JQVC and Repatriation Commission (Veterans' entitlements)
[2018] AATA 478
•13 March 2018
JQVC and Repatriation Commission (Veterans' entitlements) [2018] AATA 478 (13 March 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s):2016/5023
Re:JQVC
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:13 March 2018
Place:Canberra
The Tribunal affirms the decision under review.
........................................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – pension – malignant neoplasm of the prostate – erectile dysfunction – increase in animal fat consumption – hazardous service – hypothesis not fanciful, incredible or too remote – SoP 53 of 2014 – clause 6(c) – essential elements of hypothesis not related to hazardous service
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Blain v Repatriation Commission [2017] FCA 114
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunn v Repatriation Commission [2006] FCA 1703
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Gilkinson v Repatriation Commission [2011] FCAFC 133; 197 FCR 102
King v Repatriation Commission [2011] FCA 1436
Knight v Repatriation Commission [2010] FCA 1134
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Dunn [2006] FCA 1703
Repatriation Commission v Hill [2002] FCAFC 192; 69 ALD 581
Repatriation Commission v Stares (1996) 66 FCR 594
SECONDARY MATERIALS
Statement of Principles 53 of 2014: Malignant Neoplasm of the Prostate
REASONS FOR DECISION
Deputy President J Sosso
13 March 2018
INTRODUCTION
JQVC (the veteran) served in the Royal Australian Navy (RAN) between 17 January 1977 and 19 January 2014. Since 20 January 2014 the veteran has served as an active reservist in the RAN Reserves – Exhibit 1 T3 p. 5.
On 21 May 2015 the veteran made a claim for pension in respect of malignant neoplasm of the prostate and erectile dysfunction – Exhibit 1 T3 pp. 3 -14.
It is not contested that the veteran’s service from 17 January 1977 until 30 June 2004 is recognised as eligible defence service under Part IV of the Veterans’ Entitlements Act 1986 (the Act).
It is also not contested that from 30 March to 20 December 1988 the veteran served, on exchange, aboard HMS Herald in the Persian (Arabian) Gulf on sea-mine clearance operations (Applicant’s Submission (AS) p. 1), which constitutes hazardous service under the Act.
On 17 June 2015 a delegate of the Repatriation Commission (the Respondent) determined that neither of the veteran’s conditions were related to relevant service – Exhibit 1 T6 pp. 18 – 22.
The veteran sought a review of that decision, but on 27 May 2016 the Veterans’ Review Board (the Board) affirmed it – Exhibit 1 T2 pp. 2a – 2n.
On 22 September 2016, the veteran applied to the Tribunal for a review of that decision – Exhibit 1 T1 1c -1d.
The matter was heard in Canberra on 11 December 2017. Due to a bereavement in the family, the veteran did not appear, but was represented by Mr R A Lipscombe PSM of the Vietnam Veterans' Federation. The Respondent was represented by Mr Luke Woolley of Sparke Helmore Lawyers.
The hearing was relatively brief, and it was agreed that the issues in contention could be disposed of without the need for the subsequent attendance of the veteran.
The Tribunal was greatly assisted by Mr Woolley who, the course of the hearing, and subsequently in the Respondent’s Outline of Submissions (ROS), narrowed and refined the issues in contention.
The Tribunal granted both parties the opportunity to supplement their oral submissions with written submissions. Due to the intervention of the Christmas break, there were some time delays in receiving this material. Nonetheless by 29 January 2018 both parties provided the Tribunal with written submissions.
THE FACTS
The veteran grew up on the New South Wales central coast, and prior to enlisting lived at home with his parents. The veteran provided the following account of his pre-enlistment dietary habits – Exhibit 1 T13 p. 186:
“2. As a child and teenager, my diet was rich in fresh fruit, salads and vegetables. Both sets of grandparents had vegetable gardens (a hangover from World War II), so provided my parents with a regular (weekly – fortnightly) supply of corn, carrots, tomatoes, broccoli, lettuce, radishes, citrus fruits and potatoes. These fruits and vegetables supplemented my mother’s purchases from the greengrocer (which were fresh and not processed or refrigerated). My mother also ensured that the salad and vegetable content of our meals was plentiful and varied.
3. The meat content of my diet prior to 1977 was also varied – red meats, white meats, poultry and seafood were routinely on our menu. One grandparent owned chickens, so we would regularly receive a chicken for cooking…My father was a very keen amateur fisherman; he owned an 8 metre cruiser which we used weekly for fishing…or prawning and crabbing…Therefore my meals normally comprised a mix of all meat types, and only occasionally contained the red meats commonly associated with a high-fat diet.
4. My breakfast menu normally comprised cereal, toast and fruit – and occasionally yoghurt…My family would rarely have fried bacon and eggs (perhaps once a fortnight) as this was considered a treat. For lunch I would routinely have sandwiches and fruit (during the school week), and either sandwiches or a salad on weekends. Sandwich toppings varied: peanut butter, vegemite, jams, meat/pickles and salads. Seafood (fish, prawns and crabs) was also consumed regularly (approximately fortnightly) for lunch. My family would have a traditional roast meal (lamb, beef or corned silverside and vegetables) for lunch on Sundays.
5. Dinners normally comprised a serving of red or white meat with 3-4 vegetables, or regular cold meat and salad dishes in summer. Seafood was also consumed for dinner regularly (approximately weekly). Italian, Thai or Chinese dishes (eg spaghetti bolognaise or stir fry) were occasionally, but not regularly, on the menu because at that time the standard Australian menu was derived from the British diet (albeit with some variation as a consequence of our climate and greater availability of fresh produce).”
The veteran joined the RAN when he was still only 17 years of age as a Cadet Midshipman. His initial officer training was at RAN College, HMAS Creswell. The veteran provided the following information about this time in a statement dated 4 May 2015 – Exhibit 1 T5 p. 16:
“The training I undertook at HMAS CRESWELL, and subsequently as a junior officer, was physically and mentally demanding. Furthermore, HMAS CRESWELL is located on the NSW South Coast, which becomes cold in winter. The combination of intensive exercise and climatic conditions generated a ravenous appetite, and the need for calories to provide the required energy increased substantially from my life prior to joining the RAN (I grew up in a household where I generally had a balanced nutritious diet and I did not regularly consume food that had a high animal fat content).
Upon joining the RAN I became accustomed to eating three large meals per day (which included meat, bacon and eggs) to generate sufficient energy to meet my training and study commitments. Evening meals and lunch were frequently ‘recycled’ for breakfast, so meat was a large part of the menu. The standard RAN menu in the 1970’s was high in animal fats; this menu did not change significantly until the 1990’s, when menus with healthier choices were introduced. Therefore there was no alternative to eating the high-fat meals provided if I wanted to meet my physical training, sports and study commitments.
After completing initial officer training in 1980 I was posted to sea, where the ships’ menus were similarly high in animal fats. By this time I had become accustomed to the ‘RAN diet’ and maintained a high caloric intake, as I continued participating in various RAN sports and life at sea was also physically demanding at times. I specialised in hydrographic surveying in 1983; this branch of the RAN required officers and sailors to undertake hard physical work in establishing or recovering infrastructure ashore, and when deployed in small survey boats remotely from the ship for days at a time. This contributed to higher than average food consumption – the same types of food I had become accustomed to eating throughout my career in the RAN thus far.
I subsequently served on exchange with the Royal Navy (1986-1989), and I spent 70% of that period at sea – including active service undertaking mine hunting operations in the Arabian Gulf during and after the Iran-Iraq War, and hydrographic surveys in the North Sea. The Royal Navy’s menu at that time had a higher animal fat content than the RAN’s, but I continued to consume large meals to meet the physical and mental demands of seagoing operational service in stressful environments, and where the extremes of weather and climate also generated an increased appetite.
I completed my seagoing service in 2000, by which time the RAN’s menu had improved: the meals were more balanced, with options other than predominantly red meat. However, I had become conditioned to eating the types of food I had consumed since joining the RAN more than 20 years previously, and I preferred them to the ‘healthy choices’ that were coming into vogue. So my diet still included large quantities of meat, bacon and eggs.”
The Tribunal was provided with a “General Mess Menu” for HMAS Swan for the period 15 – 21 July 1974 – Exhibit 1 T2 2k – 2l.
Set out below is an extract from the menu, giving details of the food on offer for the Monday – Wednesday time period:
DAY BREAKFAST LUNCH TEA DINNER
Monday Cereals Steak & Kidney Pie Bread Grilled T-Bone Steak Cold Milk Or Butter Chipped Potatoes
Baked Beans Irish Stew Sundries Fresh Mushrooms
Fried Eggs Creamed Potato Side Salad
Grilled Bacon Buttered Broad Beans French Dressing
Tea or Coffee Sweet Baby Carrots
Fresh Fruit Banana Fritters & Ice Cream Tomato Soup
Tuesday Cereals Meat Balls Mexicana Bread Roast Chicken
Cold Milk Or Butter Or
Lambs Fry & Salmon Mornay Sundries Roast Beef
Bacon Creamed Potato Baked Potatoes
Scrambled Eggs Buttered Spinach Green Peas
Saute Veg Spiced Pumpkin Cauliflower Cheese
Tea/Coffee Brandied Apricots & Custard Brown Gravy
Fresh Fruit Chicken Stock Soup
Wednesday Cereals Curried Prawns Bread Grilled Pork or
Cold Milk Boiled rice Butter Lamb Chops or
Mushroom Or Sundries Fried Ham Fillets
Fritters Beef Sausages Fried Potatoes
Sweetcorn Lyonnaise Potatoes Buttered Sweetcorn
Sauté Kidneys Buttered Broccoli French Beans
Boiled Or Grilled Tomato Pea & Ham Soup
Scrambled Eggs Green Peas
Tea/Coffee Chocolate Sponge &
Fresh Fruit Sweet Sauce
The veteran gave the following account of the type of food served on Royal Navy ships in the period 1986 -1989 when he was on exchange – Exhibit 1 T13 p. 188:
“13. I subsequently served on exchange with the UK Royal Navy (1986 – 1989), and I spent 70% of that period at sea – including active (hazardous) service undertaking mine clearance operations in the Arabian Gulf during and after the Iran-Iraq War, and hydrographic surveys in the North Sea. I contend that the Royal Navy’s menu at that time had a higher animal fat content than the RAN’s, but I continued to consume large meals to meet the physical and mental demands of seagoing operational service in stressful environments (with long periods spent in ‘Defence Watches’ – watch on, watch off – and therefore few opportunities for recreation or exercise), and where the extremes of weather and climate also generated an increased appetite.
14. Food was regularly cooked in fat, and red meat was frequently recycled. The potato was the Royal Navy’s ‘vegetable of choice’: some menus comprised a serving of meat and 2-3 servings of potatoes (chipped, mashed and baked!). Offal was used quite frequently in meals and black pudding was a regular and popular dish – served with any of the three main meals. I can only recall a few instances of salad on the menu. Like the RAN, battered fish and chips were served on Friday, and chicken also featured very rarely.”
The veteran completed a “Dietary Survey – (Veteran) Malignant Neoplasm of the Prostate” which is a pro forma document prepared by the Department of Veterans’ Affairs – Exhibit 1 T14 pp. 189 – 202. This document, which is dated 6 January 2016, contains very detailed information from the veteran’s perspective about his dietary habits both before and after enlisting. It is consistent with the information outlined above.
This information was analysed by Jane O’Shea, a nutritionist. In her report of 25 January 2016 she reached the following conclusions concerning the veteran’s food intake after enlisting – Exhibit 1 T14 p. 204:
“The Service Daily Intake eating pattern also shows a regular eating pattern of three meals and daily snacks but also included one extra late evening snack. The Service Food Frequency record shows a substantial increase in the amounts of animal fat products being regularly consumed…
A comparison of the Daily Intake records show a substantial increase in energy intake. This increase in energy was mainly due to an increased intake of animal products (meats, small goods, dairy). Carbohydrate intake increased by 16.6%, protein increased by 121.7%, total fat increased by 119.6% and saturated fat by 92.9%.”
Based on the information provided by the veteran, Ms O’Shea reached the following conclusions about the average daily fat consumption – Exhibit 1 T14 pp. 207, 210:
Prior to enlisting After enlisting until onset of cancer
Total fat (g) 75.59 166.05
Saturated fat (g) 38.17 73.64
Polyunsaturated fat (g) +5.68 +14.10
Monounsaturated fat (g) +23.20 +63.80
MATTERS NOT IN CONTENTION
The following key issues are not in dispute – SOR para 3.1:
(a)The veteran has rendered both eligible and hazardous service;
(b)The veteran suffers from malignant neoplasm of the prostate;
(c)The veteran suffers from erectile dysfunction (arising secondary to medical treatment obtained in respect of malignant neoplasm of the prostate);
(d)The onset of the malignant neoplasm of the prostate occurred in 2007 and was confirmed by a biopsy performed in December 2007 – Exhibit 1 T9 p. 61.
LEGAL OVERVIEW
Part IV of the Act provides for pensions for members of the Defence Force or Peacekeeping Force and their dependants.
Part IV applies to persons who served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and until 7 April 1994 – s 69(1).
In addition, Part IV also applies to a person who rendered hazardous service as a member of the Defence Force – s 69A.
The term “hazardous service” is defined by s 120(7) as:
“service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.”
It is not contested that the veteran’s service in 1988 whilst stationed on HMS Herald constituted hazardous service.
It is also not contested that a claim under Part IV that relates to hazardous service rendered by a member of the Forces is assessed by reference to a reasonable hypothesis Statement of Principles (SoP) – s 120A(1)(b)(ii).
Pursuant to s 70(1) where a member of the Forces is incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the member.
Subsection 120(2) provides, inter alia, that where a claim under Part IV is made in respect of incapacity from a veteran’s hazardous service, the Respondent shall determine that the injury or disease was defence-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
It should be noted that s 120 does not create a presumption that an injury or disease was defence-caused, nor does it impose an onus on a veteran to prove that it is – Repatriation Commission v Deledio (Deledio) (1998) 83 FCR 82 at 98.
Subsection 120(3) then outlines one circumstance where the Respondent is required to find that there is “no sufficient ground” for the purposes of s 120(1) and (2). The Respondent is required to find that there is no sufficient ground that an injury or disease was defence-caused if:
“after consideration of all of the material before it, [the Respondent] 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.”
This subsection was explained in Bushell v Repatriation Commission (1992) 175 CLR 408 by Mason CJ, Deane and McHugh JJ (at 413-414) as follows:
“Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact…
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some material fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
In East v Repatriation Commission (1987) 16 FCR 517, the Full Federal Court observed that the relevant hypothesis must “find some support” in the evidence adduced and that the evidence must “point to, and not merely leave open” the hypothesis relied upon – at 532.
The difficulties inherent in ascertaining from the evidence adduced, particularly that of a medical-scientific nature, the existence of a causal connection between service and the claimed injury or disease, was addressed by the insertion of s 120A. The purpose of this section was to provide a sound and consistent basis for determining the reasonableness of a hypothesis from a medical/scientific perspective.
Subsection 120A(3) relevantly provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting….a disease contracted by a person…with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) Statement of Principles determined under subsection 196B(2) or (11);…”
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine SoPs – s 196B(1).
If the Authority is of the view that on the sound medical-scientific evidence available that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the factors that must exist; and
·which of those factors must be related to the service rendered by the veteran,
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service – s 196B(2).
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14). The relevant circumstances for this matter are:
“(b) it arose out of, or was attributable to, that service; or...
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(f) in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for rendering that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service…”
Whilst there was some debate during the hearing, it was subsequently agreed by both parties (AS p. 1), that in this matter the relevant SoP is Instrument 53 of 2014 – Malignant Neoplasm of the Prostate.
The relevant factor in this SoP is 6(c):
“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.”
The term “animal fat” is defined in clause 8 as:
“fat contained in or derived from:
(a) dairy products;
(b) eggs; or
(c) meat, other flesh or offal from animals (including birds but excluding seafood).”
It is helpful in this context to set out the following observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
“it is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
Therefore when s 196B(2) says a factor ‘must…exist’ and ‘must be related to service’ it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis. Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.”
THE DELEDIO PRINCIPLES
Central to the disposition of this matter is the identification and assessment of the veteran’s hypothesis. The fact that the Act utilises the language of an “hypothesis” alerts the decision maker to the difficulties perceived by the Parliament in proving facts in a military setting, possibly many years after the event. For, as Black CJ, Ryan and Einfield JJ observed in Repatriation Commission v Stares (1996) 66 FCR 594 at 601, an hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.
Here the ultimate fact is the veteran’s contraction of prostate cancer, and the conjectural explanation for this is the veteran’s consumption of animal fat during his service.
Over the past two decades the Tribunal has approached the proper application of s 120 (and related provisions) from the prism of the methodology outlined by the Full Federal Court in Deledio.
It is very clear from numerous recent Federal Court decisions, that strict reliance on the “Deledio principles” as if they were a legislative mandate would be a mistake. The “methodology” outlined in any judicial decision for applying statutory provisions is only a guide. However, the Deledio “methodology” is a useful tool in guiding decision-makers through the byzantine maze of veterans’ affairs law and assists in preventing the decision maker falling into error – see Logan J, Blain v Repatriation Commission [2017] FCA 114 at [9].
The Full Court in Deledio identified the following steps (97 – 98):
“At the risk of being repetitious we would restate the course which the Tribunal is to take in case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force 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 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 s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of 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.”
The methodology enunciated above continues to provide sound guidance to the Tribunal, subject to two caveats. The first step is not in fact the preliminary analysis required. But, in this matter nothing turns on this. Further, the second step which refers to the absence of an SoP is plainly wrong, and has been highlighted in subsequent Federal Court decisions – Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [31].
STEP ONE
The hypothesis advanced by the veteran is that the food he consumed during his RAN service was high in animal fat, and, as a result, this caused or contributed, to his contraction of prostate cancer.
The Respondent concedes that the veteran’s claim “does not fail at step one” - RS para 3.9.
The Tribunal agrees that this concession is properly made. In Bull v Repatriation Commission [2001] FCA 1832; 66 ALD 271 Emmett and Allsop JJ made the following observation – [18]/276:
“It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis…”
Their Honours also pointed out that it is impermissible at this stage for the Tribunal to find facts or reject matters – [21]/277. The formulation of the opinion required by s 120(3) involves an assessment of the factual material before the Tribunal. It involves reaching an opinion about a factual matter – [22]/277.
Having considered the factual material before the Tribunal, I find that it points to the hypothesis advanced by the veteran and to use some of the terminology outlined by their Honours, is not patently fanciful or incredible or too remote.
STEP TWO
It is not disputed that there is an SoP in force for malignant neoplasm of the prostate. The relevant SoP for a veteran who has rendered hazardous service is Instrument 53 of 2014.
STEP THREE
Introduction
While not disputing Step One, the Respondent contends that the veteran’s claim fails at Step Three – ROS para 3.10.
The Respondent also concedes that there is no issue on the material before the Tribunal that the veteran suffered malignant neoplasm of the prostate, being a “kind of disease” to which SoP 53 of 2014 applies – ROS 3.17.
The Respondent drew the Tribunal’s attention to the following observation of Black CJ, Drummond and Kenny JJ in Repatriation Commission v Hill [2002] FCAFC 192; 69 ALD 581 at [57]/597:
“a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out ‘the factors that must as a minimum exist’ and ‘which of those factors must be related to service’. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy s 120(3) and s 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.”
It is not open to the Tribunal at this stage to infer or assume that each essential SoP element is met – Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352 at [63]/365.
The correct approach to be adopted by the Tribunal at Step Three was summed up by Cowdroy J in King v Repatriation Commission (King) [2011] FCA 1436 as follows (at [46]):
“The correct application of the SoP proceeds in the following manner. Clause 5 sets out the factors that must ‘as a minimum exist before it can be said that a reasonable hypothesis has been raised’ connecting the applicant’s prostate cancer with his relevant service. Accordingly, the investigation must first be directed to the question whether any one or more of the several factors itemised in clause 5 of the SoP are satisfied or ‘raised’. Only when that inquiry has been determined in favour of a veteran, does the inquiry then shift to the threshold issue, namely whether that factor is related to service.”
The animal fat consumption factor of SoP 53 of 2014 contains the following three essential elements:
(a)There must be an increase in animal fat consumption;
(b)The degree of increase must be by at least 40% and to at least 50 grams per day; and
(c)This level must be maintained for at least five years within the 25 years before the clinical onset of malignant neoplasm of the prostate.
The Respondent properly concedes (ROS para 3.19) that the terms of the animal fat consumption factor do not require that:
(a)The relevant increase in animal fat consumption arose only during the period of the veteran’s hazardous service; or
(b)The five year period includes the period in which the veteran rendered hazardous service.
The first concession flows from the following observations of Cowdroy J in King (at [47, 49]):
“47 Significantly the factor contained in clause 5(c) of the SoP, upon which the claim was based and which is the only factor for consideration in these proceedings, does not specify that the 40% increase must be assessed only before and after the applicant’s operational service…
49 As shown in the table set out at [38] above the Tribunal was presented with evidence demonstrating that the applicant had increased his animal fat consumption by over 40% taking into account both his operational and non-operational service.”
In making the second concession, the Respondent drew the Tribunal’s attention to observations of Katzmann J in Knight v Repatriation Commission [2010] FCA 1134; 52 AAR 547 at [55], [58]/558:
“55 I am unable to agree. With respect, in my view the Tribunal misconstrued the SoP. It put an unnecessary gloss on the clause to require that exposure during the five years before the clinical onset of ischaemic heart disease occur during service. If that was the intention, why not expressly say so?...
58 Clause 6 is concerned with the aetiology of ischaemic heart disease, not its relationship to service. I accept the argument put by Mr Vincent, counsel for Mrs Knight, that the purpose of the qualification in the last clause of factor 6(i) was to incorporate a medical requirement for attribution of ischaemic heart disease to passive smoking, namely, the existence of a latency period of no more than five years from the last exposure. But an applicant does not fit into the template of the SoP unless, in addition to meeting one of the factors in clause 6, at least one of the factors related to operational service. The SoP does not, therefore, ‘set out factors that connect ischaemic heart disease with the relevant service’. Rather, it sets out factors that the Repatriation Medical Authority recognises as potential causes of ischaemic heart disease. In other words, it sets out factors that can be connected with service. Whether or not a factor is connected with the relevant service is answered by applying s 196B(14) of the Act.”
First element – increased animal fat consumption
The Respondent concedes (ROS para 3.21(a) that the analysis performed by Ms O’Shea confirms that the veteran’s animal fat intake increased by 92.9% after enlisting and until the onset of prostate cancer. This is greater than the 40% increase mandated by SoP 53 of 2014.
Second element – degree of increase
The Respondent concedes (ROS para 3.21(b)) that Ms O’Shea’s report also suggests that the veteran’s saturated fat intake increased after enlisting and until the onset of prostate cancer to approximately 73.64 g per day, which is greater than the 50 g threshold mandated in SoP 53 of 2014.
Third element – length of time diet is maintained
The veteran rendered defence service for approximately 37 years, and he claims in the statements outlined previously:
(a)The food served on RAN ships in the period 1977 until at least 1990 consisted of many items with a high animal fat content, and the July 1974 menu for HMAS Swan is provided as an example of this;
(b)The RAN menu, for which HMAS Swan is an example, did not change significantly until the 1990’s when healthier choices were included in the RAN menus – Exhibit 2 p. 19 lines 10 - 13;
(c)During much of the time that he was enlisted from 1977 until the 1990s, he served on board either RAN or RN ships and, accordingly, had limited choices to reduce his degree of animal fat consumption;
(d)By the time the RAN menu changed in the 1990s he so was habituated to eating fatty foods that he continued to partake of high animal fat food choices;
(e)In the three years he served on exchange with the Royal Navy, the majority of the time was spent on ships where the menu was even higher in animal fat.
The Respondent did not contest that the evidence of the veteran allows the Tribunal to find that the veteran maintained the level of animal fat consumption previously discussed for at least five years within 25 years before the clinical onset of neoplasm of the prostate.
Are the essential elements of the hypothesis ‘related’ to hazardous service
As Katzmann J explained in Knight, clause 6 of the SoP is concerned with aetiology of malignant neoplasm of the prostate, and not its relationship to service.
Even if the Tribunal accepts, as it does, that the veteran satisfies the requirement of the Factor outlined in clause 6(c), attention is then drawn to the requirement of clause 5 which provides:
“Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.”
As Cowdroy J explained in King, having determined that clause 6(c) has been ‘raised’ the Tribunal must then move to the second stage of the inquiry and determine if the relevant factor was related to the veteran’s relevant service by applying the provisions contained in s 196B(14).
The Respondent contends (ROS paras 3.34-3.35) that it is not sufficient for the veteran to point to evidence which suggests the diet he consumed whilst in RAN generally meets the requisite levels of animal fat consumption in order to satisfy all essential elements of the SoP. Rather, the veteran must also demonstrate a causal connection to his hazardous service (being his relevant service). In determining if that causal connection is satisfied, the Respondent contends, that the Tribunal is unable to infer or assume that is the case merely by reason of the veteran having rendered hazardous service. In short, the mere fact of rendering hazardous service, is not of itself, the gateway to satisfying the necessary causal connection.
The Respondent then contends, in relation specifically to s 196B(14) (ROS para 3.41), that there is no evidence, factual or otherwise, that the veteran’s increase in animal fat consumption, to at least 50 grams per day, maintained for a period of five years:
(a)resulted from an occurrence that happened whilst the veteran was rendering hazardous service in the period 30 March 1988 to 20 December 1988;
(b)arose out of, or was attributable to the hazardous service the veteran rendered in the period 30 March 1988 to 20 December 1988;
(c)was contributed to, in a material degree, or was aggravated by the hazardous service the veteran rendered in the period 30 March 1988 to 20 December 1988;
(d)would not have occurred ‘but for’ the veteran rendering hazardous service from 30 March 1988 to 20 December 1988.
Specifically, the Respondent contends (ROS para 3.42) the evidence establishes that at the time the veteran rendered hazardous service, he had been consuming the standard RAN diet for a number of years and there was no material change to the veteran’s diet during his period of hazardous service.
Consequently, it is contended (ROS para 3.46) that the period of hazardous service the veteran rendered should be seen as merely the setting in which the veteran’s diet (already high in animal fat consumption) continued.
As there is no evidence before the Tribunal of any specific occurrence during the veteran’s hazardous service, there is no basis for applying s 196B(14)(a). Further, the evidence previously outlined provides no basis for contending that ‘but for’ his hazardous service his animal fat consumption would have reached or been maintained at the required level for the required number of years: a 196B(14)(f)(i) – see the observations of Nicholson J in Repatriation Commission v Dunn [2006] FCA 1703 at [47].
Consequently, the focus of the Tribunal’s inquiry is directed to s 196B(14)(b) and (d).
The starting point in considering the Respondent’s contentions is the Full Federal Court decision of Gilkinson v Repatriation Commission [2011] FCAFC 133; 197 FCR 102. Mr Gilkinson joined the RAN in 1965 when he was aged 16 and was discharged in 1977. He had 10 periods of operational service on HMAS SYDNEY between February 1970 and November 1972. He suffered from sleep apnoea and claimed that this condition was related to his operational service. The relevant SoP was No 13 of 2005, and Factor 5(b) was “being obese at the time of the clinical onset of sleep apnoea”.
Perram J found as follows ([12]/106-107):
“The learned primary judge was concerned that if para (b) was not given some more confined operation then it would effectively render para (d) superfluous. However, I do not think this can, with respect, be correct. Although there is some apparent similarity, the two provisions deal, I think, with discrete topics. Paragraph (b) is concerned with those cases where the factor (which stands as a proxy for the injury and disease within the intersticies of ss 120 and 120A) would not exist without the service; para (d) with those cases where the factor would have existed in some form without the service but where the service can be seen as contributing to or aggravating it. I do not agree, therefore, that giving para (b) the same kind of operation as the same words in s 9(1)(b) and its predecessors should impact on the operation of para (d).”
Nicholas and Robertson JJ made the following introductory observations ([26] – [29]/109):
“26 Section 196B(14) prescribes where a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person. The emphasis is in the text of the Act and relates back to s 196B(2)(e).
27 Thus, in the present case, being obese at the time of the clinical onset of sleep apnoea was related to service rendered by the appellant, if, relevantly, that factor arose out of or was attributable to that service or was contributed to in a material degree by, or was aggravated by, that service.
28 It is clear that the Tribunal expressly addressed at [41], s 196B(14)(d), that is, whether the factor of being obese was a the time of the clinical onset of sleep apnoea was contributed to in a material degree by, or was aggravated by, the service rendered by Mr Gilkinson. The question is whether that provision necessarily covered the entirety of the ground of s 196B(14)(b).
29 In our view, it cannot be said as a universal proposition that, for the purposes of the Act, whether a factor was contributed to in a material degree by, or was aggravated by, the appellant’s service is broader test which always subsumes the question of whether a factor arose out of, or was attributable to, that service.”
Their Honours then gave detailed reasons for the above propositions. Of importance for this matter is the fifth reason which is set out below – ([36] – [39]/110-111):
“36 Fifth, the learned primary judge’s conclusion rests on the proposition that s 196(14)(b) requires the applicant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease.
37 In our view this construction is inconsistent with Roncevich at [27] where the plurality in the High Court said that the use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘was attributable to’ manifested a legislative intention to give ‘defence-caused’ a broad meaning. Their Honours added:
‘A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.’
38 Her Honour’s construction is also, in our view, inconsistent with Law where the Full Court at 150-151 considered the expressions ‘has arisen out of’ and ‘is attributable to his war service’ then to be found in s 101(1)(b) of the Repatriation Act 1920 (Cth). As to the former of these expressions, ‘has arisen out of’, the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause. Their Honours said that the expression ‘arisen out of’ was different to ‘caused by’ or ‘results from’ and was satisfied if some less proximate causal relationship was established other than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description ‘arising out of’. As to the expression ‘is attributable to’ their Honours said that the cause need not be the sole or dominant cause and that it was sufficient to show ‘attributability’ if the cause is one of a number of causes provided it is a contributory cause.
39 Contrary to the approach of the learned primary judge (see [41] of her Honour’s reasons as set out above) allowing for the different subject matters, we see no reason to think that a different approach was intended by s 196B(14) to the approach in ss 8, 9 and 70. This is particularly so where, on our reading of the extrinsic material (see below), the Minister envisaged a consistent usage.”
The Respondent correctly contends that simply rendering hazardous service is insufficient to found the necessary causal connection mandated by s 196B(14). The fact that a veteran has rendered hazardous service is not a “gateway” or “answer” to satisfying the requirement of causal connection to service. In this regard reference can be made to the following finding of Nicholson J in Dunn v Repatriation Commission [2006] FCA 1703 at [46]:
“It is necessary to return to the precise words of 5(c) of the SoP. The opening words state the factors which must as a minimum exist before it can be said a reasonable hypothesis has been raised connecting the malignant prostate with the circumstances of the person’s death. The three circumstances in (c) have been set out above. The third factor is the duration of the consumption for the 20 year period preceding the clinical onset. Of all three factors it was necessary in accordance with cl 4 of the SoP that they be related to relevant service. Step three in Deledio at 97 makes this apparent when it states ‘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…’ That is, the hypothesis could not be raised as reasonable in accordance with the SoP unless there was some material pointing to the connection between the 20 year post-operational service consumption being connected with the relevant service. As was the case in Byrnes at 569, the hypothesis is one of connection of the veteran’s condition with the circumstances of his service. If there is an assumed fact it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.”
The evidence previously outlined demonstrates that the veteran increased his diet of animal fat immediately upon joining the RAN in 1977. The relevant hazardous service did not take place for approximately 11 years after the veteran enlisted, and his own statements suggest that during much of that time he served on RAN ships and consumed the “fatty” diets that were then served.
Attention needs to be given to the findings of Perram J in Gilkinson, where his Honour opined that s 196B(14)(b) is addressed to those matters where the factor would not exist without the service.
Further, Nicholas and Robertson JJ in Gilkinson observed that the veteran’s relevant service does not have to be the real, sole, dominant or effective cause of the factor (animal fat consumption), but there must be a consequential relationship.
Here, the evidence does not support a finding that there is a consequential relationship. The veteran’s hazardous service was short in duration and in terms of food consumption not materially different from either his diet on RAN ships between 1980 and 1986 or other Royal Navy ships between 1986 – March 1988, or, indeed his diet on RAN ships on his return to Australia. There is, in short, no evidence that the veteran’s increase in animal fact consumption arose out of, or was attributable to his hazardous service to any degree.
Consequently, the focus of the Tribunal’s inquiry is limited to s 196B(14)(d) and reduced to one question, namely: was the factor causing, or contributing to, the veteran’s prostate cancer contributed to in a material degree, or aggravated by, his hazardous service?
In answering that question, attention can be drawn to one unusual feature of this matter. The veteran continues to serve, and, as such, the Tribunal is not presented with the usual situation of comparing animal fat consumption pre-service, during service and post-service. The Tribunal does not have to approach this matter from the usual prism of ascertaining whether lengthy post-service dietary habits have the necessary relationship to animal fat consumption during service. All of the complexities and evidentiary problems that necessarily flow from those scenarios are absent.
The undisputed evidence is that the veteran served, on exchange, with the Royal Navy for three years between 1986 and 1989, and approximately 70 per cent of that time was spent at sea – Exhibit 1 T13 p. 188 para 13.
The veteran served with the Royal Navy in the Persian Gulf undertaking mine clearance operations in the immediate aftermath of the long running Iran-Iraq War, and it is this period which constitutes the hazardous service.
When giving evidence at the Veterans’ Review Board hearing on 27 May 2016, the following exchange with the veteran occurred – Exhibit 2 pp. 26 – 27:
“MS That – the HMS – Herald – what kind of ship was that?
MR It was a hydrographic survey ship as well…It was deployed in support of the mine clearance operations – as a command ship…it was a class of ship that was constructed in the 1960’s…
MS So still what we would call old technology.
MR Absolutely. Yes…In fact, she was older technology than the ship I served in in Australia before I deployed to the Royal Navy…She’s the white one in the centre…She’s the big target
MS Much bigger than the others.
MR They’re mine hunters so UK, French…Belgian, Dutch…all ships are targets
MR Yes. Submarines would say the same thing.”
The veteran states (Exhibit 1 T5 p. 16) that he was at this time “consuming large meals” to meet “the physical and mental demands of seagoing operational service in stressful environments”.
There is also the undisputed evidence about the type of food which was served on Royal Navy ships. The food was high in animal fat, with an emphasis on offal and high fat potato dishes. The evidence suggests that the animal fat content of the Royal Navy dishes was higher than the animal fat content of dishes served on RAN ships of that era.
The evidence presented, therefore, is as follows:
(a)The veteran enlisted when he was 17 years old;
(b)He lived with his family and had a well-balanced diet;
(c)The food that the veteran consumed post-enlistment was higher in animal fat than the food he consumed at home;
(d)He rendered eligible defence service from 1977 until 1994, and hazardous service between March and December 1988;
(e)Following completion of officer training in 1980 the veteran was posted to sea service;
(f)It was not until 1989 that the veteran had his first shore posting for any significant period of time, and thereafter he continued to rotated so that he served two years at sea and two years on shore – Exhibit 2 p. 11;
(g)From 1986 – 1989 he served on exchange with the Royal Navy;
(h)The food the veteran consumed whilst serving with the Royal Navy was even higher in animal fact that the menu on the RAN ships;
(i)The veteran describes his service with the Royal Navy in the Middle East as stressful.
So much is not disputed, however the critical question is whether the veteran’s hazardous service contributed to in a material degree or aggravated his consumption of animal fat.
Unfortunately the evidence presented does not allow the Tribunal to reach a positive conclusion.
By the time the veteran rendered hazardous service he had already been consuming foods high in animal fat for eleven years. Further, even accepting that the food he ate whilst on HMS Herald was higher in animal fat than that served on RAN ships, the evidence presented does not allow the Tribunal to draw any sensible conclusions on the degree of difference.
The evidence also does not suggest that the period serving on HMS Herald either aggravated or materially contributed to the veteran’s animal fat consumption habits. On the contrary, the evidence presented suggests a steady pattern of food consumption from 1977 and while the period of hazardous service may have involved the consumption of even more “fatty” foods, the Tribunal is unable to find any evidence that would significantly separate the veteran’s eating habits during this time from periods before or after. In short, the evidence supports the Respondent’s contention (ROS para 3.46) that the veteran’s period of hazardous service should be seen as merely the setting in which his high animal fat consumption continued.
While the veteran rendered hazardous service for approximately nine months in 1988, that service did not occur at the beginning of the veteran’s service history, did not constitute a major proportion of his service time, involved no incident or event that may have had ongoing implications on his diet and simply constituted a continuation of his dietary habits. In other words it was a short interregnum whose only exceptional feature is that it provided the legal basis for his claim pursuant to SoP 53 of 2014.
It is particularly unfortunate that this is the case, because in the past the relevant malignant neoplasm of the prostate SoP on the balance of probabilities contained an animal fat factor. If that had been the case when the veteran commenced these proceedings, then perhaps a different result may have ensued insofar as the Tribunal would not have been restricted to focusing on the period of hazardous service.
As the veteran’s claim fails at Step Three it is not necessary to proceed to Step Four.
DECISION
The decision under review is affirmed.
I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
........................................................................Associate
Dated: 13 March 2018
Date(s) of hearing: 11 December 2017 Date final submissions received: 29 January 2018 Advocate for the Applicant: Mr R A Lipscombe PSM, Vietnam Veterans' Federation (ACT Branch) Inc Solicitors for the Respondent: Mr L Woolley, Sparke Helmore
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