Holmes and Repatriation Commission - [2001] AATA 430

DECISION AND REASONS FOR DECISION [2001] AATA 430

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1546

VETERANS' APPEALS DIVISION       )
           Re      MERRIAN HOLMES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date22 May 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and finds that the death of the veteran, Mr Frederick Holmes, was war caused. The Applicant qualifies for payment of a war widow's pension with date of effect being 26 January 1998.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – widow's pension – war caused cancer of the prostate – reasonable hypothesis that the death of the veteran was war caused – animal fat consumption – operational service – overseas war service – service diet – increase in dietary fat consumption
Veterans' Entitlements Act 1986, ss 120(1), (3) and 120A
Statement of Principles concerning malignant neoplasm of the prostate, number 95 of 1996, as amended by number 191 of 1996 ("the SoP")
Re Keenan and Repatriation Commission [2000] AATA 707
Re Towle and Repatriation Commission [2000] AATA 706
Re Brown and Repatriation Commission [2000] AATA 708
Re Paint and Repatriation Commission [2000] AATA 709
Re Collingwood and Repatriation Commission [2000] AATA 710
Re Grace and Repatriation Commission [2000] AATA 711
Re Phillipi and Repatriation Commission (1997) 47 ALD 373
Re Gull and Repatriation Commission [2001] AATA 95
Repatriation Commission v Deledio 27 AAR 144

REASONS FOR DECISION

22 May 2001 M J Sassella, Senior Member

history of the application

On 30 March 1998 Merrian Holmes ("the Applicant") lodged a claim for war widow's pension with the Repatriation Commission ("the Respondent") (T4). She stated that her husband, Frederick Hubert Holmes ("the veteran") died of "pneumonia and cancer of prostrate [sic]." She further claimed in a statement attached to the claim (folio 19), that the prostate cancer was caused by excessive dietary fat. She believed that "this craving for fat developed from his war service…"
On 9 June 1998 the Respondent decided that the death of the veteran by prostate cancer was not related to his war service (T9). The Respondent found no evidence of an increase in animal fat consumption of at least 40%, to at least 70 grams a day for 20 years, which would satisfy the relevant Statement of Principles, no 95 of 1995 as amended by no 191 of 1996 ("SoP") for malignant neoplasm of the prostate.
On 20 July 1998 the Applicant requested a review of the Repatriation Commission pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T10). In the event that this was refused, she requested a review by the Veterans' Review Board ("the VRB").
On 21 September 1998 the Respondent decided not to conduct a s 31 review (T11).
On 26 August 1999 the VRB affirmed the Repatriation Commission of 9 June 1998 (T12). The VRB found that there was no evidence of the veteran's war service diet, nor of the manner of its preparation. Further there was no evidence that the veteran had acquired the habit of eating foods high in fat content during his service, nor that there were any compelling circumstances that required him to eat foods that had a high content of dietary fat. The VRB cast doubts over the credibility of the evidence of the Applicant in regard to the pre-war diet of the veteran, "who was then aged 20 years and whose occupation was a labourer". Accordingly the VRB found that the veteran's prostate cancer and death were not caused by his war service.
issues
The relevant issues in this matter are:
1)whether the Applicant's late husband's ("the veteran's") death from prostate cancer was war caused; and
2)whether the veteran's carcinoma of the prostate was caused by a war related increase in animal fat consumption; and in the alternative
3)whether the veteran's smoking habit was war caused; and
4)whether his death pneumonia was a result of this war caused smoking habit

legislation

The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") in particular ss 120(1), (3) and 120A, and the Statement of Principles concerning malignant neoplasm of the prostate, number 95 of 1995, as amended by number 191 of 1996 ("the SoP"). There is no SoP concerning pneumonia.
The Act
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, 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 incapacity of a person from injury or disease, or 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:
          (a)       that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person."
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
(a)       a claim under Part II that relates to the operational service rendered by a veteran;
(b)       a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)       has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)       has declared that it does not propose to make such a Statement of Principles.
(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); or
          (b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."

The Statement of Principles regarding malignant neoplasm of the prostate, no 95 of 1995 as amended by no 121 of 1996 is also relevant in this matter, specifically:
SoP No 191 of 1996
"The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.95 of 1995, (Statement of Principles concerning malignant neoplasm of the prostate), by:
1. omitting the factor (b) from paragraph 1, and replacing it with the following:
"(b) increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or
…
4. omitting the definitions from paragraph 4, and replacing them with the following:
"'animal fat' means fat contained in or derived from:
(a) beef, veal, pork, mutton or lamb or offal which may be in any form, for example, main dish, sandwich or mixed dish; in preserved meats, ham, frankfurters, sausages, salami, bologna, deli meat items, lard and bacon;
and
(b) dairy products, for example: milk, cream, sour cream, sherbet or ice milk, icecream, yogurt, cottage cheese, ricotta cheese, cream cheese, other cheese and butter;
…"
SoP No 95 of 1995
"1. Being of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that service, are:
(a) being exposed to herbicides in Vietnam; or
(b) inability to obtain appropriate clinical management for the malignant neoplasm of the prostate.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(b) must be related to any service rendered by a person.
3. The factor set out in paragraph 1(b) applies only where:
(a) the person's malignant neoplasm of the prostate was contracted before a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the malignant neoplasm of the prostate and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act.
4. For the purposes of this Statement of Principles:
"ICD code" means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472; "malignant neoplasm of the prostate" means a malignant neoplasm of the cells of the prostate gland, attracting ICD code 185; "being exposed to herbicides in Vietnam" may be said to have occurred only if the person had, before the clinical onset of malignant neoplasm of the prostate:
(a) rendered more than 30 days service on land in Vietnam; or
(b) regularly eaten fish, fish products, crustaceans, shellfish or meat from Vietnam; or
(c) regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or
(d) regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or
(e) sprayed or decanted herbicides in Vietnam as an occupational requirement."

the hearing

A hearing was held before the Tribunal on 24 April 2001. The Applicant was represented by Mr M Vincent of Counsel, the Respondent by Ms G Pacey from the advocacy section of the Department of Veterans' Affairs. The Applicant gave oral evidence. The following material was taken into evidence at the hearing:
Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 Exhibit TD1
Statement of the Applicant dated 24 November 2000   Exhibit A1
Report of Joanne Heyman dated 2 January 2001        Exhibit A2
Applicant's husband's service document dated 20 November 1948   Exhibit R1

the applicant's documentary evidence

In addition to giving oral evidence at the hearing, statements by the Applicant were included in the section 37 documents at folios 19 and 42-43. The former of these statements was attached to the Applicant's initial claim for war widow's pension dated 30 March 1998. In this statement the Applicant claimed that her husband's death from cancer of the prostate was due to excessive fat in his diet. She further stated that before her husband entered the army he liked "salads, fruit, vegetables, lean meat and that sort of food" but that after his discharge he was "addicted to the fats of any kind of meat, plus it had to be deep fried in deep fat…" Ultimately it was her claim in this statement that her husband's death was war caused in that his prostate cancer was due to his "craving for fat developed from his war service…"
The Applicant provided further evidence in support of her claim in regard to her husband's prostate cancer in a document that was tendered at the VRB hearing of 26 August 1999 (T12, pp42-43). This document was prepared by the Applicant's representative based on information provided by the Applicant and detailed the veteran's typical pre- and post-war diets. It can be summarised as follows:
Meal   Pre-war dietary fat content – 1938-1942         Post-war dietary fat content – 1946-1996
Breakfast      5 grams         55 grams
Lunch           17 grams       75.5 grams
Dinner 23.5 grams    61.6 grams
Total 40.5 grams per day on average    192 grams per day on average

Further to the detailing of the veteran's dietary fat intake on an average daily basis, this document stated that the veteran's pre-war diet consisted largely of salads, fruit, vegetables and lean meat. It further stated that on his return from service "he had developed a taste for fatty foods of any kind – that had to be deep fried. When he had bread or toast he piled the butter on thickly." The Applicant was drawing a clear distinction in these statements between the veteran's pre- and post-war dietary fat intake.

The Applicant provided a further statement dated 24 November 2000 which was taken into evidence at the hearing (Exhibit A1). This statement offered further evidence of the veteran's eating habits before and after his war service. The Applicant stated that a typical breakfast consisted of two slices of toast with a very thin spread of butter. Lunch usually consisted of two salad sandwiches, a piece of fruit and a cup of tea or water. The veteran typically ate a small serve of lean meat with salad and dressing or boiled vegetables. During the week he did not eat dessert. Further the Applicant stated that her husband generally did not eat snacks between meals and, if he did so, he would have a cup of tea with biscuits or jam. The Applicant cooked with a minimum of fat because it made her ill due to her gallstone condition, but after her husband's return from service "he liked everything cooked in fat." A typical post war breakfast would consist of two fried eggs and bacon cooked in dripping, with toast upon which "he piled on the butter." Lunch would consist of two sandwiches with meat and a serve of deep fried chips. Dinner included chops or steak cooked in dripping with fried vegetables or a small side salad with dressing. The veteran sometimes ate fried tomatoes and onion with his dinner and ate peaches and cream or cakes for dessert.
the applicant's oral evidence
Upon examination by Mr Vincent, the Applicant stated that the veteran was born on 14 September 1920 and was married when he was 18. After their marriage they lived in Armidale with the Applicant's sister and mother. At this time her husband was learning to shear sheep and was, at that stage of their marriage, not away from home very often. He was also employed as a fruit picker from time to time.
After the veteran's return from service he recommenced employment as a sheep shearer. He spent time away from home having to look for shearing work. The Applicant gave evidence that the shearers had a cook and she presumed that they were very well fed. (It is unclear to the Tribunal whether this meant that the food was nutritious, whether there was a great deal of it, or whether it meant both of these things). She also stated however that she was unsure what her husband ate when he was absent from home.
The Applicant confirmed her statement (Exhibit A1, para 6) that she ate meals with her husband, but ate different foods due to her liver condition. She further confirmed that she had a gallstone condition and that the eating of fatty foods, the foods that her husband ate after his war service, made her ill.
The Applicant stated that before enlistment in the army her husband was very thin and weighed less than nine stone. When he returned from service he weighed around 12½ stone. The veteran remained at or around this weight until early 1996, when he became terminally ill with prostate cancer.
The Respondent questioned the Applicant as to her husband's opinion of army food. The Applicant stated that her husband "was not wrapped in it" but also stated that she didn't know why. Upon further questioning the Applicant stated that she was unaware of the types of food that her husband ate while in the army. Her husband did not talk about the war much at all except that he ate bully beef and tinned foods and that beer and cigarettes were freely available.
The Respondent then took the Applicant to folio 19 of the s 37 documents where the Applicant had provided a statement with the initial claim for war widow's pension (T4). The Applicant stated that the foods she nominated as those that her husband ate were a true indication of his taste before he joined the army. She also confirmed that her husband was periodically away from home when working as a shearer and that she did not know exactly what he ate at those times. She stated that the shearers ate mostly mutton but that she did not know whether he ate the fat or not.
The Respondent further questioned the Applicant as to the veteran's consumption of juice, as stated at paragraph 3 of the Applicant's statement (Exhibit A1). The Applicant stated that her husband drank juice only at home and whilst at work would drink water from a waterbag.
The Respondent took the Applicant to Exhibit A2. The Applicant confirmed that her husband ate, amongst other things, fruit for breakfast, perhaps an apple, and that due to their financial situation it was not at all an unusual practice.
The Applicant was asked by the Respondent why she had given the dietician, Ms Joanne Heyman, more information about her husband's eating habits than she had detailed in her earlier statements. Specifically the Respondent brought to the attention of the Applicant the fact that she had, in her earlier statements, failed to mention that lean meat and cheese were included in the veteran's pre-war diet. The Applicant had also failed to mention the fact that scones with cream and cakes were a part of the veteran's post-war diet. In response the Applicant stated that it was impossible to remember everything, but that she could certainly remember a great deal of what she cooked and prepared for her husband.
evidence of joanne heyman
On 2 January 2001 Joanne Heyman, dietician, provided a report on the veteran's dietary habits (Exhibit A2). She stated that the Applicant's description of her husband's pre-war eating habits was consistent with the fact that the veteran was underweight at the time of enlistment. Ms Heyman further stated that, based on Dr Ruth English's assessment of the animal fat content in army rations during World War II, taken from Animal Fat in the Australian Diet including the Armed Services' rations in World War II, the veteran's dietary fat intake increased significantly when he joined the service. She stated that, based on the information she had received from the Applicant, the veteran's dietary fat intake went from an average of 50.5 grams per day to as much as 131.8 grams per day in New Guinea in 1944-1945. It was further reported that there was an increase of between 99% and 161% in the fat content of the veteran's diet, depending on where he was situated in the period of his war service. Ms Heyman concluded that the veteran's post-war diet contained an average of 141.4 grams of fat per day. She also noted that the veteran was slightly underweight for a man of his height when he entered the service - 123lb (55.9 kg). When the veteran returned from service he weighed 138lb (62.7 kg) despite being engaged in strenuous stevedoring work, similar in activity levels to shearing and fruit picking. Ms Heyman stated that "the 6.8 kg increase in Mr Holmes' weight during his 4 years of service is probably due to the higher fat content…of his service diet." She concludes, "…Mr Holmes' eating patterns I believe they have been significantly influenced by his period of service in the army."
applicant's submissions

Mr Vincent submitted that the Applicant had conceded nothing in her oral evidence in relation to the dietary details of her husband. Although the Respondent had sought to cast doubt over the credibility of the Applicant's evidence, the Applicant had merely supplied extra information when she was asked specific and relevant questions. He further stated that the Applicant appeared to have a good memory and that overall her evidence was clear and, given the passage of time, very precise. The fact that the Applicant admitted a lack of knowledge where appropriate was not to impinge on her credibility. It was his submission that the Applicant should be seen by the Tribunal as a reliable witness.
Mr Vincent further submitted that a great deal was known about the veteran's pre-war diet and cited authorities where, despite there being little information about the pre-war diets of veterans, prostate cancer was accepted as a war caused disability on the basis of uncorroborated evidence and surmise as to pre-war diets of the various veterans.It was also submitted by the Applicant that a great deal is known about the animal fat content of service diets in World War II and therefore it can be presumed that, in this matter, the veteran's dietary fat intake can be taken to have increased during the period of his army service.
Counsel further submitted that according to the SoP, the veteran easily meets the requirements of an increase in his dietary animal fat intake of 40% over a period of twenty years. The fact that he ate so little animal fat before his war service means that this fact can be easily established.
Mr Vincent referred to the report of Ms Heyman who, he submitted, had provided a balanced and well-informed report on the veteran's pre- and post-war eating habits. Apart from documenting as precisely as possible the average fat content of the veteran's diet before and after his service, it also provides evidence of the veteran's weight increase of 6.8 kg after he returned to Australia.
Counsel then referred to Re Keenan and Repatriation Commission [2000] AATA 707, in particular paragraphs 56 and 58. In that matter the tribunal noted that the discussion on fat ingestion is complex and the reasons for preference for certain foods cannot be explained by a single factor only. In paragraph 58 the tribunal found that it was not appropriate to focus on accurate levels of fat as the only factor in considering excessive fat ingestion. Very little was known about the veteran's pre-war diet but a reasonable hypothesis was established in linking his post war diet to prostate cancer. The case of Re Keenan (supra) was contrasted with the current matter before the Tribunal in that a great deal is known about the veteran's pre- and post-war diets and a 40% increase in dietary fat intake can easily be established, as is evidenced in Exhibit A2. The quality of evidence in this matter is much higher than in Re Keenan.
In relation to paragraphs 2 and 3 of the applicable SoP which require in effect that there is something intrinsic in the war service that caused the veteran to consume increased animal fat paragraph 58 of the Keenan (supra) decision is instructive. The tribunal in that paragraph explained the service contribution to diet and the Applicant in the present appeal adopted what is said there to show that paragraphs 2 and 3 of the SoP are met. Paragraph 58 reads:
"The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected."
The Applicant then referred to Re Towle and Repatriation Commission [2000] AATA 706. In that matter the Applicant was successful even though her husband the veteran weighed more on enlistment than on his discharge. Despite the fact that the applicant's evidence was, as was noted at paragraphs 41 and 42, somewhat dubious, the tribunal found that the veteran's prostate cancer was war caused.
Mr Vincent then took the Tribunal to Re Brown and Repatriation Commission [2000] AATA 708. In that matter the tribunal found that it was not necessary to establish a quantification of the war-time fat intake or minimum duration of exposure before a link between service and post-war ingestion of fat can be established. This was contrasted with the current matter at hand in that there is reliable evidence of both pre- and post-war diets, establishing a clear link between service and post war ingestion of fat.
The Applicant cited Re Paint and Repatriation Commission [2000] AATA 709 as a further authority. In that matter the veteran's weight was reduced whilst in service, but the applicant was nevertheless successful in having her husband's prostate cancer and resulting death accepted by the tribunal as war caused.
In Re Collingwood and Repatriation Commission [2000] AATA 710, it was submitted by Mr Vincent that nothing was known or could be established about the veteran's pre-war diet and that a causal link could not be established between the conditions of service and the post war consumption of fat. The veteran's death was found not to be war caused.
Counsel for the Applicant then cited three further cases where the applicants' husbands' deaths from prostate cancer, or the applicant's condition of prostate cancer, were found not to be war caused. These were Re Grace and Repatriation Commission [2000] AATA 711, Re Phillipi and Repatriation Commission (1997) 47 ALD 373 and Re Gull and Repatriation Commission [2001] AATA 95, the last two of which the Respondent intended to refer to as authorities. It was Mr Vincent's submission that the evidence before the Tribunal in the current matter is, on its own merits, more reliable than it was in these cases. He used them to illustrate his contention that the Applicant's case was far different in terms of the weight of the evidence and in the existence of a clear distinction between the pre- and post-war diets and their fat content. In the current matter it was also possible to establish a clear increase in the veteran's weight during and after service.
Mr Vincent pointed out that Phillipi (supra) was decided before the cases cited earlier. Those cases (ie Keenan (supra) et al) were test cases presided over by the tribunal President and with three members sitting. All were delivered on 17 August 2000. The authority of the odd case on prostate cancer decided before that date must be doubtful. Mr Vincent addressed the Phillipi case (supra) and made the following comments. Paragraphs 39 and 47 saw the tribunal at a loss because of the paucity of evidence as to the actual or likely consumption of animal fat by the veteran at the various stages of his life. There was no evidence from a dietitian. The instant case is not affected by a similar difficulty. Additionally, as paragraph 49 illustrates, this was a case involving proof to the standard of reasonable satisfaction. The instant case is a "reasonable hypothesis" case.
As regards Re Gull (supra), this case was decided on 12 February 2001 but it does not refer at all to the cases such as Re Keenan (supra), decided with presidential involvement. Its value must therefore be diminished. He noted also that the tribunal had misapplied step 3 in Repatriation Commission v Deledio (1998) 27 AAR 144 by making factual findings at that stage rather than as a part of step 4. (In the Tribunal's view, that is a valid criticism. See also Dixon v Repatriation Commission (1999) 29 AAR 235, 243).
Mr Vincent submitted that Gull (supra) was also problematic because it had been decided on the papers. On the facts, the weight of the veteran seemed to have reduced during service, the evidence suggested some considerable fat intake before the war and the veteran's increased fat consumption seemed to commence some years after the war. Finally, the veteran's weight did not increase during his life after service.
In summary Mr Vincent submitted that the Tribunal could with confidence decide that, on the basis of the evidence before it, the veteran's dietary animal fat content was increased by more than 40% and that he consumed more than 70 grams of animal fat per day, thereby meeting the requirements of the SoP. He further submitted that there is more evidence in support of the application in this case than in any of authorities he cited.
The Respondent's submissions
Ms Pacey for the Respondent submitted that all the cases cited by both herself and the Applicant were decided on their individual merits, as should the case presently before the Tribunal.
The Respondent further submitted that the evidence of the Applicant herself was somewhat unreliable. There were instances where the Applicant could not remember details of her husband's diet or had later included details that had earlier been forgotten. There were several variations between the original statement that accompanied the original application and the information that was contained in the report of Ms Heyman (Exhibit A1). Ms Pacey pointed out that the Respondent was not saying that the Applicant was deliberately misleading the Tribunal. It could not be expected that someone of 85 years could or should remember details about such mundane events of some 50 years ago. It was thus submitted that the Applicant's evidence was unreliable.
It was further submitted by the Respondent that the veteran's pre-war diet was understated. He ate toast and golden syrup. He went away from home while he was shearing and apparently ate well, probably mutton, at these times. The Applicant conceded that her husband probably ate mutton or lamb when he was away but could not be sure of the fat content of his meals.
Ms Pacey submitted that there is no evidence of the diet that the veteran was exposed to during his service and therefore no link could be established that caused a significant service related increase in the veteran's dietary fat intake. It was her submission that it should be assumed that he ate from the standard diet given to servicemen. Ms Pacey referred to one of the veteran's service documents (Exhibit R1) on which it states his weight as at 6 December 1948 as 9st 7lb. There was no evidence of the influence of home cooking increasing his weight at that stage of the veteran's life.
In relation to his post-war diet, the Respondent contended that it was the veteran's choice as to what he ate, not merely a result of his war service dietary habits.
The Respondent cited Re Phillipi (supra) which was discussed earlier by Mr Vincent.
The Respondent used Re Gull (supra) as a source of evidence of rationing. In paragraph 26 the tribunal noted that rationing after the second World War may have reduced levels of animal fat consumption in the civilian population as compared to pre-war levels. This was taken to cast doubt on the suggestion in that case that the veteran's fat consumption rose whereas his weight did not. The Respondent indicated paragraph 16 in Gull (supra) where a Dr Kennardy gave evidence that fat appears not to be habit-forming. The evidence is that fat preference may be associated with consumption, but the relationship is relative since higher fat is generally preferred over lower fat in the population. From this Ms Pacey put to the Tribunal that fat is not habit forming. It is consumed voluntarily.
Ms Pacey made a final point: the Applicant's evidence was that the veteran did not like the army food. That could have been because it was fatty and oily. He was in Papua New Guinea for 21 months. Why would he want to return home and demand fatty foods when he had not liked them?
Mr Vincent made several points in reply. The point on rationing after the war may cut another way. Even if fatty foods were scarce at that time the demand for them could still have been satisfied later when they became available. The Respondent had assumed that the veteran's criticism of army food was because it was fatty. The Applicant's evidence had not been to that effect. The dislike may have been because of other features of the food. It is not relevant whether fat consumption is habit forming. The SoP does not require that animal fat be consumed as a habit. It is enough if there is an increase in consumption as a result of preference for fat.
Findings on material questions of fact and the evidence on which those facts have been found
It should be noted that the Tribunal has not had access to a transcript of the proceedings in preparation of these reasons.
In applying s 120A of the Act the Tribunal follows the case of Repatriation Commission v Deledio (supra), where the full court identified four steps to follow in determining whether a condition is war-caused and how the relevant SoP should be applied:
"…
…[T]he course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.       If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. …
3.       If a SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.       The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or of the application of any presumption will be involved.
…"
Step 1 is easily satisfied. There is a hypothesis raised that it was the Veteran's exposure to a diet rich in animal fat in the army that caused him to develop a preference for food rich in animal fat after service. Further, the hypothesis is that the veteran's heavy consumption of animal fat caused his malignant neoplasm of the prostate.
Step 2 inquires as to the existence of a SoP. There is a SoP. See paragraph 8 of these reasons for decision.
Step 3 requires that the hypothesis raised must be sufficient to satisfy the template provided by the SoP. The hypothesis in this case is built around the propositions that the veteran's rate of intake of animal fats increased after service by more than 40% compared to before service; that the veteran's consumption of animal fat was at a level of at least 70 grams a day after service; that this increase in animal fat consumption took place for at least 20 years before the clinical onset of malignant neoplasm of the prostate; and that the increase in consumption of animal fat was service caused. As these factors mirror the SoP template step 3 is satisfied.
In step 4 of Deledio (supra) the Tribunal can consider whether, on the facts, the hypothesis is made out.
The Tribunal has considered both the documentary and written evidence of the Applicant and finds that her credibility and reliability are open to question. In the statements at T4 and Exhibit A1 the Applicant has gone into considerable detail in documenting the minutiae of the veteran's pre-war diet and its fat content. She gave an even more detailed account to Ms Heyman, who prepared a report based on the Applicant's evidence, and the Applicant provided more information to the Tribunal at the hearing. This evidence included details about the amount of butter spread on toast, the content of sandwiches and the manner of general food preparation. The details between the different accounts are at times inconsistent and are also not consistent with her assertion upon cross-examination that it was difficult for her to remember certain particulars about her husband's meals from a long time ago. The Tribunal noted in particular that the Applicant's evidence initially was that the veteran had salad sandwiches for lunch before the war. It was only on insistent questioning by the Tribunal that the Applicant was prepared to concede that sometimes the sandwich fillings would vary and would include meat or cheese, foods containing animal fat. The Tribunal accepts that in its general tenor the Applicant's evidence may be reliable but also notes that at times it was self-serving and possibly exaggerated.
The Tribunal further finds that, as a source for establishing a distinction between the veteran's pre- and post-war dietary fat ingestion, and as a result a causal link between the Applicant's service and his post war diet, the report of Ms Joanne Heyman is reliable as evidence. Ms Heyman noted in her report that the Applicant had gained 6.8 kg during his army service and she felt that the veteran's dietary fat intake during service was the most likely cause. Ms Heyman also noted the rigorous physical nature of the work that the veteran was doing at the time. She also had at her disposal a reference book that confirmed that war service diets were indeed high in fat content. By using both the Applicant's evidence as a guide, and Ms Heyman's report for concrete and more scientific details, the Tribunal finds that there is no sufficient evidence to regard the hypothesis raised as other than reasonable. The Tribunal is not satisfied beyond reasonable doubt, pursuant to s 120(1) of the Act, that the death of the veteran from prostate cancer was not war caused.
The Tribunal has in this regard found that the veteran's dietary animal fat intake increased by a minimum of 40% up to at least 70 grams per day, in all probability even more than this amount, fulfilling and exceeding the requirements of factor 1b of the SoP.
In coming to this finding the Tribunal has taken into account the Applicant's oral and documentary evidence and the report of Ms Heyman.
The Tribunal has already found that the evidence of the Applicant, whilst at times self-serving and somewhat exaggerated, is nevertheless reliable in relation to the veteran's general eating habits both before and after his army service. It has further found that the report of Ms Heyman is reliable for assessing whether the veteran's dietary habits and in particular his consumption of animal fat were war caused.

As a result of the above findings it is not necessary to consider the other hypothesis raised linking the veteran's war service with his death from pneumonia. In any case, this issue was not the subject of any argument by the parties at the hearing.
Conclusion
The Tribunal finds that the veteran's post-service dietary fat ingestion was linked to his diet during his operational war service between 2 March 1942 and 1 February 1946. The veteran's death is considered to have been war caused in the relevant sense.
Decision
The Tribunal sets aside the decision under review and finds that the death of the veteran, Mr Frederick Holmes, was war caused. The Applicant qualifies for payment of a war widow's pension with date of effect being 26 January 1998.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  24 April 2001
Date of Decision  22 May 2001
Solicitor for the Applicant  Dibbs, Barker Gosling, Solicitors
Counsel for the Applicant  Mr M Vincent
Representative of the Respondent          Ms G Pacey