Ida Palmer and Repatriation Commission
[2014] AATA 571
•15 August 2014
[2014] AATA 571
Division Veterans' Appeals Division File Number
2013/5229
Re
Ida Palmer
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 15 August 2014 Place Brisbane The Tribunal affirms the decision under review.
........................[Sgd]............................................
Dr M Denovan, Member
CATCHWORDS
VETERAN’S AFFAIRS – Pensions and benefits – Widow’s pension – Whether veteran’s death was war-caused – No causal connection between veteran’s service and his increased animal
fat consumption – Reasonable hypothesis test not satisfied – Decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 120, 196B
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 12 ALD 389
Mason v Repatriation Commission [2000] FCA 1409Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning Malignant Neoplasm of the Prostate (No. 53 of 2014)
REASONS FOR DECISION
Dr M Denovan, Member
15 August 2014
INTRODUCTION
Walter Palmer (“the veteran”) was born in 1912 and served in the Australian Army during World War II from 18 December 1941 to 21 February 1946. As the veteran served outside Australia, the whole period of his war-time service is “operational service” in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The veteran died on 9 April 1989 at the age of 77 years. The cause of death was certified as metastatic carcinoma and carcinoma of the prostate.
Mrs Ida Palmer, the veteran’s widow (“the applicant”), lodged a claim for pension, on the basis that the veteran's death was war-caused. The claim was refused by a delegate of the Repatriation Commission (“the respondent”) in a decision dated 5 February 2013. That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 2 August 2013. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision on 10 October 2013.
Mrs Palmer has advanced the hypothesis that her husband developed prostate cancer as a result of increasing his animal fat intake by at least 40% and to at least 50g a day, for at least 5 years of the 25 years prior to the clinical onset of the condition, as a result of his service.
The respondent contends that it is unlikely Mr Palmer consumed the requisite 50g of animal fat at any time, as he was reportedly an unwell man, and was advised to consume a low fat died in the 1950s and became emaciated. The respondent also contends that even if Mr Palmer did consume the requisite amount of animal fat, this was a matter of personal choice, and not related to his service.
ISSUES AND THE LAW
The relevant law is contained in the Act. The Tribunal is required to determine, on the balance of probabilities, whether the pre-conditions other than causation had been made out. Next, the Tribunal is required to determine on the balance of probabilities what ‘kind of death' the veteran suffered. This involves the identification, on the balance of probabilities, of any “kinds of death” which were applicable to that death.
In this case, the pre-conditions to addressing the issue of the relevant “kind of death” are not in dispute: namely that Mr Palmer was a veteran who died and Mrs Palmer is his widow. It is also not in dispute that the applicant died from metastatic carcinoma of the prostate.
I must determine whether the veteran’s death was war-caused. The issue of whether the death was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”). In Deledio the Court said there was a four-stage process involved in the determination of whether an injury, disease or death was war-caused. At the first stage, the decision maker has to consider whether the whole of the material points to a hypothesis connecting the death (or injury or disease) with the circumstances of the veteran’s service. If not, then the application fails. At the second stage, where the material raises such an hypothesis, the question is whether there is a Statement of Principles (“SoP”) in force. At the third stage (where an SoP is in force), the Tribunal must decide whether the hypothesis is consistent with the “template” in the SoP; that is, whether one or more of the minimum factors the SoP lists are present and considering whether one or more of them is related to the relevant service, which, in turn, involves the application of s 196B(14) of the Act.[1] Until this stage is complete, the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis. It is not to determine whether the material before it establishes the necessary facts, only if the material “points to some fact or facts (“the raised facts”) which support the hypothesis”,[2] which in turn must be supported by the applicable SoP. If, in accordance with these principles, the material raises a reasonable hypothesis connecting the service and the injury, disease or death, the claim has to be dealt with in accordance with s 120(1); that is the fourth stage. It is only at the fourth stage that fact-finding is to occur.[3]
[1] Deledio at 97-98.
[2] Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ.
[3] Deledio at 97-98.
Relevant statement of principles
Both parties agree the relevant SoP is the SoP concerning Malignant Neoplasm of the Prostate (No. 53 of 2014) and the factor relied upon by the applicant is in cl 6(c), which reads:
increasing animal fat consumption by at least 40 percent and to at least 50 grams per day, and maintaining these levels for at least five years within the 25 years before the clinical onset of malignant neoplasm of the prostate;
When the claim was lodged, the relevant SoP was Instrument number 28 of 2005, as amended by Instrument 77 of 2012 and the relevant factor was at cl 5(c). The relevant factor reads identically in both SoPs.
Was the veteran’s kind of death war-caused?
The hypothesis advanced on behalf of the applicant is that the veteran’s circumstances satisfy the factor at cl 6(c) of the SoP.
At this stage in the process, Deledio prescribes that I must consider whether the material before me points to positive answers to the following questions: (1) did Mr Palmer increase his animal fat consumption by at least 40% and to at least 50 grams a day, for a minimum of 5 of the 25 years prior to the clinical onset of prostate carcinoma?; and (2) if so, was that increase connected to his service?
According to the death certificate, the clinical onset of Mr Palmer’s prostate carcinoma was in 1986. Mr Palmer would have needed to consume the required amount of animal fat for at least 5 years at some time during the period from 1961 to 1986.
Ms Janet McFarlane, the applicant’s daughter, provided a written statement in which she said that the applicant had informed her that the veteran’s diet was low in animal fats when he was growing up in the United Kingdom, and that when he was employed as a farm labourer, prior to his operational service, he survived on a very restricted diet. As Mrs Palmer did not know her husband before the war, she is not in a position to provide an estimate of the late veteran’s animal fat consumption prior to his service. Both parties agree that the correct approach is to assume that the veteran consumed an average consumption of animal fat in his diet prior to enlistment. Both parties referred me to a report by Dr Ruth English which has been relied on by the Tribunal in previous matters of a similar nature. The report outlines the animal fat content in pre-war civilian, wartime army rations and, post-war trends in animal fat. The average pre-war animal fat consumption is estimated to be 128 grams per day.
Mrs Palmer completed a dietary survey in 2001. On the basis of that survey, nutritionist Trudy Williams concluded that Mr Palmer consumer a daily intake of 282 grams of fat. Ms Williams recommended that the results be treated with caution. She noted the estimated energy intake from fat sources alone far exceeded the estimated energy requirements of a typical older male, and were 44% greater than the total energy requirements of an adult male. In 1989 Mrs Palmer provided a statement to the Repatriation Commission in which she said that her husband was not a well man, that he had been placed on a low fat diet from 1951, his weight was only 7-8 stones, he had become very emaciated, and that he relied upon her help to continue working the farm.
As stated, it is not appropriate for the Tribunal to make findings of fact at this point of the decision making process, and I accept that there is some evidence pointing to the late veteran having increased his animal fat intake in the required amounts and for the required period to satisfy that element of the factor in the SoP.
The next consideration is the second limb of the raised hypothesis; that is, whether there is evidence that this increase was causally related to his service. Mr Williams contended that consuming an increase in dietary animal fat during service does not modify any food preference.
Mr Anthony Harding, for the applicant, referred to evidence given before previous hearings by psychologist Dr Kenardy in support of his contention that the short period of high animal fat intake could have been sufficient to change the veteran’s preference and desire to eat animal fat. Mrs Palmer provided no evidence which points to Mr Palmer’s increase in consumption of animal fat being causally related to his service. Dr Kenardy’s evidence refers to how a person would consume fat if they developed a preference for fat during service. In my opinion, it does not advance the applicant’s case, and is certainly not evidence that points to the proposition that Mr Palmer developed a preference for animal fat during his service.
It may be the case that the veteran’s first exposure to meals containing an amount of animal fat which was normal for the era, was in his late 20s when he enlisted. That the veteran may first have had access to regular meals containing animal fat during service does not mean that service caused him to continue eating that diet later, merely that service provided the place and time that he found he liked such food. There is no evidence before the Tribunal that points to the eating of fat being habit forming, nor that in some way the veteran was compelled to eat animal fat after discharge as a result of service.
The Act does not permit the Tribunal to find that a causal link exists where there is no evidence: Mason v Repatriation Commission [2000] FCA 1409, per Weinberg J at [75] to [76].
In the Full Federal Court decision of East v Repatriation Commission (1987) 12 ALD 389, the Court concluded that “a ‘reasonable hypothesis’… required more than a possibility, not fanciful or unreal, consistent with the known facts”.
I have therefore formed the opinion that the hypothesis raised by the material before me is not reasonable because the material does not point to a causal connection between
Mr Palmer’s service and his increased consumption of animal fat.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ..........................[Sgd]...........................................
Associate
Dated 15 August 2014
Date of hearing 18 June 2014 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Terence O'Connor Solicitor Solicitors for the Respondent Mr K Rudge, Department of Veterans' Affairs
0
4
0