Karey and Repatriation Commission
[2002] AATA 166
•14 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/208
VETERANS' APPEALS DIVISION )
Re Brian Karey
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date14 March 2002
PlaceCanberra
Decision The decision under review is set aside. In substitution the tribunal decides that: 1. The applicant's condition of malignant neoplasm of the prostate is a war-caused disability. 2. The matter is to be remitted to the respondent for any reassessment of the rate of pension payable in view of this additional accepted disability. 3. The date of effect of this decision is 24 December 1996.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Disability Pension – malignant neoplasm of prostate – increase in animal fat consumption – relevance of healthy diet and lifestyle, high levels of physical exercise – change in eating patterns during operational service – history of veteran's changes in weight - exposure during operational service to food high in animal fats – link between operational service and fatty diet - hypothesis not fanciful, impossible, incredible, too remote or too tenuous – reliance on evidence involving guesswork and recollection – disability found to be war caused
Re Keenan and Repatriation Commission [2000] AATA 707
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193, 206
Bull v Repatriation Commission [2001] FCA 1832
Veterans' Entitlement Act - ss 6C(1), 6D(1), 7(1)(a), 9(1)(a), 13(1)(c), (d), 14(1), (3), (4), 20(1), 120(1), (3), 120A(1), (3), 196B(1), (2), 196D.
Statement of Principles - 84/99 - Malignant Neoplasm of the Prostate
REASONS FOR DECISION
14 March 2002 Mr M J Sassella, Senior Member
History of application
On 25 March 1997 Mr Brian Karey ("the applicant") lodged with the Department of Veterans' Affairs ("the DVA") a claim for Disability Pension in respect of adenocarcinoma of the prostate (T4). It was said to be caused by smoking. The date of onset was 1996. He already had a pension at 100% of general rate in respect of sensorineural deafness, dislocation of the right shoulder, hyperkeratoses. Deflected nasal septum and lumbo-sacral intervertebral disc lesion (Ex TD1/2).
On 24 April 1997 a Repatriation Commission ("the respondent") delegate decided (T5) that the correct diagnosis was malignant neoplasm of the prostate ("MNP"). There was a relevant Statement of Principles ("SoP") released by the Repatriation Medical Authority. This held that MNP could be war-caused only if its onset was related to exposure to herbicides in Vietnam.
On 19 June 1997 the applicant lodged an application for the Veterans' Review Board to review the decision (T6). A delegate conducted a review under s 31 of the Veterans' Entitlements Act 1986 ("the Act") and on 4 September 1997 decided not to interfere with the primary decision (T7).
On 15 May 2000 the VRB decided to affirm the primary decision (T10/39ff). On 22 May 2000 the VRB sent a letter notifying the applicant of this result (T10/38).
On 9 June 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision of the respondent as affirmed.
Decision under review
The VRB considered and applied a different SoP from that applied by the respondent. The VRB applied SoP 95/95 as amended by SoP 191/96. The applicable factor required that the applicant must have increased animal fat consumption by at least 40% and to at least 70g/day for at least 20 years before the clinical onset of MNP.
The VRB noted that only a small part of the veteran's service was eligible service. This was seven months in 12 years. His fat consumption needed to increase by at least 40% and by an amount of 70g/day from the start of eligible service in the HMAS Snipe. The VRB noted that the applicant weighed 12 stone 5 lb on entry into the navy and only 10lb more when he was discharged. The VRB did not accept that the applicant's animal fat intake had risen by more than 40% to at least 70g/day from the day before the veteran commenced eligible service. The VRB found that the SoP factor was not satisfied. There was no reasonable hypothesis raised.
Relevant legislation
The relevant statutory provisions are found in the Act: ss 6C(1), 6D(1), 7(1)(a), 9(1)(a), 13(1)(c), (d), 14(1), (3), (4), 20(1), 120(1), (3), 120A(1), (3), 196B(1), (2), 196D.
Veterans' Entitlements Act 1986
…
6C Operational service - post World War 2 service in operational areas(1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b)a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…
6D Operational service - other post World War 2 service
(1)This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a) was assigned for service:
(i)in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or
(ii)in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or
(iii)in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or
(b)was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
…
7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…
9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
Part II - Pensions, Other than Service Pensions, for Veterans and their Dependants
…
Division 2 - Eligibility for pension
13 Eligibility for pension(1) Where:
…(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…
14 Claim for pension(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
…(3) A claim for a pension:
(a)shall be in writing and in accordance with a form approved by the Commission;
(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…
20 Dates of effect that may be specified in respect of grant of claim for pension(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…
Part VIII - General Provisions Applicable to Pensions etc.
…
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.
Note: This subsection is affected by section 120A.
…(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.
Note: This subsection is affected by section 120A.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
…(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.
Note: See subsection (4) about the application of this subsection.
…
Part XIA - the repatriation medical authority
…
196B Functions of Authority(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
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.
Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
…
196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
…The relevant SoP is SoP 84/99.
STATEMENT OF PRINCIPLES CONCERNING MALIGNANT NEOPLASM OF THE PROSTATE
ICD-10-AM CODE: C61
Veterans' Entitlements Act 1986
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about malignant neoplasm of theprostate and death from malignant neoplasm of the prostate.
(b) For the purposes of this Statement of Principles, "malignant
neoplasm of the prostate" means a primary malignant neoplasm
of the cells of the prostate gland, attracting ICD-10-AM code C61.
This definition excludes soft tissue sarcoma, non-Hodgkin's
lymphoma and Hodgkin's disease.…
Factors that must be related to service4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting malignant neoplasm
of the prostate or death from malignant neoplasm of the prostate with
the circumstances of a person's relevant service are:
…
(c) increasing animal fat consumption by at least 40% and to at least70gm/day for at least 20 years before the clinical onset of
malignant neoplasm of the prostate; or…
Other definitions
8. For the purposes of this Statement of Principles:
"animal fat" means fat contained in or derived from meat, other flesh or
offal from animals (including birds), and dairy products;
…
"ICD-10-AM code" means a number assigned to a particular kind of
injury or disease in The International Statistical Classification of Diseases
and Related Health Problems, 10th revision, Australian Modification
(ICD-10-AM), effective date of 1 July 1998, copyrighted by the National
Centre for Classification in Health, Sydney, NSW, and having ISBN 1
86451 340 3;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Ninth day of November 1999
The Common Seal of the )
Repatriation Medical Authority )
was affixed to this instrument )
in the presence of: )
KEN DONALD
CHAIRMAN
Background
The applicant was born on 22 July 1932. He served in the navy from 26 November 1954 until 25 November 1966 (T3/7). He completed operational service from 2 June 1964 until 29 January 1965 (T3/9). The applicant's work history included work as a railway fireman (T3/20, Ex A1) and project management for the Department of Defence from 1966 until 1990 (T4/26).
Hearing and appearances
The tribunal convened a hearing in this matter in Canberra on 14 May 2001 and 9 July 2001. Mr Walker of counsel represented the applicant. Mr Modder of the DVA represented the respondent. The tribunal had before it the following documents which were received in evidence and given the attached exhibit numbers:
Exhibit TD1 – Section 37 Statement and attached documents T1-T12.
Exhibit A1 – Statement of service diet by applicant, 28 September 2000.
Exhibit A2 – Record of applicant's further eligible service.
Exhibit A3 – Report and curriculum vitae of Ms C Richards, dietitian, 15 December 2000.
Exhibit A4 – Comments by Ms Richards on report by Mr Friderich.
Exhibit – A4A Applicant's statement of facts and contentions, 12 January 2001.
Exhibit A5 – Journal article by Claude Bouchard et al, Long-term overfeeding in identical twins.
Exhibit A5A – Further comments by Ms Richards on report by Mr Friderich.
Exhibit A6 – Applicant's written submissions, 6 August 2001.
Exhibit A7 – Applicant's response to respondent's written submissions, 27 August 2001.
Exhibit R1 – Report by Mr W Friderich, dietitian, 12 April 2001.
Exhibit R2 – Additional service records.
Exhibit R3 – Scientific review for the Department of Veterans' Affairs by Dr Ruth English, AO, August 1998.
Exhibit R4 – Respondent's statement of facts and contentions, 4 May 2001.
Exhibit R5 – Supplementary report by Mr Friderich, 10 June 2001.
Exhibit R6 – Information from the Department of Veterans' Affairs about the applicant's operational service, 20 July 2001.
Exhibit R7 – Respondent's written submissions, 15 August 2001.
Evidence from dietitian, Ms C L Richards
The applicant's representatives had enlisted assistance from Ms Richards for the presentation of evidence as to the applicant's dietary intake over the relevant period or periods. She had seen Mr Karey on four occasions and had worked with him to reconstruct the typical food consumption menus he had enjoyed at different times in his life span. She described how she used a computer software package, "Food Works", which provides an analysis of the nutritional constitution of foods in a diet, including fat content. This was refined by providing serving sizes arrived at by having the applicant consider plastic models of different sizes of common processed foods and inputting this data to the computer.
Ms Richards' conclusions were presented in Ex A3. These, as adjusted by her in her oral evidence, were:
Up to 1954, when the applicant enlisted, he consumed an estimated 32 g of animal fat a day (annexure A).
From 1954 to 1956 the daily animal fat intake was an estimated 60 g (annexure C).
From 1957 to 1961 animal fat intake rose to 250 g a day (annexure D).
From 1961 to 1963 animal fat intake dropped to 150 g a day (annexure E).
From 1964 to 1965 animal fat intake rose to 212 g a day (annexure F).
From 1966 to 1996 animal fat intake rose to 239 g a day (annexure G).
Ms Richards commented that Food Works uses fat content for meat, for example, as it is today, regardless of when the food was consumed. This would have the effect of understating fat content in earlier years in the days before leaner cuts of meat.
Ms Richards concluded in Ex A3 that Mr Karey's animal fat consumption increased during service by more than 40% when compared to his pre-service diet. Further, it increased to over 70 g a day. There was an increase in animal fat consumption during Mr Karey's service in Malaysia. He also had a tendency to prefer a high fat diet after service in Malaysia.
Ms Richards noted that Mr Karey did not lose weight over his period of service. It increased after enlistment and remained in the range of 87-83 kg to the present time.
Ms Richards regarded Mr Karey's fat consumption figures as credible. She thought they were in line with some of the data in the Ruth English research (Ex R3).
Ms Richards was asked to comment on the report by Mr Friderich (Ex R1) who is also a dietitian. He had used a different methodology in his report. He had assigned to Mr Karey an activity factor which changed over time. This relates to a sample of people and produces an average of activity done by those with the sample characteristics. As Ms Richards said, it requires a qualitative judgment as to whether the assessor thinks the subject's activity level is light, moderate or active.
Ms Richards was not enthusiastic about this methodology. She said:
"I have quite a lot of personal experience in tube feeding patients where I use the Schofield equation and I use an activity factor and I'm invariably out. You know, you find that the patient's weight falls or gains, and usually you can finally work out their energy requirement by sequential weighing on certain activity level, because it's only when you have someone who's tube fed that you have the luxury of knowing exactly how many calories are going in an often if they' re bedridden exactly how inactive they are" (transcript, 14.5.01, 22).
Ms Richards then referred to the study in Ex A5. The researchers in that article wished to view the effect of genetics on weight gain. They found 12 pairs of male identical twins and overfed them by 1,000 calories a day. They did this six days a week for 12 weeks. They gained weight on the average of 8.1 kg. However, some gained as much as 13.3 kg. Others gained only 4.3 kg. The range was wide. "But there was reasonable correlation between the twins, but there [were] large differences between one set of twins and another set of twins" (transcript, 14.5.01, 24). It demonstrated individual responses to overfeeding and a possible genetic effect.
Mr Friderich had said that Mr Karey's reported energy intake would have made him significantly underweight before service and morbidly obese after service. However, as Ms Richards said, such generalisations cannot really be applied because of the individual response to overfeeding and other personal differences. Ms Richards was of the view that the only practical way to accurately estimate a free living person's energy requirement is to establish energy intake and take weight measurements regularly. The other way to proceed is to look at someone's energy requirement and inquire how much they eat.
Mr Friderich had operated on the assumption that Mr Karey's activity level fell after he enlisted and so he put on more weight. Mr Karey disputes that. In fact Mr Karey was captain of the cricket team, played rugby and ran what was effectively a gymnasium. "[E]very time they had a chance they were out doing something". Ms Richards also suggested that Mr Friderich had not allowed for the additional energy requirements flowing from increased muscle and bone mass.
Ms Richards was keen to emphasise that Mr Karey's major increase in weight occurred when his energy intake was highest according to the dietary record, 1957-1960.
In cross-examination Ms Richards agreed that assumptions about historical diet based on consumption in capital cities would not necessarily be valid if applied to country areas. In country areas much would depend on what foods were grown. In some areas there could be plenty of meat and milk and little in the way of vegetables. In others, vegetables would be available.
Ms Richards addressed Mr Karey's weight history. In 1954 he weighed 78.5 kg. By 1960 he was 83.5 kg. It has remained fairly consistent since. Ms Richards agreed that the six kg increase from 1954 to 1960 was not a great increase. She said however that some of the energy increase would have gone into moving Mr Karey's body as it grew larger. Mr Karey's body mass index ("BMI") had increased from 26 in 1954 to 27.4 and, by July 2000, 28.8. Mr Karey is towards the top end of the healthy weight range based on BMI scores.
When this matter went into a second day of hearings Ms Richards commented on a second report submitted by Mr Friderich dated 10 June 2001 (Ex R5). He had written that he noted that Ms Richards determined Mr Karey's energy requirement based on her judgment. He said, "This method seems most unusual". He said that if three days' data was available, the average of three days would provide a more accurate reflection of intake. He said that selecting foods to include on a particular day was scientifically unsound and the Food Works program automatically calculates an average per day for all food consumed during the data period. Ms Richards's method would have generated errors. In her response to this it became clear that, to satisfy Mr Friderich, Ms Richards would have had to take three day samples over, say, six periods. She considered that that would have been an incredibly long exercise yielding only dubious additional data. The purpose of looking at only three days was to ascertain the spread of proteins, vegetables and cooking methods in Mr Karey's diet.
Ms Richards explained that the usual procedure for doing accurate food records is to monitor the subject for three days and then to average. In this case Mr Karey was to give Ms Richards additional information [presumably about dietary shifts or emphases] rather than repeat the procedure three times over for each history.
Ms Richards summarised Mr Friderich's focus as being on the estimating of energy requirements without taking account of fluctuations in physical activity levels. She went on to summarise the findings, recorded earlier, as to Mr Karey's animal fat intake over discrete periods.
Mr Modder (for the respondent) asked about any addictive factor in fat. He said that the English report (Ex R3) had found no such addictive quality. Ms Richards said that even the English study found that some people can "zero in" on high fat foods regardless of whether they know the foods are high in fat. They apparently like a food texture that is soft and smooth. She commented too that high fat foods often have more flavour than low fat foods. She went on to say, "I think also in cases with people in the services, they were shown a high fat diet as the diet they were meant to be best trained on. … if I was enlisted I would be assuming that they would feed me the best way they should to keep me going. Like athletes out at the [Australian Institute of Sport]. You feed them the best way to get the best out of them" (transcript, 14.5.01, 37). Ms Richards was asked what it was about the applicant's operational service that caused the applicant to prefer fat after service. She referred again to the stronger flavour often present in high fat foods and the fact that on a ship there was no alternative to high fat foods.
Evidence from the applicant
In his oral evidence Mr Karey described the food he ate before joining the navy. He lived in Caboolture in Queensland where pineapples, bananas, avocados, tropical fruits and vegetables were grown in every back yard. Such foods and fish were always available to him.
He referred to annexure A of Ms Richards's report (Ex A3) and said that he had a very good recollection of what foods his mother served when he was at home. He had relied on his memory in giving information to Ms Richards. He mentioned a heavy involvement in sport and sports training. The applicant's work pre-service, as a railway fireman, was strenuous and demanding. He played rugby league. He surfed and swam. He played tennis until after joining the navy. He had supplied the data informing Ms Richards' other annexures from memory.
The applicant's operational service had been on the HMAS Snipe. He had served more than once on that ship but the operational period was 1964 into 1965. The quality of the food on the Snipe during operational service was less good than before. There were fewer fresh vegetables and there was an increase in bully beef and camp pie. He was working difficult hours – he was on a four hours on watch, eight hours off, pattern. He had trouble sleeping properly. His duties and the stress impacted on his consumption of food. He said that he seemed to eat a lot more because of the hours worked. The stress was there but seems to have been a lesser factor.
While in the navy the applicant played inter-service rugby union, squash, cricket (he was captain of the destroyer's team) and tennis. He ran a fitness program involving a structured physical training program. After leaving the navy Mr Karey jogged every day and worked out in a gymnasium until 1976. He also played golf.
Mr Karey considered that he developed a taste for fatty food. This began in 1958 and "seemed to increase" from 1964-1965 onwards. He ate a high fat diet until diagnosed with prostate cancer in 1996. He said at pages 25-26 of the transcript (9.7.01), "Prior to me joining the Navy, I had a pretty healthy diet. On joining the Navy, it changed somewhat and when we joined the – when I went to sea, the diet changed considerably in so much that the meals wasn't always prepared that well, they were cooked in fat, they were very fatty foods as I recall and I got to like fatty foods and I seemed to be eating more … my diet did change".
Mr Karey thought the navy food was rather constant over the years. It used fairly fixed menus. There was some variation when navy men went ashore but during the operational service period that occurred rarely.
Mr Karey agreed that he was about 78 ½ kg when he enlisted. He said he was "pretty fit" at the time. Asked if he was muscly then, he said he "always pretty stocky". He agreed that his weight increased by about 10 lb from 1954 to 1957. He had never been told by a doctor that he was obese.
Post-hearing submissions
The representatives presented written submissions (Exhibits A6, R7 and A7) after the hearing. From Ex A6, the applicant's final submissions, the following hypothesis emerged. This was that the applicant's war service brought about an increase in the animal fat in his diet [which brought about the MNP]. He relied on Re Keenan and Repatriation Commission [2000] AATA 707. The respondent, it was said, has not disproved the facts necessary to support the applicant's reasonable hypothesis.
Mr Modder (Ex R7) pointed out that the applicant had served in the navy for 10 years before his operational service in Malaysia. Even if the navy diet was fatty, and even if Mr Karey developed a craving for or addiction to fatty foods the habit was well developed before his operational service. The relevant SoPs take account only of increases in consumption of animal fats during operational service.
Mr Modder submitted that Mr Karey had under-reported his fat consumption pre-service. He was an athlete and it must be assumed that he required a high energy diet.
"The Veteran's high level of fitness pre-service indicates much more energy going in, and therefore Ms Richards … under-recorded his pre-service diet. She believes [he] was below the Australian average animal fat consumption pre-service" (paragraph 6).
Mr Karey's own evidence on 9 July 2001 as regards his pre-service diet included as dinner many foods with high animal fat content. The transcript (pages 31-32) shows that he recalls eating as part of a "typical dinner", any of lamb, roast beef, grilled fish, bread and butter pudding, lean grilled steak, potatoes, fresh vegetables, peas, carrots. He also referred to eating steamed pudding with custard and milk and cheese.
Mr Modder sought to discredit Ms Richards' dietary figures. He noted that:
She had to engage in "guesstimates" to a significant degree. Mr Crabb, the applicant's solicitor, in Ex A7, argued in reply that Ms Richards' approach was endorsed by the tribunal in the Keenan case (supra).
The computer programs used by dietitians make assumptions based on United Kingdom and United States data. Mr Crabb responded that this is not the case with Food Works (Ex A7).
The typical country diet was very high in fat content in the 1940s.
Ms Richards "assumes" that consumption of animal fats creates addictive qualities. This is disputed within the profession. Mr Crabb agreed that there may be something in this argument but submitted that such disagreement does not disprove the hypothesis to the necessary degree (Ex A7).
Ms Richards identifies "a big increase in dietary fat intake between 1954 and 1958. This was well before operational service" (paragraph 12).
"There was a corresponding increase in the Veteran's weight between 1954 and 1957; between 1957 and 1959 he went down to 83.5. Even in 1966 he only reached 87.3 ks again. … In my submission this militates against Ms Richards' thesis that the Veteran was somehow addicted to fatty diets" (paragraph 13).
Mr Crabb relied on the evidence as to Mr Karey's sporty lifestyle, right through to 1976, to rebut this.
Mr Modder made several points on the basis of Mr Friderich's report (Ex R1).
On the basis of Ms Richards' findings Mr Karey's pre-service diet was atypical. The Australian average fat consumption was 122 g per day. The veteran's consumption was only 32 g per day. His pre-service diet was under-assessed by 42%. The post-1957 fat diet was over-assessed. At the same time the veteran had said that his pre-service diet was normal for the times [the tribunal has not been able to locate this in the transcript].
Mr Friderich suggests that, on Ms Richards' figures, the veteran would have been starving on enlistment and obese during service. In Ex R5 Mr Friderich states that excessive weight gain during service would be expected if his kilojoule intake increased by 1,200 a day between 1954-1956 and 1957-1959. However, the records and the veteran's evidence indicate that he has never been obese.
Mr Friderich queried Ms Richards' methodology as scientifically unsound.
Mr Modder concluded by stating that it cannot be said that there was a 40% increase in animal fat consumption during service, let alone during the seven months of operational service. He then said that, even if Mr Karey's animal fat consumption rose in the navy during operational service, it would not cause an increase in animal fat intake post-service.
"[T]here is insufficient evidence that any increase in animal fat consumption can be linked to operational service, especially since such service commenced 10 years after entry into the RAN. The Veteran's dietary habits were well established before his operational service between June 1964 and January 1965" (paragraph 21).
In response, Mr Karey's representative commented that the applicant had had operational service on the HMAS Voyager and almost eight months of operational service on the Snipe (Ex A7). [This question of Mr Karey's operational service was never agreed between the parties as the hearing progressed. The tribunal will make findings on this matter below.]
Findings on material questions of fact with reference to the evidence and other materials in support of those findings
The tribunal makes the following uncontroversial findings:
The applicant was born on 22 July 1932 (T4/23).
The applicant served in the navy from 26 November 1954 to 25 November 1966 (T3/7). The question of the period of operational service is a matter of dispute.
The applicant lodged a valid claim on 24 March 1997 (T4 and s 14(3) of the Act).
The date of effect of any decision favourable to the applicant would be 24 December 1996 (Ex A6 and s 20(1) of the Act).
The standard of proof is proof to the standard of the reasonable hypothesis (s 120(1), (3) of the Act).
The SoPs relevant to the determination of this matter are as follows. Prima facie the current SoP on MNP (SoP 84/99) is relevant (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195). However, if the applicant fails because of that SoP, those in force at the date of the primary decision can be tested. These were SoP 95/95 as amended by SoP 191/96.
The tribunal finds that Mr Karey's operational service ran from 2 June 1964 until 29 January 1965. This is based on the best evidence available to the tribunal. The applicant considers that he rendered operational service on the HMAS Voyager from 6 February 1957 to 12 July 1959 (Ex A6). Section 6D of the Act is cited as authority. However, s 6D requires not only that a member of a Defence Force unit served in the Far East Strategic Reserve, but that he or she "is included in a written instrument issued by the Defence force for use by the [respondent] in determining a person's eligibility for entitlements under th[e] Act". The usual sources (the veteran's service records or the findings of the respondent and of the VRB as regards operational service) suggest that Mr Karey's operational service is no greater than 2 June 1964 to 29 January 1965 (as in T5 and T10). However, the respondent's statement of facts and contentions admitted some periods on the HMAS Voyager between January 1958 and April 1959 as operational service (Ex R4). This confusion prompted Mr Modder to undertake to have this matter examined and he provided Ex R6 in consequence. This exhibit reinforced the findings of the respondent and the VRB, however it does not explicitly address the period from 1957 to 1959 involving the Voyager. It is possible that further inquiries may unearth a period of operational service commencing in 1957, but to date that has not occurred. The respondent has, since Ex R4, consistently argued that the period of operational service was 1964-1965 (Ex R6, R7).
The tribunal now turns to consider the applicant's claim for Disability Pension in respect of MNP. Unfortunately the applicant's statement of the applicable hypothesis in Ex A6 (see paragraph 37 above) is imprecise and incomplete. It appears to the tribunal that the hypothesis that has properly been raised is that the applicant, who had been accustomed to a diet low in animal fat before service, joined the navy and, because of exposure during war service in the navy to food high in animal fats, developed a taste for such food. As a result he increased his daily intake of animal fat by at least 40% and to at least 70 g a day for a period of at least 20 years before the clinical onset of MNP.
As found already, the relevant SoP is 84/99.
It is necessary to ascertain whether the hypothesis that has been raised is consistent with the template made up of the requirements in that SoP (Repatriation Commission v Deledio (1998) 49 ALD 193, 206). The requirements in that SoP, and the status of the hypothesis in relation to them, are as follows:
Mr Karey must be suffering from MNP as defined in a certain ICD code (SoP clause 2(b)). Dr Foo (T8/35), a general practitioner, accepts that he has "prostate cancer". He was diagnosed in December 1996 and had a prostatectomy in April 1997. The respondent has not challenged the diagnosis.
Mr Karey must have increased his animal fat consumption by at least 40% and to at least 70g a day for at least 20 years before the clinical onset of MNP (SoP factor 5(c)). Mr Karey's MNP had its clinical onset in December 1996 (T8/35). The hypothesis must therefore be that he was consuming at least 70 g a day of animal fat since December 1976. The applicant, in support of the hypothesis, relied on the figures derived by Ms Richards. These indicate that from 1966 to 1996 animal fat intake was (about) 239 g a day (Ex A3, annexure G). This must have involved an increase of at least 40% (SoP factor 5(c)). It is somewhat difficult to interpret quite what this means. Does it refer to a 40% increase commencing in December 1976? Or, does it refer to a 40% increase commencing on operational service (ie commencing in June 1964)? Or, does it refer to a 40% increase at the outset of navy service? The tribunal takes factor 5(c) to refer to an increase of 40% commencing during operational service. That would seem consistent with the requirement in clause 4 of the SoP that satisfaction of any factor in clause 5 must be related to any operational service rendered by the veteran. The applicant presented Ms Richards' figures in support of the hypothesis raised. These indicated that from 1961 to 1963 animal fat intake was 150 g a day (Ex A3, annexure E) and that from 1964 to 1965 animal fat intake rose to 212 g a day (Ex A3, annexure F). This was a 41% increase.
The increased consumption of animal fat must be related to Mr Karey's operational service (SoP clause 4). There was considerable discussion in the hearing about this. Ms Richards appears to accept that a person can develop a taste for the smoother, more highly flavoured foods that generally contain significant animal fat content if exposed to that type of food. Mr Modder pressed the evidence from Dr English (Ex R3 at page (iv)) to the effect that there is "universal agreement in the literature that many complex factors affect an individual's food patterns [and that] it is considered speculative to place much weight on a period of military service as responsible for food consumption patterns maintained for a minimum period of 20 years …". However, for the tribunal, this issue was largely settled by the brace of test cases on which the tribunal president sat in 2000. The leading case was Re Keenan (supra) in which the tribunal said at paragraph 58, in relation to the relationship with service:
"The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Does the narrow focus on the dubious reactor at levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected."
The tribunal considers that the hypothesis has survived step 3 of Deledio (supra). The hypothesis is consistent with the template provided in the SoP.
The tribunal is also aware that the Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission [2001] FCA 1832 Emmett and Allsop JJ said:
"18 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: see the emphasised paragraph in [17] above. …
"21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.
"22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …
"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities."
For reasons that will be demonstrated in relation to Deledio (supra), step four, the tribunal has some difficulties in easily accepting the hypothesis that has been raised. However, given that Ms Richards, a dietitian of some eminence (judging from her curriculum vitae), has endorsed the arguments informing that hypothesis, the tribunal cannot find that the hypothesis is fanciful, impossible, incredible, too remote or too tenuous.
The tribunal must then consider whether there is evidence sufficient to establish beyond a reasonable doubt that there is no sufficient ground for determining that Mr Karey's MNP was war-caused. The evidence that may do this is the evidence from Mr Friderich and the objective evidence as to the applicant's weight over time.
The evidence concerning the applicant's weight is that he weighed:
4 November 1954: 173 lb (12 stone 5 lb) (78.5 kg) (T3/21) – this must be a reliable figure as it is a navy physical examination.
1957-1959: 192 lb (13 stone 10 lb) (87.3 kg) (Ex A1) – this is the applicant's own recall and may be unreliable.
29 August 1960: 184 lb (13 stone 2 lb) (83.5 kg) (T3/21) - this must be a reliable figure as it is a navy physical examination.
1 February 1962: 184 lb (87.3 kg) (T3/17) – again a reliable figure.
20 March 1962: 183 lb (13 stone 1 lb) (83.2 kg) (T3/15) – again a reliable figure.
1964-1965: 190 lb (13 stone 8 lb) (86.4 kg) (Ex A1) - this is the applicant's own recall and may be unreliable.
18 November 1966: 183 lb (13 stone 1 lb) (83.2 kg) (T3/10) – again a reliable figure.
1966-2001: 189 lb (13 stone 7 lb) (85.9 kg) (Ex A1) - this is the applicant's own recall and may be unreliable.
2000: 188 lb (13 stone 6 lb) (85.25 kg) (Ex A3) – a reliable figure.
Utilising only the reliable figures (as the applicant's own figures appear out of line overestimates), the tribunal notes from this that in March 1962 the applicant weighed 83.2 kg. In November 1966 he weighed the same. Even if his weight increased during operational service that weight gain was not sustained.
This is the type of evidence that motivated Mr Friderich in his assessments. It must be said that the tribunal has some sympathy with the logic of Mr Friderich's observations. Apparently in 1954 Mr Karey was only a little over 174 cm (five feet eight inches) tall. At the same time he weighed 78.5 kg, or more than 12 stone. He had a BMI of 25.9. He was not underweight. While it is accepted that he was an athletic young man he was carrying weight that suggests to a lay person, and apparently to Mr Friderich, that he was also carrying a fair ratio of body fat, or a musculature that would dictate a form of high energy diet. At the same time, as was noted in paragraph 40 above, in cross-examination Mr Karey described a pre-service diet that appeared, at least superficially, somewhat rich in animal fat. This, however, bears more on Mr Karey's pre-service diet. That diet is not directly relevant because the comparison of relevance is between his diet before June 1964 and his diet after June 1964, ie 10 years after he entered service. It may be relevant, however, in assigning weight to the evidence of the applicant and Ms Richards.
From its lay perspective, the tribunal has to comment that it seems curious that Mr Karey's weight rose between 1954 and 1966 by only 4.7 kg (10 lb) despite a suggested increase in daily animal fat intake from 32 g to 239 g. This outcome is counter-intuitive for anyone, especially a lay person, who has observed anything about diet and its effect on weight. Again, from a lay perspective, it seems that a person's weight can rise as he or she ages because of metabolic effects, even if that person continues to consume the same or a lesser quantity of fat. One would naturally expect a ballooning in weight from a dietary intake of the type suggested by Mr Karey.
However, there are also difficulties in readily accepting Mr Friderich's methodology and conclusions. He appears never to have seen Mr Karey. He provided an assessment based on the papers. There seems value in Ms Richards' comments on the methodology used by Mr Friderich. He was required to adopt assumptions about the applicant's activity levels in the absence of any direct evidence from Mr Karey. His assumptions are also conservative. In Ex R1 he says that Mr Karey was an active man before enlistment and his activity level was assumed to be "moderate to heavy". From the evidence before the tribunal, an assumption of "heavy" would have seemed more accurate. The assumption made later was that in service his activity was moderate. However, there was fairly convincing evidence before the tribunal that Mr Karey's activity levels remained well above any average throughout service and later. From the tribunal's perspective this requirement to reason from population averages and to make assumptions, largely in the abstract and without consultation with Mr Karey, renders Mr Friderich's reports largely useless.
Mr Walker was accurate in referring the tribunal to the remarks in Keenan (supra) about acceptable evidence in these cases. The tribunal in that case said at paragraph 59:
"This general consideration of the expert evidence before the Tribunal convinced the Tribunal that because of the inherent inaccurate basis of the post-war fat consumption survey and the pre-war and wartime diet surveys all comparisons derived from these figures cannot aspire to any degree of mathematical precision. However, as indicated earlier, it is on this evidence the Tribunal must make its decision. Further, the current knowledge is limited as the processes surrounding fat preference and ingestion are both multifactorial and complex, which in turn limits the guidance available to the Tribunal as to which of the factors are the most significant amongst these many processes."
Not without certain misgivings, stemming largely from the need to rely on evidence that involves much guesswork and recollection, the tribunal finds that it cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's disability is war-caused. The tribunal therefore finds that the veteran's disability is war-caused.
Conclusion
These findings mean that the applicant's claim for Disability Pension in respect of his MNP is to be granted. He already receives a pension at 100% of general rate. The matter is to be remitted for any reassessment that might be in order now that the applicant has an additional accepted disability.
Decision
The decision under review is set aside. In substitution the tribunal decides that:
The applicant's condition of malignant neoplasm of the prostate is a war-caused disability.
The matter is to be remitted to the respondent for any reassessment of the rate of pension payable in view of this additional accepted disability.
The date of effect of this decision is 24 December 1996.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDates of Hearing 14 May 2001 & 9 July 2001
Date of Decision 14 March 2002.
Counsel for the Applicant Mr Walker
Counsel for the Respondent Mr S Modder
2
5
0