JQVC and Repatriation Commission (Veterans' entitlements) - [2018] AATA 478

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 478
Decision Date: 13 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the appeal of a veteran, JQVC, against a decision of the Repatriation Commission concerning his entitlement to a pension. The veteran claimed an increase in his pension due to malignant neoplasm of the prostate and erectile dysfunction, linking these conditions to his service in the Royal Australian Navy. The core of the dispute revolved around whether the veteran's hypothesis connecting his prostate cancer to his naval service, specifically through a diet high in animal fats, was sufficiently established under the relevant legislative framework.

The legal issues before the Tribunal were whether the veteran's hypothesis met the requirements of clause 6(c) of the Statement of Principles (SoP) instrument, specifically SoP 53 of 2014. This required determining if the essential elements of the hypothesis were related to hazardous service, and if the hypothesis was not fanciful, incredible, or too remote. The Tribunal was tasked with assessing the evidence presented regarding the veteran's dietary habits before and during his naval service, and whether these habits could be considered a factor contributing to his diagnosed conditions.

The Tribunal's reasoning focused on the evidentiary threshold required for a hypothesis to be accepted. While acknowledging the veteran's account of his dietary intake during service, which he described as high in animal fats due to the standard naval menu, the Tribunal found that the hypothesis did not satisfy the criteria. The Tribunal concluded that the veteran's pre-enlistment diet was rich in fruits, vegetables, and varied meats, and that his subsequent dietary habits during service, while potentially high in animal fats, did not establish a sufficiently strong or direct link to his prostate cancer that was not fanciful, incredible, or too remote. Consequently, the Tribunal determined that the claim failed at Step Three of the assessment process, meaning it was unnecessary to proceed to Step Four.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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