Kendall and Repatriation Commission

[2011] AATA 141

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 141

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3919

VETERANS’ APPEALS DIVISION		)
Re		Glenys Kendall

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

J W Constance, Deputy President

Dr R. McRae, Member

Date2 March 2011

PlaceMelbourne

Decision The Tribunal decides that the decision of the Veterans’ Review Board made 15 July 2008 is affirmed.

.....(sgd J W Constance)..........

Deputy President

VETERANS’ ENTITLEMENT ACT 1986 (Cth) – Entitlements – war widow’s pension – whether veteran’s death was war-caused – metastatic prostate cancer – Deledio test step 3 not met – decision affirmed

Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlement Act 1986 (Cth) ss 9, 120, 120A(3) and 120A(4)

Hardman v Repatriation Commission (2004) 82 ALD 433 at 445
Lees v Repatriation Commission [2002] FCAFC 398 at 16

Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615

Repatriation Commission v Deledio (1998) 83 FCR 82 at 97
Re Robertson and Repatriation Commission [1998] AATA 127, (AAT 12666, 2 March 1998)

REASONS FOR DECISION

2 March 2011	J W Constance, Deputy President
Dr R. McRae, Member

INTRODUCTION

1.      Mrs Kendall is the widow of the late Mr Kendall who died on 6 July 2004.  From 1941 until late 1946 Mr Kendall rendered operational service as a member of the Australian Army.

2.      In 2004 Mrs Kendall claimed benefits under the Veterans’ Entitlement Act 1986 (Cth) on the basis that her late husband’s death was ‘war-caused’. The Repatriation Commission rejected this claim and on 15 July 2008 the Veterans’ Review Board affirmed the Commission’s decision.  Mrs Kendall has now applied to the Tribunal to review the Board’s decision.

3.      For the reasons which follow the decision under review will be affirmed.

Material Before The Tribunal

Mrs Kendall’s evidence

4.      Mrs Kendall told the Tribunal that she met her late husband in 1950 and that they were married in 1957.  She did not know Mr Kendall prior to his operational service.  She was told by family members that his family was very poor and consequently Mr Kendall's diet consisted largely of home-grown vegetables and poultry.  Red meat, cream, cheese and milk were not readily available.  Mrs Kendall understands that Mr Kendall acquired a taste for meat, butter and cheese during his service and she said that he preferred to eat these foods after they were married.

5.      Mrs Kendall received training as a nutritionist as part of her career as a teacher and was conscious of their diet.  She said that Mr Kendall insisted on eating large portions of meat and dairy foods at every meal.  This eating pattern continued for the whole of their life together although he did reduce the quantity of food he consumed after he retired in 1976.

6.      Mrs Kendall described Mr Kendall as a “slender man most of his life who looked after himself”.  He was conscious of his weight and would take steps to negate any weight gain.[1] At various times during their marriage he worked as a truck driver, in an ordinance factory and with the railways.

Statement of Mr Ralph Michell [2]

[1] Transcript 16/12/10.

[2] Ex.A3.

7.      Mr Michell stated that he and his family lived near Mr Kendall's family and that he knew Mr Kendall almost all of his life; they attended primary school together.  The Kendall family was very poor following the death of Mr Kendall's father when Mr Kendall was 9 or 10 years old.  Mr Michell kept in contact with Mr Kendall until Mr Kendall joined the Army in 1939.  Prior to his enlistment Mr Kendall worked as labourer and as a eucalyptus cutter.

Report of Dr Liz Delbridge[3]

[3] Ex.A2.

8.      Dr Delbridge is a Doctor of Philosophy, a Master of Public Health and a Master of Nutrition and Dietetics.  She provided a report on the food intake of the late Mr Kendall and its potential relationship with his operational service.  When preparing her report Dr Delbridge had available to her Mrs Kendall's statement and Samples of Prepared Meal Summaries for Mr Kendall prepared by Mrs Kendall.  These summaries covered the period from the early 1960’s until 1985.

9.      In her report Dr Delbridge concluded:

Based on the evidence provided, Mr Kendall’s animal (saturated) fat intake did increase to at least 50gm/day for a five year period post-service (1960-1977) within the 25 years before the clinical onset of malignant neoplasm of the prostate.   The information provided does not allow quantification of Mr Kendall’s pre-service diet.  However, the available information does allow a qualitative assessment, from which the conclusion can be drawn that his diet contained less than 40g/day saturated fat, therefore increased his saturated fat intake by a least 40% and to at least 50g/day.

Evidence of Dr Delbridge

10.     In giving evidence Dr Delbridge said that the estimated fat intake of Mr Kendall prior to his operational service of 8-15 gms per day was “very, very low”[4] for an Australian male at that time.  However Dr Delbridge said that she believed that because of the nature of his employment and his riding of a bicycle to and from work, Mr Kendall's energy requirements at the time were “extra high”.

[4] Transcript 16/12/10

Other material

11.     We have before us also the following documents:

· documents filed by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     medical records relating to Mr Kendall kept by the Barnard Street Clinic in Bendigo;

·     clinical notes relating to Mr Kendall kept by Bendigo Health;

·     medical report dated 4 June 2009 by Professor J F Cade.

12.     The letter dated 11 April 2002 from Mr Mitchell to Dr MacDonald refers to a suspicion of malignancy upon examination[5].  The letter of 17 June 2002 from Mr Lindsay to Mr Mitchell[6] indicates that by that date the diagnosis of “moderately differentiated Prostate Cancer” had been confirmed.

Legislative Background

[5] Ex.R1 p.65.

[6] Ex.R1 p.64.

War-caused injury

13.     Section 9 of the Act sets out the circumstances in which an injury is taken to be “war-caused”.  The relevant parts of that section are:

“9     War‑caused injuries or diseases

(1)Subject to this section and section 9A, 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;

(b)     the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”

Standard of proof

14.     Section 120 relevantly provides:

“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.

(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)     a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)     the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”

Reasonable hypothesis and a Statement of Principles

15.     Subsection 120A(3) provides:

“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.”

Applying The Law

16.     In Repatriation Commission v Deledio[7] the Full Court of the  Federal Court set out the steps to be taken in determining claims which arise from operational service such as this,:

“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 a SoP [Statement of Principles] 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 a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.     The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a 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.”

[7] (1998) 83 FCR 82 at 97

Issues For Determination

17.     The issues we have to determine are:

1)Did Mr Kendall render ”operational service” and if so, when?

2)Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr Kendall?

3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

4)If such an hypothesis is raised, is there a relevant Statement of Principles in force?

5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?

6)If so, are we satisfied beyond a reasonable doubt that the death of the late Mr Kendall was not war-caused?

DETERMINATION OF THE ISSUES

Did Mr Kendall render operational service and if so, when?

18.     The Commission has conceded that Mr Kendall rendered operational service from 17 December 1941 until 20 December 1946.  We are satisfied that this is a proper concession.

What was the kind of death met by Mr Kendall?

19.     The parties agree that the cause of death was metastatic prostate cancer, being one of the causes of death recorded on the death certificate.  We are satisfied that this agreement is appropriate and that this was the kind of death in accordance with the Act.

Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

20.     In past matters the Tribunal has adopted the following definition of “hypothesis”  from The Concise Oxford Dictionary:

“a proposition made as basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts”.[8]

[8] Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615.

21.     In deciding this issue we must consider all the material, not only that which supports the hypothesis: Hardman v Repatriation Commission[9].

[9] (2004) 82 ALD 433 at 445

22.     Taking into account all the material before us we determine that the material does point to a hypothesis which connects Mr Kendall's death with the circumstances of his operational service.  In view of the fact that Dr Delbridge was asked to report in relation to a particular Statement of Principles, this hypothesis is very specific.  The hypothesis, as propounded on behalf of Mrs Kendall, is that:

·by reason of his family’s impecuniosity, prior to his operational service, Mr Kendall's diet was such that he consumed as little as 40g of saturated fat per day;

·during operational service Mr Kendall developed a liking for foods high in saturated fat, being foods contained in the service diet;

·after his period of operational service Mr Kendall continued to consume a diet which was higher in saturated fat than that which he had consumed prior to his operational service;

·between 1978 and 1985 Mr Kendall's intake of saturated fat was between 10.33 g and 21.73 g per day;

·Mr Kendall was diagnosed as suffering from metastatic prostate cancer in 2002, by which time widespread metastases were evident in a bone scan indicating that cancer of the prostate had commenced at an earlier time;

·a diet high in saturated fat is a known cause of prostate cancer.

23.     There is nothing in the material before us that prevents the determination of the hypothesis set out above.

Is there a relevant Statement of Principles in force?

24.     There is no dispute that Instrument No. 28 of 2005 “Malignant Neoplasm of the Prostate” is in force and relates to the cause of the death of Mr Kendall.

Is the hypothesis consistent with the template within the Statement of Principles and therefore a reasonable one?

25.     The Statement of Principles provides that at least one of a number of factors must exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the prostate with the circumstances of a person’s operational service.  The only relevant factor in this case is in paragraph 5(c) which provides:

“increasing animal fat consumption by at least 40% and to at least 50 gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate…”

26.     In paragraph 8 of the Statement of Principles “animal fat”  means:

“fat contained in or derived from:

a)meat, other flesh or offal from animals (including birds but excluding seafood);

b)dairy products; or

c)eggs from birds”..

27.     The meaning of “clinical onset” as used in the Statements of Principles was considered by the Tribunal in  Re Robertson and Repatriation Commission[10]:

“…… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present ……”.

[10] [1998] AATA 127, (AAT 12666, 2 March 1998)

The above approach was approved by the Full Court of the Federal Court in Lees v Repatriation Commission[11].

[11] [2002] FCAFC 398 at16.

28.     The material to which we have already referred points to the clinical onset of the disease being in the first half of 2002.[12]

[12] Ex.R1 p.64.

29.     The hypothesis advanced on behalf of Mrs Kendall is consistent with the template in that there is material pointing to a conclusion that Mr Kendall increased his consumption of animal fat by at least 40% and to at least 50 gm/day.  However the hypothesis is inconsistent with the template in that there is no material before us to support a conclusion that this level of consumption was maintained “for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate”.

30.     The only material relating to the maintenance of the required level of consumption is in the report of Dr Delbridge.  This indicates that whilst Mr Kendall’s fat intake was 55.7+/- 9.7 gm/day from late 1960 onwards, it dropped to 16.03 +/- 5.70 gm/day in the period 1978-1985 reflecting his decreased energy requirements in retirement.  This is inconsistent with the requirement of the template in the Statement of Principles that the high level of fat intake be maintained for a period of at least five years in “the twenty-five years before the clinical onset” of the disease, being the period 1977-2002.

31.     As the hypothesis fails to fit within the template the hypothesis is not reasonable and Mrs Kendall’s claim must fail.

DECISION

32.     The decision of the Veterans’ Review Board made 15 July 2008 is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of
J W Constance, Deputy President

Dr R McRae, Member

Signed:         ......(sgd K Peterson)...............
  K. Peterson, Associate

Date of Hearing  16 December 2010

Date of Decision  2 March 2011
Solicitor for the Applicant          Mr D De Marchi
For the Respondent                  Ms J McCulloch, departmental advocate