Jackson and Repatriation Commission
[2008] AATA 650
•28 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 650
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600170
VETERANS' APPEALS DIVISION ) Re DOROTHY MYRTLE JACKSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)Date28 July 2008
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – widow’s pension – operational service – claim that death through malignant neoplasm of the prostate was war-caused through increased animal fat consumption due to deprivation during service – decision affirmed
Veterans’ Entitlements Act 1986 ss 8, 9, 13, 119, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Young Nickel v Repatriation Commission [2004] FCA 1691
Collins v Administrative Appeals Tribunal [2007] FCAFC 116Bushell v Repatriation Commission (1992) 175 CLR 408
Statement of Principles Instrument No 28 of 2005
REASONS FOR DECISION
28 July 2008 Mr J G Short (Member)
Professor P Reilly AO (Member)1. Mrs Dorothy Jackson sought review of a decision of the respondent (the Commission) dated 22 October 2003 which rejected her claim for widow’s pension relating to the death of her late husband on 26 June 1997 at the age of 78 years, on the basis that the veteran’s death was not war-caused. The decision was affirmed by the Veterans’ Review Board (the VRB) on 30 March 2006.
issue before the tribunal
2. The issue before the Tribunal is whether the late veteran’s death from malignant neoplasm of the prostate was war-caused.
3. Mr Jackson served in the Royal Australian Air Force from 30 July 1940 until 27 November 1945. Because he served in New Guinea, the whole of this service constitutes operational service as defined in the Veterans’ Entitlements Act 1986 (the VE Act).
legislative background
4. Section 8 of the VE Act sets out when an injury or disease is taken to be war-caused. If the veteran’s death resulted from an occurrence which happened while the veteran was rendering operational service or arose out of, or was attributable to, his eligible war service, or the veterans’ death was due to a disease that he would not have contracted, but for his having rendered eligible war service, or but for changes in his environment consequent upon having rendered eligible war service, then his death will be taken to be war-caused.
5. Where a veteran’s death is war-caused, the Commonwealth is liable to pay pension by way of compensation to a dependent, which includes a widow (s 13(1) of the VE Act).
6. As the veteran rendered operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sub-sections require the Tribunal to find that the veteran’s death was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding.
7. If the Repatriation Medical Authority (RMA) is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to the veteran’s service, the RMA must determine a Statement of Principles (SoP) (s 196B of the VE Act). The SoP sets of the factors, one of which as a minimum must exist (and which must be related to the veteran’s service), before it can be said that a reasonable hypothesis has been raised connecting the condition with that service.
evidence
8. Mrs Jackson gave evidence. Evidence was also given by Dr Volker and Dr English. Dr Volker practices as a consultant dietician and a nutritional scientist. Dr English as a nutrition consultant.
9. Mrs Jackson told the Tribunal that she had met her late husband in 1941, that is during his service. At that time he had been stationed in Darwin. She said they married in 1943 and that her husband was thereafter posted to New Guinea where he served for approximately 19 months. She said that her husband did not talk much about his diet or other circumstances in New Guinea, except having “fatty camp pie” in tins included with his rations. She thought he did not like it much, but that he may have got used to it. She said that she did not know much about his pre-war dietary intake.
10. Mrs Jackson said that immediately after the war Mr Jackson obtained work as a stoker on the railways. She said that from about 1945 to about 1946 he worked for the railways at Outer Harbour and rode his bike from St Peters to Outer Harbour and return each day for work. She also pointed out that his work as a stoker was very heavy work.
11. Mrs Jackson said that after 1946 her husband found employment at the Adelaide Rope and Nail Company. She said that at that time her late husband both resided and worked at Croydon. They later moved to Ferryden Park and Mr Jackson resumed riding a bike to work. She said that during his last two years of work at Adelaide Rope and Nail, her husband worked as a manager, performing more sedentary activities.
12. Mrs Jackson said that in addition to his paid employment, her husband worked physically hard at and around the home. She said that Mr Jackson was generally regarded as a hard worker and that her son would complain when Mr Jackson assisted at that son’s property, because Mr Jackson would work harder than he.
13. Mrs Jackson said that as best she could recall she thought her husband was about six foot two inches tall and seemed to be of average weight.
14. Dr Volker confirmed the accuracy of a report she had prepared dated 30 June 2007. She said that both she and Dr English had accepted, in the light of the absence of dietary intake figures specific to the veteran, that it was appropriate to perform calculations using assigned animal fat intake figures for the veteran’s pre-service period of 126g per day. This figure arose out of a survey of household food budgets performed during the period 1936-1938. She also said that, in the absence of evidence specific to the late veteran, she and Dr English had agreed that an appropriate estimate of animal fat intake for the late veteran’s service period, was a figure reflective of general service rations, of 112g per day, calculated by Dr Volker and 113.6g per day calculated by Dr English. They agreed these figures were roughly equivalent. In a summary of her report dated 30 June 2007, Dr Volker made the following comment:
“…
A reasonable hypothesis exists between the late Stuart Jackson’s malignant neoplasm of the prostate and his war service. The circumstances of his relevant war service were ‘increasing animal fat consumption by at least 40% and to at least 50 g/day and maintaining these levels for at least 5 years within 25 years before the clinical onset of malignant neoplasm of the prostate’. [SOP Instrument No. 28 of 2005]. The late Stuart Jackson does satisfy factor 5(c) in the Statement of Principles on Malignant Neoplasm of the Prostate, by virtue of the fact that this veteran’s intake of animal fat increased from an estimated 126 g/day in the pre-service time period to 189 g/day in the post-service time period. This represents an increase from the pre-service time frame of 63 g/day and 50% increase in animal fat intake.
…”
15. In the same summary, Dr Volker expressed the view that during operational service veterans generally had little food choices. She said:
“ … Additionally, factors specific to war service affecting veterans food choices post-serve 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 so that the full fat flavour of food became a preference.
…”
16. Dr Volker said that in her opinion, veterans returning from operational service often overcompensated for a period of deprivation from flavour or comfort foods by consuming more fatty foods. She said that this was particularly so after World War II as herbs and spices were not as common then and that flavour was generally derived from the presence of fat. She said that in her opinion, a pattern of consuming foods with a greater level of animal fat post-service can result from deprivation from or sometimes from exposure to, fats.
17. Dr English said that she had based her estimation of Mr Jackson’s post-service animal fat intake, for the years 1971-1976 inclusive (a period during which the late veteran was 52 years and then 57 years) on dietary survey information of the late veteran’s likely animal fat intake provided by Mrs Jackson.
18. Dr Volker said that she had calculated that the late veteran had increased his animal fat intake during the relevant post-service period, by at least 50 percent to a daily intake of 189g per day. She pointed out that both she and Dr English concluded, having regard to survey material, that if those surveys could be relied upon, the late veteran satisfied factor 5(c) of SoP Instrument No 28 of 2005, that is increased his animal fat intake by 40 percent to at least 50g per day and maintained that intake for five years during a twenty-five year period before the clinical onset of prostate cancer, which was agreed by the parties to have approximated the date of diagnosis in 1996.
19. Dr English confirmed that the animal fat intake figures used by both she and Dr Volker for both the pre and during service periods, that is assigned animal fat intakes, were appropriate and the only information available.
20. Dr English said however that she had calculated that if the survey material provided by Mrs Jackson was credible, it would indicate that the late veteran increased his animal fat intake during the post-service period to 192.4g per day, and that such an increase would result in a 30kg weight gain per year over a five year period. Mrs Jackson said that she had not noticed any significant increase in her husband’s weight. In these circumstances Dr English said that the survey material provided by Mrs Jackson was unreliable and invalid. It had been in the light of this opinion that the Commission had rejected Mrs Jackson’s claim for widow’s pension.
consideration
21. It was common ground, and the Tribunal finds, that the late veteran’s cause of death was malignant neoplasm of the prostate.
22. The claimed condition of malignant neoplasm is the subject of a SoP. We will set out the relevant provisions of the SoP below. We note that where a SoP exists we must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“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 an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the 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 the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 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 the application of any presumption will be involved.”
Steps 1 and 2: What is the hypothesis and is there a relevant SoP?
23. Mrs Jackson’s counsel initially suggested that the late veteran’s increase in animal fat intake, following his operational service, had been caused by developing a liking to an increased intake of animal fat during service. However, this was later varied to a contention that through some means, perhaps involving a deprivation from animal fat during service, the veteran had entered post-service life with a significantly increased desire for foods high in animal fat. As mentioned, Dr Volker opined that veterans in the field generally faced few food choices and consumed the ration packs provided. She also suggested that factors specific to war service affecting veterans’ food choices post-service included periods of panic, periods of fear interspersed with boredom, a lack of privacy, basic camping facilities, dull or repetitive cooking and abstinence from, and longing for, comfort food.
24. The hypothesis arising out of this material is to the effect that the late veteran had an average diet for an adult male prior to enlistment of about 126g of animal fat a day, and that during his operational service in New Guinea, his diet necessarily changed and that his animal fat intake was likely to have declined to about 113.6g per day or, according to Dr Volker, 112g per day, a decrease of approximately 9.7 percent and that following discharge and continuing throughout a five year period falling within a twenty-five year period before the clinical onset of prostate cancer, Mr Jackson ate a diet high in fat, in part to compensate for, and as a reaction to, the diet he had during service and that this increased animal fat consumption was an increase of at least 40 percent to at least 50g per day and that this animal fat consumption pattern caused his eventual death through prostate cancer.
25. The SoP relevant to the applicant’s hypothesis is Instrument No 28 of 2005. The Tribunal finds that steps 1 and 2 are satisfied in this case.
Step 3: Does the hypothesis conform to the template in the SoP?
26. This step entails determining whether the relevant hypothesis conforms with one or more of the factors referred to in the relevant SoP. Factor 5(c) of the SoP was relied on:
“5(c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;”
27. For the purposes of the SoP “animal fat” is defined as:
“… 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;”
28. At this stage we must consider all the material before us, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated. A “reasonable hypothesis” involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364 at 372.
29. Each element of the hypothesis must be raised by the material: Young Nickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by the material.
30. There is no dispute that the clinical onset of malignant neoplasm of the prostate occurred in 1996. Therefore the relevant twenty-five year period was from 1971 to 1996. Mrs Jackson indicated that she did not know her husband before his service and consequently the Tribunal agrees with the suggestions made by both Dr English and Dr Volker, that it is appropriate to use the only material available, that is assigned animal fat intake for both pre and during, service periods. These figures have been agreed between Dr English and Dr Volker at 126g per day before service and about 113g per day during service. We are satisfied on the material before us that that material points to a pre-service fat consumption of 126g a day and that this is the base intake from which any increase in consumption is to be measured. Mrs Jackson gave evidence that after the war her husband enjoyed a diet high in animal fat and that she provided this diet for him.
31. Clearly there is, in our view, which we believe is shared by both expert witnesses, great difficulty in calculating and drawing conclusions from material which is, in relation to pre-service and service periods, not precise or specific to the late veteran. Difficulty also arises in relation to post-service periods, the evidence in respect of which is often provided by third parties attempting to recall diets perhaps thirty years later. Nevertheless, this was the only material available to the expert witnesses and to this Tribunal. In considering the issues and the evidence available to it, the Tribunal has also noted s 119(1)(h) of the VE Act which reads as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission [or in this case the Tribunal]:
…
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
…”
32. The Commission argued that if the late veteran had increased his animal fat intake to the level described in the SoP, then one would have expected his weight to have significantly increased. Mrs Jackson’s evidence was that she thought that her late husband had maintained a fairly steady weight. Dr Volker said that it was not unusual for family members to fail to notice increases in weight of their family members. Dr Volker also suggested that the veteran’s active lifestyle may have reduced what would otherwise have been an anticipated weight gain, given an increased level of animal fat consumption.
33. The difficulty in considering step 3 of Deledio was described by Allsop J in Collins v Administrative Appeals Tribunal [2007] FCAFC 116 at [49]:
“The dividing line between impermissible fact finding and the required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the … death with the circumstances of service and as to whether the relevant SoP upholds the hypothesis is not easy to discern.”
34. In this case the material includes evidence provided by the applicant that following Mr Jackson’s war service, he enjoyed a diet high in animal fat. There is also the opinion evidence provided by Dr Volker, which was based in part upon the background information she had elicited from Mrs Jackson, that the late veteran’s diet, post-service, and the result of that diet satisfied the relevant SoP. Dr English said that the dietary surveys provided by Mrs Jackson were incredible and invalid.
35. Having regard to all of the above-mentioned circumstances, including Dr English’s view that the post-service surveys completed by Mrs Jackson are unreliable, this Tribunal is satisfied that the whole of the material does point to Mr Jackson increasing his consumption of fat from pre-war to post-war by at least 40 percent to a level of at least 50g a day and that he maintained that level of fat consumption for five years within the twenty-five years leading up to the clinical onset of malignant neoplasm of the prostate in 1996.
36. It was argued by the Commission that there was no evidence connecting any increased animal fat intake during the post-service period with the late veteran’s experiences during his service. As mentioned, Dr Volker had expressed the view that veterans often increased their animal fat intake during a post-service period as a response to their limited service diet. It will always be difficult to establish with any certainty, the course of any changes to a particular individual’s diet. However, in this case the Tribunal considers that the material before it does not point to Mr Jackson changing his animal fat intake as a consequence of his war service. There is only a statement from Dr Volker that this happens with some veterans. Evidence of this element specifically relating to the late veteran is absent in this case. The application fails at step 3.
37. If the Tribunal is wrong in considering step 3 of Deledio not to have been satisfied, the Tribunal would have then considered step 4. This step involves making findings of fact from the material before us. Section 120(1) of the VE Act provides that the claim will succeed unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was war-caused. If the Tribunal is not so satisfied, the claim must succeed by virtue of s 120(1). In examining this question the Tribunal notes that there is no onus of proof (see s 120(6) of the VE Act and Bushell v Repatriation Commission (1992) 175 CLR 408).
38. The Commission contended that the material before the Tribunal was not capable of supporting the conclusion that Mr Jackson’s death was war-caused. The Commission based this contention on two grounds. First the Commission said that there was a lack of evidence supporting a connection with service and second, the material upon which both experts described the required increase in animal fat intake during the relevant post-service period, was unreliable and invalid.
39. The applicant’s ultimate hypothesis relied upon an assertion that Mr Jackson, during his period of operational service and because of that service, is likely to have consumed rations comparatively low in animal fat and experienced separation from normal life for periods of years, periods of fear interspersed with boredom, a lack of privacy, basic camping facilities, dull or repetitive cooking and abstinence from and longing for favourite comfort foods. It is in these circumstances that it was suggested that Mr Jackson was likely to have over compensated for that deprivation during the relevant post-service years, such that his consumption of animal fat increased so as to satisfy the relevant SoP.
40. Noting the reduction in animal fat intake during service, as determined by both experts, and noting that Mr Jackson’s operational service included periods of service in various areas of New Guinea, we would not have been satisfied, beyond reasonable doubt, that during and as a result of his war service, Mr Jackson changed his tastes so that the full fat flavour of food became a preference. The Tribunal would not be satisfied that any element of the hypothesis has been disproved beyond reasonable doubt.
41. In any consideration of step 4 of Deledio, the Tribunal would note the conflict of opinion between Drs English and Volker and perhaps if the standard of proof had been the balance of probabilities, may have reached a different view. However, on the information available and having regard to the relevant standard of proof, that is a standard favourable to the applicant, the Tribunal would not have been satisfied beyond reasonable doubt that Mr Jackson’s death was not war-caused.
conclusion
42. For the above reasons the application failed at step 3 of Deledio. Had the material pointed to a relevant nexus between the late veteran’s eligible service and his post-service diet, then the application would have succeeded. However, in the light of this Tribunal consideration of step 3, the application in unsuccessful.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member) and Professor P Reilly AO (Member)
Signed: .....................................................................................
AssociateDates of Hearing 14-15 February 2008 & 25 June 2008
Date of Decision 28 July 2008
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe (DVA)
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