JOAN MOUNTFORD and REPATRIATION COMMISSION

Case [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 706

Roberts 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

  1. 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

  2. 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…

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AGLC
JOAN MOUNTFORD and REPATRIATION COMMISSION [2013] AATA 13
Case
[2013] AATA 13
Decision Date

CaseChat Overview and Summary

The case involves Joan Mountford and the Repatriation Commission, with the primary dispute centering on whether the veteran's prostate cancer was related to his eligible war service. The matter was heard in a tribunal, which had to determine if the veteran's condition arose from or was attributable to his service. The Tribunal was tasked with considering all material evidence to ascertain if there was a reasonable hypothesis connecting the veteran’s prostate cancer with his service. This involved examining whether the veteran's consumption of animal fat and smoking habits during his service met the criteria outlined in the relevant Statement of Principles.

The legal issues before the Tribunal were whether the evidence supported a hypothesis that the veteran’s prostate cancer was connected to his war service and if this hypothesis was reasonable according to the Statement of Principles. Specifically, the Tribunal needed to determine if the veteran's increased consumption of animal fat and his smoking history met the criteria for causation as specified in the Statement of Principles. The Tribunal also had to consider if these factors were sufficient to establish a causal link to his service under the criteria set out in the Deledio steps.

The Tribunal found that while the veteran's increased consumption of animal fat and smoking habits did provide a hypothesis linking his prostate cancer to his service, this hypothesis did not fit the criteria outlined in the relevant Statement of Principles. The veteran's smoking did not meet the requirements as he ceased smoking before the clinical onset of his prostate cancer. Additionally, there was no evidence that he met the threshold for animal fat consumption as stipulated in the Statement of Principles. As a result, the Tribunal concluded that no reasonable hypothesis was established, and thus the prostate cancer was not attributable to his service. Consequently, the Tribunal affirmed the decision under review, rejecting the claim that the veteran's death was war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.EVIDENCEThe 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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;'.