Harris and Repatriation Commission - [2002] AATA 230

DECISION AND REASONS FOR DECISION [2002] AATA 230

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/823

VETERANS APPEALS DIVISION        )
           Re      WINSOME HARRIS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date28 March 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  ..........Sgd. Mr J. Handley .......
  Senior Member
CATCHWORDS
Veterans' Entitlements - Widows application - death of husband by prostate cancer - whether increase in animal fat consumption post service - whether any connection between service & animal fat consumption - decision affirmed.
Re Keenan and Repatriation Commission 2000 AATA 707
Repatriation Commission v Deledio 1998 49 ALD 193
SoP No. 84 of 1999

REASONS FOR DECISION

28 March 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board made on 21 June 2001, which affirmed a decision previously made by the respondent on 25 May 2000 to refuse a claim for war widow's pension.
Mrs Harris is the widow of the late William Edward Harris who was born on 12 May 1924 and died on 13 January 1997. Mr Harris was a member of the Australian Army between 5 August 1942 and 13 January 1947. Part of his service was in New Guinea and accordingly Mrs Harris is entitled to the beneficial standard of proof.
Mr Harris died from carcinoma of the prostate. The clinical onset of the condition was October 1995. None of the above issues were in dispute. The issue between the parties was whether the applicant could satisfy a Statement of Principles, which, for the purposes of this application, concerned an enquiry into the deceased's pre and post-war diet.
The only applicable Statement of Principle is Instrument Number 84 of 1999.
In the present application, Mrs Harris relied on factor 5(c) which records that this factor must exist as a minimum 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 service being-
"Increase in 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; ….."
Animal fat is defined at paragraph 8 as meaning-
"animal fat means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;"
Mrs Harris and Mrs Blume, a daughter of the deceased, gave evidence at the hearing in Bendigo. Proofs of evidence prepared by them were received into evidence, as were proofs by Mrs E. Harris (the sister-in-law of the deceased) and Mr Blume. (Mrs E. Harris died approximately 9 months prior to the hearing). The Tribunal also received into evidence the documents the respondent prepared pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, reports of the deceased's treating Doctor and clinical notes, transcript of the VRB proceedings and reports of Doctor English and Doctor Kennardy (the latter two being consultant dieticians).
Winsome Merle Harris
Mrs Harris is the widow of the late William Edward Harris. She and the deceased were married on 21 February 1948 having courted for approximately 6 months. Mrs Harris said that her husband was employed as a "delivery boy" for a butcher in Castlemaine prior to service and subsequent to service he was employed with the State Rivers and Water Supply Commission performing labouring type work.
Mrs Harris adopted her Statement of 20 October 2000, which was received into evidence and which referred to her husband's post war diet. The Statement records that he consumed a breakfast of cereal together with fried or poached eggs, with toast coffee and milk. Morning tea comprised sandwiches with cheese, cold lamb and sauces, lunches mainly involved fried sausages and the evening meal comprised lamb or beef with vegetables, custards, fruit, cheese and butter. In evidence, Mrs Harris said that her husband gradually increased the quantity of food that he consumed after service and eventually weighed 13 stone 5 pound which was approximately 4 stone heavier than his discharge weight. In 1982 Mr Harris was diagnosed with diabetes and rapidly lost weight on advice of his doctors. His weight then reduced to 9 ½ stone.
By way of expansion upon the proof of evidence, Mrs Harris said in evidence that her husband enjoyed roasted meats particularly lamb and pork and she used dripping as a cooking medium. He also enjoyed butter. Fat was not trimmed from meat prior to cooking and it was also consumed. She said her husband enjoyed dairy foods, mainly cheese, cream and full cream milk.
Despite the physically arduous nature of his employment with the State Rivers and Water Supply Commission she said that her husband continued to put on weight.
Mrs Harris said that she knew nothing about her husband's pre-service diet and so far as his service diet was concerned, she was aware that he consumed bully beef and 'dog biscuits'.
In cross-examination Mrs Harris said that her husband's diet prior to service was "poor". The deceased lived with his father only from the age of 2 in impoverished circumstances. The only means of cooking was by an open fire and it was understood by Mrs Harris that most foods were cooked in a frypan. It was assumed therefore that cooked foods were fried.
With respect to usual cooking methods in the 1940's Mrs Harris agreed that persons mainly prepared roasted or fried meats using dripping or animal fat. Additionally, vegetables when available were served, as were sweets at desert.
With respect to a proof of evidence Mrs E. Harris completed the applicant said that she was the sister-in-law of the deceased. Mrs E. Harris prepared her proof of evidence with reference to information she learnt from her husband, who was the brother of the deceased.
In answer to some questions from me, Mrs Harris said that she met with the deceased's sister-in-law to obtain the proof of evidence. Whilst she was aware of the content of the Statement she was not aware of the quantities of food which the deceased consumed prior to service. To the extent that the Statement refers to consumption of "lamb", it was assumed that it was cooked as a leg roast.
Mrs Harris said she was aware that pre-service Australia was in the grip of a depression, where food was not plentiful. Nonetheless she said that her husband's father was a gardener by occupation and had a vegetable garden at his home. She understood that fruit and vegetables were available, but she was not aware in what quantities or by what method they were cooked or prepared. Mrs Harris was unaware of the availability or consumption of any dairy products prior to service.
Janice Blume
Mrs Blume is the daughter of the deceased. She prepared a proof of evidence dated 16 January 2001.
Mrs Blume had no recollection of her fathers eating habits prior to the age of 12, which would have been in 1960. She did recall thereafter that his main diet was fatty pork or other roasted meats, together with roasted vegetables and food generally which had a high animal fat content. She recalled that he frequently ate fried foods.
Mrs Blume was aware that her father was eventually diagnosed with diabetes and he rapidly lost weight.
With respect to her father's pre-war diet, Mrs Blume understood that he did eat potatoes and rice. She was not aware how the potatoes and rice were cooked. She assumed that meat was available prior to service and consumed and also assumed that it was fried.
In her proof of evidence Mrs Blume refers to her father's consumption of fatty foods, and in part the statement records "he seemed to me to be obsessed with foods that came from a frying pan".
Mrs E. Harris
Mr Furness the solicitor for the applicant lodged the Statement of Mrs E. Harris prior to the VRB appeal and lodged the original document at the hearing. It is undated and apparently was prepared following a letter that he wrote to her and apparently also at the request of the applicant. Mrs E. Harris died nine months prior to the hearing.
In her statement she said that she recalled her brother-in-law eating "light foods, like sausages, lamb, dry biscuits, fruit and custard and cheese". The Statement also records that she recalls her brother-in-law later putting on weight and being diagnosed with diabetes.
Mr Furness said that this statement was a reference to the deceased's pre-war diet. He said this was so because in his letter to Mrs Harris he asked her specifically to refer to the diet pre-war.
Colin Blume
Mr Blume provided a proof of evidence, which was undated but was received by Mr Furness on the day prior to the hearing. Mr Blume records that he served in the Army in New Guinea where the diet mainly was bully beef and biscuits. Occasionally dehydrated vegetables and powdered eggs were available. No reference is made in the statement to the quantities of food but he records that there were occasions where rations were not available and on other occasions tinned baby food was issued. Additionally, Mr Blume records that "the cooks" used bully beef as a basis for other meals such as stews, beef burgers and pasties.
Conclusions & Reasons For Decision
In all Widows applications at this Tribunal, the best witness is absent. Widows' applications are denied evidence from deceased servicemen and the material put forward in an attempt to establish a reasonable hypothesis comes from a number of different sources. Unfortunately, the applications made by Widows of World War II Veterans are subject to deficiencies in memory, the passage of time and the absence of witnesses (who have themselves either died or can no longer be located).
Applicants who initiate proceedings with respect to the Instrument in issue in these proceedings are necessarily disadvantaged not only by the above limitations but also because there is a requirement to identify the deceased's diet prior to service. That period of time often existed when an applicant widow did not know the deceased, the deceased's family members are no longer alive, and the deceased himself may not have communicated with his wife as to the circumstances of his pre-service diet.
The applicant is not required to establish her application on the balance of probabilities, however the material must point to the factors referred to in the applicable Instrument.
Relevantly, in the present application an examination of the deceased's pre-service and post-service diet is necessary. In making that examination, there will necessarily be a comparison of the animal fat consumed in order to determine whether there has been a 40% increase in the consumption of animal fat and then whether it has been to a level of 70 grams per day. The issue of connection or nexus with service is another matter.
In the present application it must be said that little is known about the deceased's pre-service diet.
Mrs Harris said that her husband lived with his father from the age of two and in those circumstances it is assumed that the deceased's father prepared meals. It is understood that cooked meals were prepared by the use of an open fire. An assumption was made that a frypan was used. It was known that the deceased's father was an avid gardener - both domestically and by way of employment - and an assumption was made that fresh fruit and vegetables were available.
Mrs E. Harris the sister-in-law of the deceased said in her letter to Mr Furness that the deceased consumed "light foods, like sausages, lamb, dry biscuits, fruit and custard and cheese".
Mrs Blume the daughter of the deceased understood that her father consumed potatoes and rice prior to service.
There appears to be little dispute that the foods the deceased consumed, after he was discharged, were heavily concentrated with animal fat. Having regard to the evidence heard in many other proceedings in this Tribunal involving an examination of this Statement of Principle, it appears that the deceased consumed at least 70 grams of animal fat per day.
I am however unable to conclude, having regard to what little is known about the diet of the deceased pre-service, that there was a 40% increase in the consumption of animal fat.
The reference Mrs E. Harris made to the deceased consuming "light foods, like sausages lamb, dried biscuits, fruit and custard and cheese", was said by Mr Furness to be a reference by her to the deceased's diet pre-service. If this is so, those foods would have contained animal fats. The quantities of those foods is not known, but on an analysis of her Statement alone there would not be a sufficient basis to find that there is material pointing to a 40% increase in animal fat consumption. In the alternative, the evidence of Mrs Blume would suggest that if the preponderance of food consumed was potatoes and rice (noting that in the ten years or so immediately prior to enlistment the deceased would have been exposed to the depression within which Australia suffered), relatively small amounts of animal fats would have been consumed, thereby permitting a finding of a 40% increase in animal fats subsequent to service.
Mrs Harris the applicant in these proceedings said that she knew little about her husband's pre-service diet, yet she understood that most foods were cooked in a frypan and it followed, she assumed, that those foods were fried.
I considered whether the evidence of the deceased's significant weight gain after his discharge was a factor pointing to a consumption of animal fat far greater than the consumption prior to service, thereby permitting a finding of a 40% increase in animal fat. To draw that conclusion would be unsafe and speculative. It would be well beyond the permissible limits of inference or assumption. As has been heard in many other applications in this Tribunal involving an examination of this Instrument, weight gain has its relevance, not only in the consumption of foods but in the quantities of foods consumed, a person's metabolism, the extent of a person exercising and the occupation that they held, to name but a few. Put another way, I cannot be satisfied that there is material pointing to a relatively low degree of animal fat consumption prior to service having regard to his weight at enlistment and subsequently.
I considered whether another approach to this review was to adopt the findings of Professor English of the pre-service diet of males and then determine whether a 40% increase in animal fat could be found. An approach of this type was adopted by the Tribunal in Re Keenan and Repatriation Commission 2000 AATA 707 where knowledge of pre-service diet was not known.
In her report Professor English concluded that the estimate of animal fat consumed in 1938/39 was 116.9 gms per day. She also records that a 1944 "Household Dietary Survey" found an estimate of 122.0 gms of animal fat was consumed by Australian males in (1944).
Additionally, little is known about the deceased's service other than it would appear - from the T-documents - that he served in New Guinea as an anti aircraft gunner. It would not be difficult to imagine that this was stressful. Whether this contributed to a high animal fat diet post service is not known. There was no medical evidence to support such a connection.
I note with some curiosity that the deceased was consuming "Tryptanol nerve tablets" in March 1982. This information is contained in the deceased's application to the Department of Social Security for an invalid pension. Whether he was prescribed this medication because of the effects of service is not known. In a report of 1 September 1982, Dr Gerroe, the deceased's treating GP, records the deceased as having a "depressive tendency" and as having a good response to Tryptanol. However the clinical notes are either of poor handwriting or poor photocopying and I cannot identify when Tryptanol was first prescribed.
The deceased also recorded in his application that he becomes "very depressed when at work". It may be that his apparent depression, for which he was medicated, was associated with his employment. Or it may be because of his very unfortunate family circumstances as an infant. Alternatively it may be by reason of his service. It would not be safe, when so little is known, to conclude that there is material which points to an increase in animal fat consumption as a soldier and a civilian by reason of stressful service, even if it was assumed, which probably is permissible, of the New Guinea service being stressful.
I doubt in the circumstances that the application can proceed beyond the first stage of the "Deledio" analysis (Repatriation Commission v Deledio 1998 49 ALD 193 at 206). I have reached this conclusion because it is doubtful that there is material that points to a hypothesis connecting circumstances of death with circumstances of service. In any event, even if the application could proceed to stage 3 of the Deledio analysis, it cannot be said that factor 5(c) exists as a minimum. I am not satisfied that the material upon which the application is based is consistent with the "template" of the applicable Statement of Principle and it therefore follows that the hypothesis advanced is not "reasonable" and the application cannot succeed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ..C. Irons ......................................................
  Secretary
Date/s of Hearing  21 January 2002
Date of Decision  28 March 2002
Counsel for the Applicant      Mr P. Furness
Solicitor for the Applicant
Counsel for the Respondent    Ms J. McCulloch
Solicitor for the Respondent