could not be raised as reasonable unless there was some material pointing to the connection between the relevant post-operational service consumption and the circumstances of the veteran’s service. Mr Karp submitted that in the present case, there is material pointing to each element of the SoP.
Miss Henderson, for the Commission, also referred to the decision in Dunn, where, at 111, Nicholson J went on to say, “If there is an assumed fact, it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.” Whilst emphasising that the Tribunal is not required to make findings of fact at step 3, Miss Henderson said, nevertheless, that in this case there is no material pointing to the increase in Mr Glanville’s consumption of animal fat being related to his war service.
Miss Henderson noted Dr Volker’s evidence (report dated 22 January 2007, p5) that the experiences of war service, including “separation from normal life for periods of years, periods of panic, periods of fear interspersed with boredom, a lack of privacy, basic camping facilities, dull and repetitive cooking with abstinence from/longing for favourite/comfort foods” … “have the potential to influence post-war food choices”. Miss Henderson contended that Dr Volker was hypothesising. There has to be material personal to the veteran pointing to his having changed his dietary habits. Miss Henderson noted that Mrs Glanville’s statement dated 17 September 2010 (referred to above) does not point to Mr Glanville increasing his consumption of fatty foods because of his service experience. Rather the picture presented by the evidence suggests that Mr Glanville enjoyed fatty foods before his war service, noted their absence during that service, and resumed consumption of fatty foods after his service. Miss Henderson submitted that there is no material pointing to Mr Glanville’s diet post-war being influenced by what happened during the war.
The Tribunal notes that Dr Volker made a similar statement in her letter dated 15 December 2010. Referring to Mrs Glanville’s statement of 17 September 2010, Dr Volker said:
These deprivations, which included bland and boring food, resulted in the late veteran’s rejection of that kind of food leaving the theatre of war and his adoption of a flavoursome dietary regime high in animal fat.
The Tribunal notes Mrs Glanville’s evidence about her husband’s family being “country people” and to his liking the food his mother cooked, which Mrs Glanville tried to emulate. The Tribunal also notes Dr English’s statement in her report dated 22 September 2005, at p9, that:
there would have been an increase in the availability and affordability of meat and dairy foods during the post-war service period compared to the war years. Secondly, both the diet and lifestyle of the veteran would have changed after his marriage in 1947, certainly compared to Mr Glanville’s service days.
Moreover, in her report dated 7 June 2007, at p13, she said:
There is little, if any, supporting evidence that food experiences during war service are sufficiently long-lasting to explain food patterns some 25 years after service.
The Tribunal agrees with Miss Henderson, that in the absence of any supporting evidence, Dr Volker’s hypothesis about the experience of Mr Glanville’s war service influencing his post-war diet appears essentially to be in the category of an ‘assumption’ in terms of Nicholson J’s comments in Dunn. The Tribunal is not satisfied that there is other material pointing to Mr Glanville’s diet post-war being influenced by what happened during the war. We agree with the comment made by Miss Henderson that the picture presented suggests that Mr Glanville liked fatty foods before his war service and resumed such consumption after his service at a time when he was married and, apparently, ‘managing’ financially (Mrs Glanville’s evidence, transcript 20 May 2008, p72). In relation to the third step in Deledio, we therefore conclude that the hypothesis is not reasonable because the material before the Tribunal does not point to a connection between Mr Glanville’s death from malignant neoplasm of the prostate and his war service. While acknowledging Mr Glanville’s service to the nation, Mrs Glanville’s claim must therefore fail.
The decision under review must therefore be affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Dr SH Toh, Member.
Signed: ...........[sgd]............................................................... A Veness, Associate
Date of Hearing: 25 March 2011
Date of Decision: 5 April 2011Applicant representative: Ms A Toliopoulos, Legal Aid Commission of NSW
Applicant counsel: Mr L Karp
Respondent representative: Ms E Warner Knight
Respondent counsel: Miss R Henderson
0
6
1