JOAN MOUNTFORD and REPATRIATION COMMISSION
[2013] AATA 13
[2013] AATA 13
Division VETERANS' APPEALS DIVISION File Number
2011/5201
Re
JOAN MOUNTFORD
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 14 January 2013 Place Brisbane The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Royal Australian Navy – Death from metastatic cancer of prostate – Statement of Principles for malignant neoplasm of the prostate – Clinical onset – Cessation of cigarette smoking prior to clinical onset of malignant neoplasm of prostate – Increase in animal fat consumption not related to eligible war service – Reasonable hypothesis not raised – Death not war-caused – Decision under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 14, 119, 120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Chesterman and Repatriation Commission [2005] AATA 1316
Collins v Repatriation Commission [2009] FCAFC 90
Dunn and Repatriation Commission [2007] AATA 1996
Harmer and Repatriation Commission [2006] AATA 663
Jakab v Repatriation Commission [2007] FCA 898
Kaluza v Repatriation Commission [2010] FCA 1244
King v Repatriation Commission [2011] FCA 1436
King and Repatriation Commission [2012] AATA 725
Lees v Repatriation Commission (2002) 125 FCR 331
Mason (Lorna) and Repatriation Commission [2003] AATA 931
Mason (Uma) and Repatriation Commission [2002] AATA 1329
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Towle and Repatriation Commission [2000] AATA 706Roberts and Repatriation Commission [2002] AATA 351
SECONDARY MATERIALS
Statement of Principles: Instrument No. 5 of 2005 (as amended by Instrument No. 77 of 2012)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
Alexander Mountford (the veteran) served in the Royal Australian Navy (RAN) in World War II. He died on 20 February 2010 at the age of 86 years. Joan Mountford is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (the Act). On 22 April 2010, Mrs Mountford (the applicant) lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 4 May 2010 and by the Veterans’ Review Board (the Board) on 25 August 2011.
SERVICE
The veteran’s full-time RAN service was from 25 March 1942 until 28 February 1946 during which he served outside of Australia. He was posted to the HMAS Shropshire (the Shropshire) in February 1943 and remained with that vessel for the duration of his service. It is common ground that all of his service constitutes eligible war service in the form of operational service in accordance with ss 7 and 6A[1], respectively, of the Act.
[1] This was in respect of the terms of s 6A, Item 1 paragraphs (a) and (c) of Column 3 of the Act.
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act, which reads:
(1) Subject to this section … for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act, which reads:
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.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120(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
…
(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.
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which has been published by the Repatriation Medical Authority. Before applying the causation provisions of the Act, it is necessary to consider the “kind of death” applicable to the veteran, a matter which is to be determined to the decision-maker’s reasonable satisfaction.[2] The veteran’s death certificate nominates the cause of death to be “metastatic cancer of prostate to liver and bone”.[3] However, it is not in dispute and I am reasonably satisfied that the kind of death in this matter was malignant neoplasm of the prostate, confirmation of which was provided by his treating specialist in palliative care, Dr Louise Welch, in a report dated 16 February 2011.[4]
[2] In accordance with s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 and Collins vRepatriation Commission [2009] FCAFC 90 at [20] per Mansfield and Stone JJ.
[3] See Exhibit 1, T-documents, p. 49.
[4] See Exhibit 1, T-documents, p. 66.
The issue for the Tribunal is whether the veteran’s prostate cancer arose out of, or was attributable to, any eligible war service rendered by him.
EVIDENCE
The Applicant
The applicant’s evidence was that she and the veteran met in December 1947 and married in February 1949. The veteran smoked cigarettes when she met him, ceased in the early 1960s and then took up the habit again when he was working in Fiji in the 1970s. This continued until around the mid-1980s when he ceased smoking.
The applicant had no knowledge of the veteran’s eating practices before or during service but understood that he developed a taste for fatty foods in the RAN. After their marriage, they lived for some 12 months with the veteran’s parents where his mother assumed responsibility for preparing meals. The evening meal typically comprised “meat and three veg” followed by desserts of ice-cream and jelly. The applicant and the veteran then lived in suburban Melbourne and mostly ate their main meals at home. Again, she described the evening meal as comprising “meat and three veg” with dessert along with buttered bread or toast. She described the veteran as having a “sweet tooth” and referred to frequent desserts of pavlova or ice-cream with chocolate sauce. For breakfast, the applicant described a cooked meal, with the content being from a collection of cans which, typically, were unlabelled because of the actions of a neighbour who removed these. The breakfast meal often comprised baked beans on toast and also a glass of milk flavoured with Milo. She also described breakfast as a hurried affair because the veteran “was always rushing off to catch a train or bus”. They had a busy social life and this resulted in the veteran eating additional fatty foods on social occasions. The applicant said that the veteran’s diet had not changed greatly until the late 1960s when he developed a problem with his oesophagus. This prevented him from eating food such as steak for which he substituted “softer” foods. The veteran took up the playing of bowls during his posting to Fiji and continued with this pastime for many years in Australia. He often ate his evening meal at his local bowls club in his later years and was well known there as the “pie king” because of his liking for that form of food.
The applicant completed a statement, dated 1 March 2012, which included the following:[5]
[5] See Exhibit 2.
·when preparing food at home, she would use dripping and butter and, more recently, oil;
·the veteran's diet did not change significantly between when she first met him until his death;
·he ate fatty foods including stewed meats, sausages, processed meats, mince and hamburgers;
·he enjoyed snacks such as cheese and deep-fried items like spring rolls and dim sims and salty snack foods such as potato chips;
·he was not fond of sandwiches and preferred items that were soft, sweet and easily chewed;
·he preferred stewed to raw fruit;
·he enjoyed desserts and often ate them as his meal, especially ice-cream, wafer biscuits and chocolate sauce;
·during the day, he ate biscuits and cake products as snacks between meals with tea, Milo with milk and sugar, and wine; and
·he often ate poached eggs for breakfast.
The applicant completed dietary surveys on 2 April 2010[6] and 11 May 2011[7]. The former recorded the veteran's daily eating pattern from 1949 until 2009 and included a statement that she was unaware of the veteran’s diet before they were married. The latter recorded the veteran’s eating pattern from 1981 until 1988 and was reviewed and assessed by dietician, Julie Norton.
[6] See Exhibit 1, T-documents, pp. 32-39.
[7] See Exhibit 1, T-documents, pp. 71-84.
The applicant was uncertain when the veteran underwent prostate surgery or an associated orchidectomy and she was unable to provide any guidance on when his prostate cancer was diagnosed.
Andrew Mountford
Andrew Mountford is the son of the applicant and the veteran. He was born in 1951 and moved away from the family home in 1969. He confirmed that the veteran had been a heavy smoker but was unable to recall the veteran smoking in the 1980s or later. Mr Mountford lived in proximity to his parents from 1997 and recalled that the veteran’s diet comprised meat and vegetables and regular desserts, especially ice-cream. He described the veteran as being a lean man who weighed about 85 kilograms. Mr Mountford recalled conversations with the veteran about his service and understood the he was the captain of a four inch gun on the Shropshire. He recalled that the veteran had described his RAN diet as including sausages, eggs, powdered potato and an occasional beer.
Mr Mountford was unable to provide guidance on when the veteran underwent surgery for the prostate but recalled that, in 2003, he had accompanied him to the hospital when he was admitted in order to undergo a urethral widening procedure.
James Freeman PhD
Psychologist, Dr Freeman, interviewed the applicant in October 2012 and completed a report on 5 November 2012.[8] He also gave evidence. He described the veteran as having a diet during service which “consisted heavily of animal fats” which continued thereafter “up until his death”. The applicant advised him of the veteran’s very high fat diet after she knew him and his unwillingness to change his ways even when he had been advised to do so because of his prostate problems. Dr Freeman’s opinion was that the applicant was a “good historian who did not appear to present spurious information”. Based on his research, he considered that the consumption of large quantities of fat can have an “addictive-like” effect which can then lead to dependency. He considered that withdrawal from such a diet was often difficult and that associated stress can lead to further dietary relapses. Dr Freeman conceded that the research for his conclusions was based on animal studies and he said that very little research existed in relation to human studies of dietary addiction. Dr Freeman confirmed that he had not conducted any research into those matters.
[8] See Exhibit 4.
Trudy Williams
On 23 March 2011, Ms Williams, accredited practising dietician and accredited nutritionist, completed a report as requested by the Board for its deliberations.[9] Ms Williams assessed the veteran’s post-service animal fat intake on the basis of the applicant’s statements and the first dietary survey. Ms Williams noted that there was no evidence of the veteran’s pre-service animal fat consumption but accepted the level of 126 gms per day for that period. She was unable to refer to his service consumption levels but her analysis of the evidence of the applicant was that his post-service diet included 241.4 gms of animal fat per day. Ms Williams considered this to be “unusually high” and, therefore, examined the veteran’s comparative energy requirements against the fat intake calculated. Based on that analysis, Ms Williams concluded that the estimated fat consumption was “physiologically unreasonable and highly unlikely” and that the applicant may have inadvertently over-estimated the veteran’s consumption or misunderstood the framework of the dietary survey.
[9] See Exhibit 1, T-documents, p. 64.
Julie Norton
Ms Norton is a dietician and diabetes educator. She conducted two interview sessions with the applicant and assisted her in completing the dietary survey in May 2011. In her evidence, Ms Norton said that she was aware of a tendency for persons in the applicant’s position to exaggerate consumption estimates but she considered that this had not occurred with the applicant. Ms Norton was aware of general population surveys which were used to assess average dietary patterns but she said that, for an individual, these were less reliable than a survey tailored to that particular individual. For that reason, she considered that it had not been necessary to apply predictive tests such as the “Schofield equation” or other tests to validate her survey. She concluded that the veteran’s daily fat intake in the survey years from 1981 to 1988 was 189.1 gms. She compared this with the Repatriation Commission’s assessment that the average pre-war intake of men was 126 gms of animal fat per day.[10]
[10] See Exhibit 1, T-documents, p. 68.
Dr Louise Welch
Dr Welch is a specialist in palliative medicine who cared for the veteran from September 2009. She completed a report, dated 16 February 2011.[11] Dr Welch wrote that the veteran was initially diagnosed with metastatic prostate cancer in 2006 and that the metastases were widespread when she first saw him. She noted that he had undergone a bilateral orchidectomy and a prostatectomy as well as radiotherapy to painful bone sites. Widespread liver metastases were noted in February 2010.
[11] See Exhibit 1, T-documents, p. 66.
Service Records
The veteran’s service records[12] confirm that he was posted to the Shropshire from 3 February 1943 until 8 February 1946. Details of his movements include service in the United Kingdom during the Shropshire’s refit, on the Atlantic Ocean when the Shropshire voyaged from the United Kingdom to Australia, on the Indian Ocean, in New Guinea, the Philippines, Borneo and Moratai as well as in Australian waters. His entry medical examination describes him as being 6 feet 2 inches tall and weighing 143 pounds. He was aged 18 years at that time. His discharge medical records indicate a height of 6 feet 4 inches and a weight of 151 pounds.
[12] See Exhibit 1, T-documents, pp. 25-31.
Edwin Griffiths
Edwin Griffiths was unavailable to give evidence but his statement, dated 28 December 2011, was taken into evidence.[13] Mr Griffiths served on the Shropshire from February 1943 with the veteran. His statement included the following:
…
4. Whilst serving in HMAS Shropshire we had a varied diet. The food which we were supplied with was typically eggs, cereals, porridge, sausages, potatoes, baked beans, tinned and pressed bully beef, herrings in tomato sauce and condensed and powdered milk.
5. Herrings in tomato sauce were in plentiful supply during the time HMAS Shropshire was in the North Sea and Atlantic prior to service in the Pacific theatre.
6. I recall that, during the actions to retake the Philippine Islands from October to November 1944, the ship became very short of food which necessitated the ships company living off tinned bully beef and dehydrated potatoes for a considerable period of time. During this campaign conditions were too dangerous for the ship to be re-supplied as would have been the case under normal circumstances.
7. The tinned bully beef was very fatty and better quality fresh food was only available when the ship was in Australian waters, which was not very often.
[13] See Exhibit 3.
Stan Nicholls
Stan Nicholls also served on the Shropshire. He wrote a book about the history of the vessel[14] and Mr O’Neill tendered extracts from the book,[15] comprising the Contents page as well as Chapter Three, entitled “The First Tour of Duty”, which was concerned with the period leading up to and during the refit of the Shropshire up to 17 August 1943 when it left for Australia, arriving there on 28 October 1943. This included comment on the movement of RAN personnel by various means from Australia to the United Kingdom to join the Shropshire in 1943. The following reference to food appears in the extract:[16]
While the ship was afloat in No 9 dock, meals had to be cooked ashore in a shed. The adjacent heads and bathrooms had been bombed so the ship’s company had to walk several hundred yards. All in all, the weather, the messing, the toiletries and the air-raids were not as you would imagine conducive to a happy crew, but the opposite was the case. The health and spirits of the ship’s company were good.
[14] HMAS Shropshire.
[15] See Exhibit 6.
[16] See Exhibit 6, p. 8 of 12.
The extract also referred to the Shropshire being fitted with a cafeteria system as opposed to the normal RAN messing system. It continued:[17]
It was a fine idea and worked very efficiently throughout the next years of Shropshire’s service in the RAN. …
[The] Chief Petty Officer Cook … was heavily involved in the introduction and training of staff for this first cafeteria system ever built into an Australian warship. Very rarely did the crew suffer with cold ‘hot’ food as was the case in the old messing system. The cafeteria’s steam presses from which food was served was the answer to this problem. Of course, prior to the completion of the cafeteria and galley equipment, the problems of feeding the men and preparing the food ashore, keeping the fires burning was, to say the least, a burden the cooks had to bear.
[17] See Exhibit 6, p. 2 of 12.
The Contents page to Mr Nicholls’ book described the First Tour of Duty of the Shropshire as comprising “The Draft”, “Refit Trials” and “Working Up” at “Chatham, Scapa Flow and Greenock”. It described the Shropshire’s Second Tour of Duty as comprising the voyage to Australia from Greenwich to Sydney via Freetown, Cape Town, Durban and Freemantle.
CONTENTIONS
Mr Bruce Williams
For the respondent, Mr Williams conceded that the clinical onset of the veteran’s prostate cancer was in the period from 2003 to 2006. However, he submitted that the evidence in relation to the veteran’s animal fat consumption or to his cigarette smoking did not satisfy the relevant Statement of Principles for malignant neoplasm of the prostate (Instrument No 28 of 2005 as amended by Instrument No 77 of 2012) and that, accordingly, the veteran’s death was not war-caused. He conceded that the veteran may have consumed a typical diet of 126 gms per day of animal fat prior to his enlistment. However, he submitted that the evidence of the veteran’s service diet was unclear. Mr Williams noted that the veteran served in the United Kingdom during the refit of the Shropshire and its sea trials in the North Sea prior to August 1943 and then in the Atlantic when the vessel sailed for Australia via South Africa. He submitted that most of his service was in tropical waters rather than in the cold weather associated with the North Atlantic Ocean.
Mr Williams also submitted that the evidence of the veteran’s post-service diet was unreliable. This included Ms Warner’s analysis of the veteran’s diet because, he submitted, her results were not subjected to a verification comparison. He referred to evidence given in an earlier Tribunal case of Dunn and Repatriation Commission[18] (Dunn‘s case) by nutritionist, Dr Ruth English, and submitted that this was not consistent with the evidence provided to support the applicant.
[18] [2007] AATA 1996.
Mr Peter O’Neill
Mr O’Neill, for the applicant, submitted that the veteran increased his consumption of animal fat during and because of his RAN service and that he maintained that elevated level of consumption in post-service years. In particular, he referred to the dietary regimen of the crew of the Shropshire who enjoyed a high fat diet during those years. He noted that the veteran travelled from Australia to and overland across the United States of America before his passage across the Atlantic to England on board HMS Wolfe (the Wolfe). He submitted that, during that passage and during the period when the vessel underwent a refit in England until August 1943, the veteran’s dietary regimen was that of the Royal Navy which was high in fat content because of the nature of Royal Navy service in cold theatres such as the North Atlantic Ocean. He submitted that this diet continued during service on the Shropshire on which, he noted, the crew’s eating arrangements were enhanced by the installation of a cafeteria system.
In the absence of evidence of the veteran’s animal fat intake prior to the veteran’s service, Mr O’Neill submitted that the level of 126 gms per day be adopted. He submitted that confirmation of the Shropshire’s dietary regimen was provided in the statement of Mr Griffiths as well as in the evidence given in the previous Tribunal hearings of Chesterman and Repatriation Commission[19] (Chesterman’s case) and Roberts and Repatriation Commission[20] (Roberts’ case) where dietary matters were considered. In addition to Chesterman’s case and Roberts’ case, Mr O’Neill referred to other Tribunal cases in which prostate cancer was determined to be service-related[21] and a Federal Court decision in which a prostate cancer matter was remitted to the Tribunal[22].
[19] [2005] AATA 1316.
[20] [2002] AATA 351.
[21] Una Mason and Repatriation Commission [2002] AATA1329, Lorna Mason and Repatriation Commission [2003] AATA 931, Harmer and Repatriation Commission [2006] AATA 663.
[22] King v Repatriation Commission [2011] FCA 1436 which was remitted with the Tribunal giving its subsequent decision in King and Repatriation Commission [2012] AATA 725.
Mr O’Neill submitted that no regard should be had to the evidence of Dr English which was given in Dunn’s case because it was not based on the specific circumstance of the veteran’s service. Mr O’Neill submitted that the unchallenged evidence of Ms Warner ought to be accepted in relation to a five year period within the 25 years before the clinical onset of the veteran’s prostate cancer between 2003 and 2006. He submitted that the RAN diet and the veteran’s post-war diet met the requirements of the Statement of Principles. Accordingly, he submitted that I could not be satisfied beyond reasonable doubt that the veteran’s death was not war-caused under s 8 of the Act.
Mr O’Neill also noted that the veteran, during his RAN service, developed a habit of smoking cigarettes which continued post-service. However, he conceded that this did not meet the requirements of the relevant Statement of Principles because the veteran had ceased smoking by the time of the clinical onset of the prostate cancer.
PROCEDURE FOR CONSIDERATION
The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[23]
(i) 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.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) 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.
(iv) 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, ... 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.
[23] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.
Step 1:- Hypothesis
The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Mr O’Neill submitted that the veteran increased his consumption of animal fat and commenced smoking during and because of his RAN service. I accept that this contention raises two hypotheses of connection of the veteran’s death to service.
Step 2:- Statement of Principles
In the relevant Statement of Principles,[24] factors 5(c) and (ca) and the relevant associated definitions in cl 8 of the Statement of Principles read:
[24] Instrument No 28 of 2005 as amended by Instrument No 77 of 2012.
(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.
‘animal fat’ means fat contained in or derived from:
(a) meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds.
(ca) for current smokers only, smoking at least 40 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the prostate; or;
‘pack-years of cigarettes, or the equivalent thereof in other tobacco products’ means a calculation of consumption where one pack-year of cigarettes equals 20 tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7.3 kilograms of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars, smoked alone or in any combination;'.
Clause 4 of the relevant Statement of Principles requires that the factor must be “related to the relevant service rendered by the veteran”.
Step 3:- Reasonableness of the Hypothesis
The third step requires consideration of whether either of the hypotheses raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[25] This requirement will be met if an hypothesis fits or is consistent with the template provided by factor 5(c) or factor 5(ca) and the associated definition in the Statement of Principles.
[25] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415 per Mason CJ and Deane and McHugh JJ.
Clinical Onset
Each of the factors requires consideration of the clinical onset of the veteran’s prostate cancer. In Kaluza v Repatriation Commission (Kaluza’s case),[26] Jacobson J, at [92] and [93], summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission[27] in the following way:
The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[26] [2010] FCA 1244.
[27] (2002) 125 FCR 331.
In this matter, the medical evidence points to a clinical onset in 2006 but Mr Mountford’s evidence was that his father first underwent a urethral procedure in 2003. It was agreed by Mr O’Neill and Mr Williams that clinical onset in the veteran’s case was in the period from 2003 to 2006 and, for the purposes of assessing the reasonableness of the hypotheses raised by Mr O’Neill, I am satisfied that there is material which points to that time-frame.
Smoking Hypothesis
The only factor in the Statement of Principles for prostate cancer to be causally related to smoking is factor 5(ca). In that regard, factor 5(cb) is related only to the worsening of the condition. As I read factor 5(ca), it requires that a veteran be smoking at the time of the clinical onset of prostate cancer. In this case, the material points to the veteran smoking until the mid-1980s and not until the period from 2003 to 2006. That hypothesis is not consistent with factor 5(ca). Accordingly, the hypothesis of a relationship between smoking and the veteran’s prostate cancer is not reasonable in this matter and this was conceded by Mr O’Neill.
Animal Fat Consumption Hypothesis
The first stage in assessing the reasonableness of the animal fat consumption hypothesis is to determine whether factor 5(c) in the relevant Statement of Principles is raised on the evidence; the second stage is to determine whether the material raises a relationship between that factor and the veteran’s service.[28]
[28] As provided for by clause 4 of the Statement of Principle. See also King v Repatriation Commission [2011] FCA 1436 at [46] and [52] per Cowdroy J.
Factor 5(c)
Although he conceded that there was no evidence of the veteran’s pre-service diet, Mr O’Neill submitted that a level of 126 gms of animal fat consumption be adopted for that period. This was conceded by Mr Williams and is the level identified by Dr English in Dunn’s case. It was also accepted as appropriate by Ms Norton in her evidence and by Ms Williams in her report. I have adopted that as the veteran’s pre-service base level of daily animal fat consumption.
Ms Norton relied on the second dietary survey completed by the applicant and her discussions with the applicant to assess the veteran’s animal fat consumption at 189.1 gms per day in relation to the period from 1981 to 1988. That points to an increase of animal fat consumption from 126 gms per day pre-service to 189.1 gms per day for a period of at least 5 years within 25 years of the clinical onset of the veteran’s prostate cancer. It also points to an increase of more than 40% and to at least 50gm/day in the veteran’s animal fat consumption. It follows that factor 5(c) is raised on the evidence.
Relationship to veteran’s service
It is not a requirement, in order for the hypothesis to be reasonable, that the veteran’s animal fat consumption have increased by more than 40% and to at least 50gm/day during his service. The requirement is that there be something about that service which points to a contribution to the veteran’s increase in animal fat consumption after his service and, in particular, in the years from 1981 to 1988. As noted above, it was in that period when the threshold levels in factor 5(c) are pointed to in the material.
As for the veteran’s diet in the RAN, Mr Mountford was advised by his father that the RAN diet included sausages, eggs, powdered potato and an occasional beer. Mr Griffith described a varied diet on the Shropshire including eggs, cereals, dehydrated potatoes, porridge, sausages, potatoes, baked beans, and condensed and powdered milk. While Mr Griffiths also referred to a plentiful supply of herrings in tomato sauce, sea food is excluded from the definition of “animal fat” in the relevant Statement of Principles. Mr Griffith also referred to bully beef, especially from October to November 1944 when the Shropshire was very short of food. The extract from Mr Nicholls’ book referred to modes of cooking meals for the Shropshire crew, including the use of a cafeteria system to improve the heating arrangements for food, but provided no information on the nature of the crew’s diet.
As I understand it, an important component of the hypothesis advanced by Mr O’Neill was that the veteran enjoyed the high fat diet of Royal Navy servicemen while he was on the Wolfe, while the Shropshire was being refitted and while the Shropshire was in Atlantic waters. No specific evidence of the Royal Navy diet was before the Tribunal but, as authority for the nature of that diet, Mr O’Neill referred to Chesterman’s case. There, the Tribunal noted that the Royal Navy diet included “relatively large quantities of lard and dripping” which was added to the food “in large amounts, due to the unusual circumstances relating to operating in Arctic conditions”.[29] There is no material before the Tribunal which points to the veteran encountering Arctic conditions on the Wolfe, during the refit of the Shropshire or whilst serving on the Shropshire. In that regard, the Contents page of Mr Nicholl’s book identifies the Shropshire, after its refit, as being in the Atlantic Ocean only during its passage south from England around the Cape of Good Hope en route to Australia. This was prior to the northern hemisphere winter of 1943. Thereafter, that material and the evidence of Mr Griffith points to its service in tropical waters.
[29] At [23] and [33]. I note that the Roberts’ case involved a veteran with RAAF service.
The other prostate cancer cases[30] relied on by Mr O’Neill involved veterans who served in the Royal Australian Air Force or the Australian Army which do not necessarily reflect the same dietary regimen as the RAN.[31] Mr Griffith described the diet available on the Shropshire but considered it noteworthy to refer to an increased level of bully beef for only two months in 1944. Unfortunately, Mr Griffiths was unavailable to expand on his statement in that regard. Also, as noted above, the plentiful supply of herrings which he described does not point to animal fat consumption for the purposes of the Statement of Principles.
[30] See notes 21 and 22 (above).
[31] See Re Towle and Repatriation Commission [2000] AATA 706 at [60] and cited in a case relied upon by Mr O’Neill: King and Repatriation Commission [2012] AATA 725 at [46].
The evidence of the veteran’s service diet does not point to the high levels of fat consumption submitted by Mr O’Neill. It points to the variety of foods described by the veteran’s son and Mr Griffith, including a two month period of bully beef consumption in 1944, some two years before the end of the veteran’s service. That does not point to the premise on which Dr Freeman’s evidence was based. This was that the veteran’s diet during service “constituted heavily of animal fats”, on which he based his conclusion that “the consumption of large quantities of fat can have an addictive-like effect” which can lead to dependency from which withdrawal “is often difficult to sustain”. Apart from the absence of any research by Dr Freeman in the area and his reliance on animal studies for his conclusions, there is no material which points to an increased consumption of animal fats during the veteran’s service which would provide the basis for the addictive effect described by Dr Freeman.
The veteran’s service records point to a gain in weight from 1942 to 1946 of eight pounds during his service. However, that outcome may well be commensurate with a level of physical development in the veteran as he aged from 18 to 22 years and increased in height by 2 inches. No estimates were made by Ms Norton, Ms Williams or otherwise of the number of grams of animal fat which were consumed per day by the veteran during his RAN service. Accordingly, there is no material which enables a comparison to be made between the veteran’s pre-service animal fat consumption and that of his service. Further, there is no evidence of the nature of his diet from the time of his discharge in February 1946 until he and the applicant married in February 1949. The first dietary survey completed by the applicant on 24 April 2010 detailed his dietary patterns from 1949 until 2009 and the applicant stated that she was unaware of his diet prior to their marriage. Further, the evidence of Ms Williams, which was that the applicant’s estimate was “physiologically unreasonable and highly unlikely” and which was not challenged by Mr O’Neill, points to that as being an unreliable record.
In relation to the absence of material relating to the years during and immediately after the veteran’s service, the Act provides that account is to be taken of difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance including any reason attributable to the effects of the passage of time.[32] However, the beneficial nature of that provision does not enable a decision-maker to reach a finding not supported by the evidence.[33] To raise a reasonable hypothesis, the material relied on must point to the hypothesis. It is not sufficient for the material merely to raise a possibility or merely to leave the hypothesis open.[34] The material before me falls into that category in that it raises no more than a possibility of a relationship between the veteran’s service and an increased level of his daily animal fat consumption by 1981, some 35 years after the veteran’s service, when the evidence of Ms Norton points to the threshold consumption levels required in factor 5(c) of the Statement of Principles.
[32] See s 119(1)(h) of the Act.
[33] See Jakab v Repatriation Commission [2007] FCA 898 at [36] per Greenwood J.
[34] See Repatriation Commission v Bey (1997) 149 ALR 721 at 730.
The material before me merely leaves open the hypothesis connecting increased animal fat consumption as a result of the veteran’s service and the veteran’s malignant neoplasm of the prostate. It does not fit the requirement of a relationship to service in the template of the Statement of Principles for that condition. For that reason, the hypothesis advanced on behalf of the applicant is not reasonable and it follows that the third of the Deledio steps is not satisfied.
Step 4:- Is Death War-caused?
As no reasonable hypothesis of a relevant relationship is raised between prostate cancer and the veteran’s eligible service, it follows that his death from that condition is not war-caused and it is not necessary for consideration to be given to the fourth of the Deledio steps.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 14 January 2013
Date of hearing 12 December 2012 Counsel for the Applicant Mr Peter O'Neill Solicitors for the Applicant File Stibbe Lawyers Advocate for the Respondent Mr Bruce Williams
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