King and Repatriation Commission
[2005] AATA 83
•25 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 83
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1426
VETERANS’ APPEALS DIVISION
Re: GRAEME MARTIN KING
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 25 January 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision under review.
(sgd) E. Fice
Member
VETERANS' AFFAIRS – veterans’ entitlements – whether condition war‑caused – expert evidence
Veterans’ Entitlements Act 1986 ss 5B, 6C, 6D, 9(1), 120, 120(1), 120A, 120A(3) 196B(2)
Repatriation Act 1920 s191(1)(b)
Statement of Principles Instrument Nº 84 of 1999
Statement of Principles Instrument Nº 85 of 2001
Statement of Principles Instrument Nº 69 of 2002
Statement of Principles Instrument Nº 36 of 2004
Repatriation Commission v Deledio (1998) 49 ALD 193
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Budworth (2001) 66 ALD 285
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 29 ALD 1
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
25 January 2005 Mr E. Fice, Member
1. On 12 December 2002, the Veterans’ Review Board ("the VRB") affirmed the decision of a delegate of the Repatriation Commission made on 19 September 2000 refusing to grant a disability pension to Mr King for malignant neoplasm of the prostate on the grounds that the condition was not war‑caused. The VRB also affirmed a decision by the delegate of the Repatriation Commission dated 15 February 2002 refusing to grant Mr King a disability pension for asthma on the grounds that the condition was not war‑caused. Mr King seeks review of both of those decisions.
2. Ms J. Bornstein of counsel appeared for Mr King and Mr E. Nyhoff and Mr K. Herman, both advocates of the Department of Veterans’ Affairs, appeared for the Repatriation Commission. In addition to the s 37 documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), the Tribunal had in evidence before it exhibits A1 – A11 for Mr King and exhibits R1 – R8 for the Repatriation Commission. The hearing of this matter took place on 28 July 2004 and on 21 and 22 October 2004.
BACKGROUND
3. Mr King served in the Royal Australian Navy (“RAN”) from 24 November 1958 to 1 January 1992. He had operational service as defined by s 6C and s 5B of the Veterans’ Entitlements Act 1986 (“the VE Act”) between 28 February 1962 and 16 March 1962 whilst serving on board HMAS Melbourne.
4. After joining the RAN and completing his basic training, Mr King undertook an airframe maintenance course at HMAS Albatross. Upon completion of that course, Mr King served with N°724 Squadron (Sea Venom Training Squadron) as part of the servicing/maintenance crew and he also undertook further training courses. His duties with N° 724 Squadron included conducting pre‑flight airframe inspections and the routine maintenance of aircraft. When flying operations were conducted, he was generally required to perform his duties for two flights in the morning and two flights in the afternoon. Also, when night flying took place, which was relatively frequently but not more than once in every four days, Mr King conducted his duties in the course of two additional night flights.
5. Mr King’s operational service on board HMAS Melbourne was his first at sea and his duties were essentially the same as those he had previously conducted with N° 724 Squadron.
6. HMAS Melbourne sailed from Sydney in late January 1962 for Singapore via Hobart and Fremantle. The ship departed Fremantle on 28 February 1962 for Singapore where it arrived on 8 March 1962. After three days in port, HMAS Melbourne sailed for Hong Kong on 12 March 1962, arriving on 16 March 1962. HMAS Melbourne was, when sailing from Fremantle to Hong Kong, part of the Far East Strategic Reserve, and accordingly that period of service is regarded as operational. Flying operations were conducted in the course of that sailing and night flying took place on 8, 13, 14 and 15 March 1962.
7. During night flying operations, it was common for those personnel involved to receive a night flying supper at the conclusion of those operations. According to Mr King, he started eating the fried, fatty foods and dairy products provided as night flying supper during his operational service on HMAS Melbourne.
8. Furthermore, Mr King claims he developed asthma as a consequence of his position on the flight deck of HMAS Melbourne during his operational service, where he was regularly exposed to the exhaust funnel fumes from the ship.
PARTIES’ CONTENTIONS
Malignant Neoplasm of the Prostate
9. Mr King contends that prior to joining the RAN, when he consumed most of his meals at home, his animal fat intake was minimal. It did not increase significantly until his period of operational service when he began to consume dairy products and fatty, fried meat products. During his period of operational service, Mr King claims that the vessel was “closed up” and aircraft were positioned on deck, ready for launch, if that became necessary. He was required to sleep on deck and to be at the ready. Having developed a taste for fatty meat products, Mr King claims that he continued with a diet that was high in animal fat for at least 20 years after his operational service.
10. The relevant Statement of Principles (SoP) developed by the Repatriation Medical Authority under s 196B(2) of the VE Act concerning malignant neoplasm of the prostate is set out in Instrument N° 84 of 1999 as amended by Instrument N°69 of 2002. The Repatriation Medical Authority is of the view that malignant neoplasm of the prostate can be related to relevant service of a member of the Forces provided that at least one of the factors, as set out in clause 5 of the SoP, is related to any relevant service rendered by the person. Mr King relied on factor 5(c), which provides:
5(c)increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;…
“Animal Fat” is defined in the amended SoP as follows:
…
“animal fat” means fat contained in or derived from:
(i) meat, other flesh or offal from animals (including birds but excluding seafood),
(ii) dairy products, or
(iii) eggs from birds;
…
11. The Repatriation Commission contends that an analysis of Mr King’s history of energy intake, activity level and body weight indicate an under‑reporting of energy intake in the period prior to operational service. Further, it contends that the operational period of service, being some 17 days in 1962, is too tenuous a causal connection to raise a reasonable hypothesis.
Asthma
12. Mr King initially submitted that he first developed symptoms of asthma when on board HMAS Melbourne during his period of operational service. He contends that because he spent much of that time on deck and downwind from the exhaust funnel of the ship, he was frequently forced to breathe fumes from the exhaust funnel. He claims that he has suffered an intermittent wheeze ever since his operational service. Further, Mr King contends that he did report breathing difficulties from time to time to the sick berth attendant during his operational service, although it was only in 1991 that asthma was diagnosed. At the conclusion of Mr King's case, Ms Bornstein submitted that the evidence raised two alternative hypotheses. First, she contended that the clinical onset of Mr King's asthma occurred during his childhood and that his operational service caused a clinical worsening of his condition. Secondly, she contended that although Mr King's asthma should have been diagnosed after he encountered breathing difficulties on operational service, there was no appropriate clinical management of his condition.
13. The Repatriation Medical Authority, pursuant to s 196B(2) of the VE Act, formulated a SoP concerning asthma, the relevant Instruments being N° 85 of 2001, and N° 36 of 2004 which is an amending Instrument. Instrument N° 36 of 2004 amends the definition of asthma as follows:
…
A.In paragraph 2, deleting sub-paragraph (b) and inserting in its place the following:
“(b)For the purposes of this Statement of Principles, “asthma” means a condition marked by increased responsiveness of the bronchi to various stimuli manifested by recurrent attacks of paroxysmal dyspnoea, with wheezing due to spasmodic contraction of the bronchi which characteristically responds rapidly to bronchodilators. The airflow obstruction may not be completely reversible. This definition includes chronic airway obstruction due to asthma, and reactive airways dysfunction syndrome.”
…
The amendment to the SoP concerning Asthma, as far as its definition is concerned, simply omits the words “and excludes asthmatic bronchitis”.
14. The Repatriation Medical Authority is of the view that asthma can be related to relevant service rendered by members of the Forces. At least one of the factors set out in clause 5 of the SoP must be related to any relevant service rendered by the person. Mr King relied on the factors set out in paragraphs 5(c), (d) and (f), which provide:
5. …
(a)…
(b)…
(c)for reactive airways dysfunction syndrome only, having an exposure to an agent as specified within the 24 hours before the clinical onset of asthma; or
(d)being exposed to an antigenic stimulus or non‑antigenic stimulus within the 24 hours before the clinical worsening of asthma; or
(e)…
(f)inability to obtain appropriate clinical management for asthma.
Reactive airways dysfunction syndrome is defined in the SoP for Asthma as follows:
… means an asthma-like condition satisfying the following criteria:
(a)a documented absence of preceding asthma or other ongoing bronchial disorders;
(b)onset of symptoms after a single exposure incident or accident; (c) exposure to a gas, smoke, fume, or vapour, with irritant properties, present in very high concentrations;
(d) onset of symptoms within 24 hours after the acute exposure, with persistence of symptoms for at least three months;
(e) symptoms simulate asthma;
(f) presence of reversible airflow obstruction on pulmonary function tests and/or the presence of non-specific bronchial hyperresponsiveness; and
(g) other pulmonary diseases ruled out;
…
The SoP defines "an exposure to an agent as specified" as follows:
…
“an exposure to an agent as specified" means an episode of exposure by inhalation of an irritant gas, smoke, fume or vapours that:
(a)has been reported in a peer reviewed medical or scientific publication to have caused reactive airways dysfunction syndrome, as defined; and
(b)resulted in acute toxic lower respiratory tract effects that warranted immediate treatment.
Non-antigenic stimulus is defined as "cold air, emotional stress, exercise, drugs (including beta blockers), respiratory infection or inhaled irritants such as ozone, sulphur dioxide, mustard gas, or smoke, including cigarette smoke".
15. The Repatriation Commission contends that Mr King’s circumstances do not satisfy the SoPs for asthma, as there was no evidence of a sustained clinical worsening of asthma as a result of exposure to smoke and fumes. Furthermore, it is contended that clinical notes show that the clinical onset of asthma was in 1991.
CONSIDERATIONS
16. Because Mr King has operational service, the standard of proof which must be established in order to determine whether Mr King’s diseases were war‑caused is set out in s 120 of the VE Act, which provides:
(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.
(2)…
(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.
…
17. Because Mr King’s claim was made on or after 1 June 1994, s 120A of the VE Act applies. In particular, s 120A(3) provides:
…
(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.
18. The steps which the Tribunal must follow, pursuant to s 120 and s 120A of the VE Act, in cases where a SoP exists, are set out in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 where the Full Court said:
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 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.
19. The correct approach in applying the steps set out in Deledio was clearly explained by his Honour Gray J in Mines v Repatriation Commission [2004] FCA 1331 in which his Honour followed the reasoning of the Full Court in Repatriation Commission v Cooke (1998) 52 ALD 1; Repatriation Commission v Budworth (2001) 66 ALD 285; and Benjamin v Repatriation Commission (2001) 70 ALD 622. He said (at para 37):
…
At the outset, one point needs to be understood. The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.
20. The Full Court in Benjamin (at 635‑636) said:
…
The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
Malignant Neoplasm of the Prostate
21. Mr King was diagnosed with cancer of the prostate in about July 2000. There is no dispute between the parties that Mr King suffers from prostate cancer. Furthermore, there is no argument between the parties and I am satisfied that Mr King rendered operational service as that term is defined in s 6D of the VE Act. The question then to be determined is whether the material points to a hypothesis connecting Mr King’s prostate cancer with his operational service.
22. Mr King joined the RAN at age 17. He gave evidence that as a child, his family lived in central Victoria where his father, amongst other things, was a share farmer. The family’s financial circumstances were quite difficult and Mr King recollected catching rabbits and fish which were frequently eaten by the family. He claimed that he consumed almost no milk as a child as he did not like it. He also disliked butter as his mother would make it at home and he found it repulsive. Mr King prepared a table setting out his typical food consumption over a one week period. Using a book known as Alan Boursheke’s Pocket Calorie and Fat Counter (the calorie counter), he calculated his average fat intake per day over a seven‑day period as being 55.7 grams. Mr King also prepared a table which dealt with his diet after joining the RAN but prior to his operational service. Again, applying the calorie counter, Mr King calculated that his average fat intake per day was 118 grams which represents an increase of some 62 grams per day or 112 per cent. Mr King then produced a third table which was based on what he claims to be a sample menu for the time he was on board HMAS Melbourne during his operational service. He calculated his average fat intake per day over a seven‑day period to be 271 grams, which is an increase of 129 per cent when compared with his diet when onshore and serving with the RAN. Mr King then produced a fourth table which represented his daily fat intake in the years after his operational service, until he retired from the RAN in January 1992. His fat intake for this period remained consistently high, averaging in excess of 250 grams per day.
23. Ms L. Schneider, an accredited practising dietician, who gave evidence on behalf of Mr King, also calculated Mr King’s fat intake over the relevant periods. Ms Schneider based her opinion on a history taken from Mr King regarding his dietary habits and she also said she thoroughly investigated the serving sizes of all items reported by Mr King. According to Ms Schneider, this analysis was conducted in Mr King’s home and it involved Mr King showing Ms Schneider the bowl/plate/cup sizes of foods and fluids he consumed during the different periods set out in his tables. Ms Schneider relied solely on Mr King’s memory of the types of foods and the size of the servings consumed over a period spanning in excess of 40 years. Ms Schneider availed herself of a computer analysis program called Food Works to assist her in her calculations. In her opinion, Mr King’s average daily fat intake during the relevant periods was as follows:
(a) pre RAN service 37 grams
(b) 1958 – 1962 RAN service 54 grams
(c) operational service on HMAS Melbourne 198 grams(d) March 1962 – January 1992 144 grams
24. Dr B. Wood, a consultant in food, nutrition and dietetics, also interviewed Mr King on behalf of the Repatriation Commission. Dr Wood made the point that it was not possible to traverse the large amount of detail required to determine the actual weight of food taken and when it was taken. Accordingly, she used standard food serving sizes for her calculation of daily fat intake. She also noted that professional opinions are more likely to vary, particularly where dietary patterns varied substantially over a long period of time. She also stated that the problem was compounded many times by the difficulty of accurate recall over several decades and that there will inevitably be errors in determining food serving sizes and the frequency in which food is consumed. She pointed out that methodological problems would not allow her to assign a degree of accuracy.
25. Mr King agreed that Dr Wood could use the dietary record he had already prepared for the various periods, even though those records did not provide food serving sizes or information on how often he missed meals. The material was used by Dr Wood to establish Mr King’s dietary pattern. Dr Wood calculated that Mr King’s animal fat intake, using the definition for animal fat as set out in the amended SoP Instrument N° 69 of 2002, to be as follows:
(a) pre RAN service 50 grams
(b) November 1958 – January 1962 98 grams
(c) operational service on HMAS Melbourne 202 grams(d) March 1962 – January 1992 168 grams
26. In summary, Mr King claims that during his period of operational service, his fat intake increased by 129 per cent to an average of 271 grams per day. Ms Schneider calculated an increase of 266 per cent to 198 grams per day, while Dr Wood calculated an increase of 106 per cent to 202 grams per day.
27. Although the variation between each of the above calculations is substantial, that does not make any hypothesis advanced on behalf of Mr King unreasonable. As the High Court said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 415: "Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable". It is plain that whichever calculation of Mr King’s animal fat intake is accepted, there is material before the Tribunal which points to the fact that consumption of animal fat during his period of operational service increased by at least 40 per cent and to at least 70 grams per day; and that level of animal fat consumption was maintained for a period of at least 20 years after operational service. Mr King’s hypothesis concerning his malignant neoplasm of the prostate fits the template found in the SoP and it must therefore be reasonable.
28. Accordingly, the question for me to decide is whether the Tribunal can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr King’s disease was war‑caused.
29. War‑caused, insofar as it is relevant, is defined in s 9(1) of the VE Act as follows:
9(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;
…
30. In the same way as the Full Court of the Federal Court in Repatriation Commission v Law (1980) 31 ALR 140 dealt with the meaning of the word “occurrence” when examining whether the smoking of cigarettes was an occurrence, it could not be said that the act of eating food is an “occurrence” within the meaning of that word as it appears in s 9(1)(a) of the VE Act.
31. The connection between Mr King’s disease and his operational service may be made if the disease arose out of, or was attributable to, his operational service. The two expressions “has arisen out of” and “is attributable to” were discussed at some length by the Full Court in Law. Although the Full Court in Law was dealing with s 191(1)(b) of the Repatriation Act 1920 (the Repatriation Act), the words used are sufficiently similar for the meaning given to them by the Full Court to be applicable to the current legislation. The only material difference is that, instead of using the words “arise out of” as does the VE Act, the Repatriation Act used the words “has arisen out of“, and instead of the words “was attributable to“, the Repatriation Act used the words “is attributable to“.
32. In dealing with the words “arising out of”, the Full Court said (at 150):
…
In s 101(1)(b) the words “arising out of” require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is 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.
The Act does not say death which is “caused by” or “results from” his war service — phrases which might connote a proximate causal relationship. The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.
33. When dealing with the words “Is attributable to” the Full Court said at 151:
…
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause…
Section 107VH(2) of the Repatriation Act required the Tribunal, where it was reviewing a decision refusing to set aside a claim or application for pension, to set aside the decision unless it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim or application. The words used in s 120(1) of the VE Act have exactly the same effect, although the VE Act refers to determinations made in respect of war‑caused injuries. In my opinion, it is therefore relevant to note what the Full Court said about the negative beyond reasonable doubt test imposed upon the Tribunal. At 152, the Full Court said:
…facts which might fulfil the conditions of eligibility, the decision against allowing the claim must be set aside unless those facts are negatived beyond reasonable doubt…
…The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable. It is not for this court or for the Tribunal to question whether this provision is excessively generous or to endeavour to read it down so that it does not have an operation beyond that which might be thought to be reasonable: the legislature has chosen its language and all that remains is to apply it.
34. Mr King said that life was harsh on the farm and that his father would sell milk and cream for cash. He generally had three meals per day at home. He only consumed a very small amount of milk because he said he did not like the taste. His mother made homemade butter which he found repulsive. There were chickens, cows and pigs on his father’s farm. He said that at Christmas time a chicken or pig might be slaughtered for consumption but he did not like to eat them. He tried bacon once but did not like it at all. The main drinks consumed were water, cordial and black tea with sugar. He conceded that he occasionally ate steak and possibly chops obtained from the local butcher. Cold meat was also eaten from time to time.
35. When Mr King left school at the age of 15, he worked in shearing sheds and did some labouring work on farms. No meals were provided by his employers and when he worked in the shearing sheds, he would take lunch with him and have his evening meal at home. At times when working as a labourer, accommodation was provided by the farmer but he had to provide his own meals which he described as generally coming from a tin of some description.
36. Mr King prepared a table setting out what he believed to be his typical diet during the period of time prior to joining the RAN. He calculated his average fat intake per day over a seven‑day menu to be 55.7 grams. Although Mr King’s table did not make reference to any beverages, he agreed in evidence that he did drink black tea which was the usual drink at meals and that he took his tea with sugar. He suggested he probably had three teaspoons of sugar per cup. On Mr King’s recollection, he would have up to five cups of tea per day.
37. In addition to calculating Mr King’s animal fat intake, Dr Wood also analysed Mr King’s total energy intake. She said that an under‑reporting of energy intake was a feature of her assessment of Mr King’s dietary intake for the period prior to joining the RAN and the following period immediately prior to his operational service. She also pointed out that because Mr King’s dietary pattern varied significantly depending on whether he was based on shore or at sea, the issue became even more complex.
38. Dr Wood calculated Mr King’s basal metabolic rate using what was referred to as the Schofield Equation which enables the basal metabolic rate to be estimated by reference to age, weight and sex. It is used to predict overall energy requirements. Dr Wood’s use of the Schofield Equation was criticised by Ms Schneider who explained that because the Schofield Equation was developed in 1985, it was not possible to assume that that equation could be used to predict Mr King’s energy requirements in 1958. In any event, Ms Schneider explained that the Schofield Equation is at best an estimate of basal metabolic rate. She explained that the only method of accurately estimating basal metabolic rate is to perform direct calorimetry which would require a subject to be monitored in an isolated room for a 24 hour period. She pointed out that this process would have to have been performed on Mr King at age 17 to accurately estimate his basal metabolic rate at that age. Be that as it may, Dr Wood said that if a person’s energy intake is below the basal metabolic rate for that person’s particular weight and age, the person would lose weight and, if that situation were allowed to continue, the person would die. She said, according to her estimate, Mr King’s fat intake prior to joining the RAN was about 50 grams per day and his total energy intake about 1460 calories. Therefore, Mr King must have consumed a further 1000 calories from somewhere. However, Dr Wood conceded that because she did not account for the consumption of carbohydrate foods such as sugar in drinks and alcohol, her calculations would be affected, although she maintained that not accounting for Mr King’s sugar intake alone, would not explain the discrepancy.
39. Taking into account the differences of opinion between Dr Wood and Ms Schneider, it is nevertheless apparent that even if Dr Wood’s calculations are only an estimate of Mr King’s basal metabolic rate, they disclose an activity factor of 0.78 for the period prior to joining the RAN and a figure of 1.37, for the period of operational service, from 26 January 1962 to 27 February 1962 which is indicative of a substantial underestimation of energy intake for those two periods. According to Dr Wood, a standard activity factor of 1.4 indicates a person whose activity could be described as “sedentary/maintenance”. A standard activity factor of 1.8 is indicative of moderate activity. Although Mr King said that during his period of time at HMAS Albatross, his activity levels could not be described as high, it is clear that on Dr Wood’s calculation, there was a substantial under‑reporting of Mr King’s energy intake up to 27 February 1962.
40. Mr King’s diet table after joining the RAN but prior to his operational service indicates a substantial increase in animal fat intake up to 118.3 grams per day. The most significant additional item on the menu is butter which he appeared to be consuming on a daily basis. This is despite the fact that, prior to joining the RAN, Mr King said he disliked butter. He explained that the reason for this was essentially peer pressure. He said that bread with butter was provided for afternoon tea and it was often a case of “take it or leave it”. He did mention that the choice of foods between the time of his enlistment and the time of operational service was relatively limited and it sometimes depended on whether he was early or late in attending at meal times. It sometimes meant that only the second or third choices were available. These were generally less desirable meals but were consumed due to lack of choice.
41. During his operational service, according to the table prepared by Mr King, his average fat intake per day over a seven‑day period was 271.8 grams. This is a 129 per cent increase in fat intake when compared with the period immediately preceding operational service. The most notable reason for the increase, according to Mr King's table, is the fact that he has included fried eggs and bacon or fried eggs and sausages for every breakfast, butter taken in the course of most meals and flying meals consumed on each day during the seventeen-day period of operational service. The records from HMAS Melbourne disclose that night flying was only conducted on one occasion, on 2 March 1962, on the journey between Fremantle and Singapore. HMAS Melbourne arrived at Singapore on 8 March 1962 and left Singapore on 12 March 1962, bound for Hong Kong. During the voyage between Singapore and Hong Kong, night flying operations were conducted on 13, 14 and 15 March 1962. The ship's records show that night flying occurred on only four occasions during the seventeen-day period of operational service. Mr King’s table regarding fat intake over that period must necessarily overstate his fat intake for that period.
42. It was pointed out to Ms Schneider that Mr King’s table for this period recorded night flying suppers on every day, even though night flying only took place on four days during the seventeen-day period of operational service. Ms Schneider said that even if one took the excess days out of the equation, her analysis was very similar to Dr Wood’s analysis for that period. By my calculation, if night flying suppers were removed entirely from Mr King’s table, his average fat intake per day over a seven‑day period would be 157.57 grams. That is an increase of 39 grams per day over the preceding period being an overall increase of 33%. If one were then to account for four night flying suppers over a period of two weeks, or an average of two per week, on the basis of 43 grams of fat per night per night flying supper, the average fat intake per day over the seven-day period would be 240 grams or an increase of 122 grams over the preceding period. This of course assumes that Mr King did not miss any meals and in fact consumed four meals plus a night flying meal per day as he stated.
43. Ms Schneider said in her evidence that constant exposure to certain foods, or not having certain foods, could cause dietary change very easily. She suggested that when Mr King was at sea, where he had no choice as to what foods he consumed, having those foods on a regular basis day after day could certainly cause a dietary change. Dr Wood agreed that the circumstances of Mr King’s operational service may have caused him to alter his dietary habits although she said that relating habit to consumption is an imprecise science and that the methodology is not yet available to draw firm conclusions.
44. There was evidence that Mr King’s weight did not alter significantly from the time he joined the RAN until he completed his operational service. His weight upon entry to the RAN was 68.2 kg and it rose to 70 kg by 1962. Dr Wood said that Mr King’s weight during that period could be regarded as stable. It was her opinion that weight can change noticeably on a daily basis if a person eats a lot but it can just as easily fall. She also said that it was unremarkable that Mr King’s weight did not alter during his operational service, not because the period was brief, but rather because his energy expenditure while at sea was probably high. She agreed that a number of factors can contribute to weight gain including, to a limited extent, genetic predisposition.
45. Dr Wood explained that she had taken dietary histories of thousands of persons over her 30 years of experience, but not where there was a lengthy history, such as in this case. She believed that it was not good practice to do so. Dr Wood said people find it difficult to recall their food intake and it is very hard to validate such a history. She confirmed that as far as Mr King’s case is concerned, the records probably disclose an order of things but not accuracy. I accept that statement as correct.
46. One of the important issues in this case is whether or not Mr King had a choice of foods which he could consume during operational service or whether, because of a limited selection, he had to consume high fat foods. There was no direct evidence available regarding the provisioning of HMAS Melbourne on the operational voyage. Mr King’s evidence was that the food which was available on HMAS Melbourne initially was very similar to the food available on shore. He said that the food remained similar for the majority of meals. However, shortly before the ship arrived in Singapore, foods such as salads or lettuce were no longer available because they did not store well. In that case, it could not be said that the available choice of food alone caused Mr King to consume increased quantities of fat during his operational period, although the types of foods available could be said to be relatively high in fat.
47. The Repatriation Commission tendered three reports prepared by Mr W. Rothwell, a retired RAN Captain. Amongst other documents, attached to those reports were statements made by Mr J.A. Crowley, a former RAN Commander who had served on HMAS Melbourne and Mr A. Naylor, a former RAN Chief Petty Officer cook. Although Mr Rothwell also gave oral evidence, Mr Crowley and Mr Naylor did not. Furthermore, neither Mr Crowley nor Mr Naylor was on board HMAS Melbourne during the voyage which constitutes Mr King's operational service. Ms Bornstein objected strongly to the inclusion of Mr Rothwell's reports and submitted that they should be given little or no weight. She submitted that as Mr Rothwell was not a historian nor was he qualified in any other discipline upon which some of his opinions rest and, therefore, his report is of no assistance. I do not totally agree with Ms Bornstein’s submission because Mr Rothwell had some personal knowledge of matters referred to in his reports. The documents attached to his reports which were obtained from Defence Archives are relevant and admissible. However, I accept Ms Bornstein's submissions in relation to Mr Rothwell's oral evidence regarding the types of foods that were available on board ship, where Mr King might have consumed his meals and what foods he might have eaten. I have given little weight to such opinions. .
48. Substantial evidence was presented regarding night flying suppers which were generally provided at the conclusion of night flying operations. Mr King said that prior to his first voyage on HMAS Melbourne, although he had been involved in night flying exercises when stationed at HMAS Albatross (which is a shore base), he generally did not avail himself of the night flying suppers because the squadron was situated about a kilometre away from the galley and there was often maintenance to be completed following the conduct of night flying operations.
49. Mr King said that, in the main, night flying suppers consisted of left overs from meals available during the day. Other than leftovers, Mr King could not recall the type of food that was provided for night flying meals. Despite that, in his table of food intake during his operational service on HMAS Melbourne, he listed a variety of different foods such as toasted cheese sandwiches, sausage rolls, bacon and egg sandwiches, hamburgers, meat pies, pasties, saveloys, chicken a la king and veal croquettes. Almost all of the foods set out in Mr King’s table, being a sample menu of foods provided for night flying meals on board HMAS Melbourne, are high in fat content. The same, of course, can be generally said about the other meals taken when on board HMAS Melbourne during operational service when compared with the foods consumed in the period immediately prior to his first voyage on HMAS Melbourne. Another food which Mr King consumed during flying operations was a hot chocolate drink which was called kai. According to Mr King, this drink was regularly consumed on board HMAS Melbourne during his operational service. He mentioned that when it was cold on the flight deck, the drink was highly appreciated by the aircraft maintenance crews. He said that he had not consumed kai previously.
50. Mr King suggested that his increase in fat intake during operational service could be attributed to the fact that food was more readily available when aircraft support crews were on standby on the flight deck. During those periods of standby, Mr King said that personnel would be sent down to the galley at frequent intervals to collect food or to make up sandwiches and bring them up to the flight deck for the crew that were on standby. He said that the type of food that was then consumed was “stuff that would be cooked in the deep fryer such as – what do they call those potato things? Chips, fried eggs and bacon sandwiches, cheese and toasted sandwiches, a stew type thing; that was generally the food that came up at the time, as well as – and continuous supply of kai”. He said that he had eaten all of the food that was offered.
51. Mr King also explained that HMAS Melbourne, which was not air conditioned, was frequently steered towards rain showers, not only for the purpose of cooling down the ship but also to aid airborne operations because rain showers produced extra wind across the flight deck, which assisted getting aircraft airborne. Mr W. E. Rothwell, who served with the RAN for 34 years and sailed on HMAS Melbourne on three occasions, although not at the time that Mr King was on board the ship during his operational service, gave evidence that the ship usually turned into wind in order to get the necessary wind speed over the deck in order to launch aircraft. He believed that speed was anywhere between 21 and 25 knots and that although the ship could achieve that speed under its own propulsion thereby creating the required level of headwind, it was generally turned into wind before flying. However, as for chasing rain squalls, Mr Rothwell said that in his opinion, he did not believe that happened nor was it necessary from the point of view of cooling the ship, even though he agreed that the ship was uncomfortable in the tropics. He mentioned that he was watch keeper on the ship for a number of years, on and off, and he could not recall the ship altering course for the purpose of cooling it down. He agreed that there might be a slight diversion towards a rain squall if it happened to be in close proximity to the ship when it had turned into wind. Mr King said that because of the rain squalls encountered, he often got wet and cold due to the wind speed over the deck. He said that as a result of being cold and wet his appetite increased and he thought that consuming food made him more alert and increased his wellbeing. However, the ship's log for the relevant period discloses that temperatures, even in the early hours of the morning, rarely dropped below 80 F and on average remained between 80 F and 85 F in the evenings up until midnight. Although I accept that there may have been some "wind chill" effect suffered by wet maintenance crews on the flight deck, I am of the view that Mr King has overstated its effect.
52. As for the passage between Singapore and Hong Kong, night flying operations occurred on three days only. The ship’s record of proceedings during that voyage indicates that a north‑easterly wind was blowing throughout most of the passage which was of great assistance for flying operations. According to Mr Rothwell, given that the course from Singapore to Hong Kong is roughly north, it means that the ship would have diverted very little from its intended course when flying operations were under way. It is therefore my opinion that it was even less likely that Mr King got cold and wet during this voyage.
53. In summary, Mr King's evidence does appear to misstate the true position in some instances. On balance, it appears he has understated his fat intake for the period prior to enlisting in the RAN. Although I believe Mr King attempted to give a fair account of the foods he consumed during the relevant periods, I accept Dr Wood's opinion that such an account would not be accurate and that recall about food intake over such a lengthy period of time would be poor. However, there can be little dispute about the fact that Mr King's diet did change while serving on HMAS Melbourne during his operational service and that it had a higher fat content than the food he consumed prior to his operational service. I also accept that Mr King found fatty foods tastier and that he associated those foods with the camaraderie of the group of sailors he worked with at that time. His overall increase in animal fat intake can also be attributed, at least to some degree, to the "standby" period on the flight deck when the galley remained open and food was frequently brought up to the flight deck. Therefore, although the evidence in this matter is anything but conclusive, there is some evidence which points to a real possibility that Mr King's prostate cancer may have arisen out of, or have been attributable to, his operational service. There is no dispute between the parties that the elevated animal fat consumption continued over the requisite 20 years prior to Mr King being diagnosed with prostate cancer.
Asthma
54. It is not disputed that Mr King suffers from asthma. This diagnosis was made by Dr M. D. Hurwitz on about 19 September 1991 when he concluded that Mr King is probably a mild asthmatic. In opening the applicant’s case, Ms Bornstein submitted that Mr King did not suffer from asthma prior to March 1962 when he was on operational service. In particular, she said that the applicant relied on factor 5(c) of the SoP concerning Asthma, namely, Instrument N° 85 of 2001.
55. Mr King said he first developed a wheeze on board HMAS Melbourne during the period when the ship was "closed up" on operational service, presumably in the course of sailing between Fremantle and Singapore. Mr King said that because his position on the deck during this period was downwind from the exhaust funnel, he was regularly exposed to its fumes which he could not avoid. He was unable to avoid breathing in exhaust fumes because the deck crew was required to be in position to launch aircraft at very short notice. Mr King said that he had breathing difficulties and that he approached a medical sailor who was on the flight deck and explained to him that he was having breathing problems. He was told that people on the deck breathing funnel fumes always suffered some discomfort and so Mr King did not report to the sick bay. There seems to be no dispute that funnel fumes can be the cause of reactive airways dysfunction syndrome. Dr T. H. L. Hart, Consultant Respiratory Physician, said in his statement of evidence that “it is certainly a well recognised clinical observation that exposure to exhaust fumes can be a temporary aggravating factor for asthmatic symptoms…”
56. There is therefore material before me which points to a hypothesis connecting Mr King’s asthma with the circumstances of his operational service. Furthermore, that hypothesis is reasonable as it satisfies the template established by factor 5(c) of the SoP.
57. Following the evidence given by Professor M. C. F. Pain, the possibility arose that Mr King had an undetected asthmatic condition in childhood. It was therefore submitted that there was evidence which pointed to factor 5(d) of the SoP for asthma being satisfied in that the applicant was exposed to an antigenic stimulus or non‑antigenic stimulus within the 24 hours before the clinical worsening of asthma Professor Pain relied in particular on Dr Hurwitz's statement and his findings that, as a child, Mr King had recurrent episodes of bronchitis which may have been asthma. Accordingly, in my opinion, there is material before me which fits the template established by factor 5(d) and therefore the hypothesis raised by Mr King is reasonable.
58. A further hypothesis was advanced on behalf of the applicant relying on factor 5(f). According to Mr King, he did not receive any treatment when he first complained of breathing difficulties on board HMAS Melbourne. Furthermore, shortly after the conclusion of his operational service, when HMAS Melbourne steamed from Hong Kong to Subic Bay in the Philippines, he again complained of breathing difficulties and wheezing and was hospitalised at Cubi Point for a period of two days. Mr King gave evidence that no specific diagnosis of asthma was made by the US medical personnel who treated him and no specific treatment was provided for asthma. There is no evidence which contradicts Mr King's account of this episode. Accordingly, the material before me does raise a reasonable hypothesis connecting Mr King’s asthma with the circumstances of his service, as described by factor 5(f) of the SoP.
59. The issue for me to determine is whether or not Mr King’s asthma was war‑caused as is defined under the VE Act.
60. Because Mr King was involved in flying operations on HMAS Melbourne, he spent considerable time on the flight deck stationed just aft of the island. The ship's funnel is situated through the rear of the island and, according to Mr King, it was inevitable that persons engaged in flight operations would breathe funnel fumes. That evidence is not disputed and, in fact, Mr Rothwell in his report of 16 March 2004 said: “exposure to funnel gas is a fact of life for all who go to sea in the RAN. We have all experienced it and it is not a pleasant sensation to breathe a good whiff of funnel gas”.
61. Mr King said that although flying operations were conducted on board HMAS Melbourne when the ship left Sydney to travel to Fremantle via Hobart and Adelaide, funnel gas was not such a problem as the ship was manoeuvring in order to position into wind, causing funnel fumes to travel rearwards in different directions at various times. Mr Rothwell confirmed that when the ship was steaming at 20 knots or more, whilst flying operations were underway, funnel gas travelled high above the flight deck and would disperse quickly. However, when the ship was not engaged in flying operations, Mr Rothwell said that the ship would slow down to between 10 and 15 knots and turn out of wind. In these conditions, funnel gas could travel downwind which would cause it to linger over the flight deck. He suggested that the ship's course was altered frequently and therefore one would not expect that situation to last for long. However, Mr King said that his problems arose as a consequence of spending lengthy periods on the flight deck when flying operations were not being conducted but flight crews were on standby. According to Mr King, the flight crews were positioned just aft of the island and were therefore exposed to funnel gas. Mr Rothwell said that between flying operations, it was very rare that aircraft would be parked aft of the funnel. However, a photograph of HMAS Melbourne, which was tendered, clearly shows three Skyhawk A4 Aircraft, the fighter aircraft which superseded the Sea Venom, parked directly behind the island. Overall, it is plain from the evidence that Mr King was exposed to funnel fumes in the course of his operational service. I also accept that during the periods of standby, Mr King’s exposure to funnel fumes was more frequent and quite probably more intense.
62. There seems to be no dispute about the fact that HMAS Melbourne used furnace fuel oil which was burnt to produce steam to drive ship’s main propulsion. Mr Rothwell has quoted a scientific review panel’s findings in the United States of America in April 1988 regarding the adverse health effects from exposure to diesel exhaust. There was no dispute that there can be adverse health effects from breathing funnel fumes which contain pollutants such as carbon monoxide, sulphur oxides, nitrogen oxides, volatile organics, alkenes, aromatic hydrocarbons and aldehydes, such as formaldehyde and 1,3‑Butadiene and low‑molecular weight polycyclic aromatic hydrocarbons and PAH‑derivatives.
63. Mr Rothwell also referred to a health and safety fact sheet issued by the American Federation of State and County Municipally Employees which states that “some of the adverse health effects which might result from the exposure to diesel exhaust gasses include irritation of the eyes, light headedness, feeling “high”, heart burn, headache, weakness, numbness, tingling in extremities, chest tightness, wheezing and vomiting”. It is said that those effects are for workers exposed to high concentrations of diesel exhaust.
64. There is evidence to support Mr King’s statement that during the period of his operational service, the crew were on standby or, in other words, the ship was in a “closed up" state. This is apparent from the report of proceedings for HMAS Melbourne compiled for the month of March 1962. One of the entries in that document states “dawn action stations were closed up at 0600 Tuesday 6th prior to entering Indonesian territorial waters and that the third degree of readiness was maintained until 0800 Wednesday 7th.” That is a period of 26 hours.
65. Although there are no medical records available, because they appear to have been lost or misplaced, it was Mr King’s evidence that he reported breathing difficulties and tightness of the chest to a medical sailor on the flight deck early in the morning during the first period that the ship was in a "closed up" state. Although there are no records of this report, there is also no evidence which contradicts that statement. Furthermore, Mr King said that shortly after the conclusion of his operational service when the ship sailed from Hong Kong to the Philippines, he was hospitalised at Cubi Point, spending a couple of days in a United States Navy hospital being kept in for observation because he was having breathing difficulties. He did not recall what, if any, diagnosis was made and there are, again, no medical records of this event. He is quite certain that he was not told that he had asthma nor did anybody tell him that he had asthma when he reported breathing difficulties on board HMAS Melbourne. He said that he was not told that he had asthma until 1991.
66. In his evidence in chief, Mr King was asked if he had previously experienced the type of symptoms he described on the first morning after the ship was "closed up". He said, “No, they were entirely different to the symptoms that you experience when you have got a heavy cold or a dose of the flu or whatever. This was quite a distinct difficulty in breathing and tightness of the chest”. He said that those symptoms have persisted on and off since the first incident.
67. As there is little, if any, dispute as to Mr King's account of the circumstances which lead to him suffering from his breathing problems, it is my opinion that there is cogent evidence which points to the fact that his asthma was caused by or can be attributed to his operational service. The evidence points to a consequential relationship between Mr King's operational service and the onset of asthma, thus meeting the test as established in Law's case.
68. Although, given my findings regarding Mr King’s asthma, it is not strictly necessary for me to examine the hypotheses raised under factors 5(d) and 5(f) of the SoP for Asthma, I will do so in the event that there is a challenge to my findings on this subject.
69. It was submitted on behalf of the applicant that there is evidence which points to the fact that Mr King suffered from asthma as a child which had not been diagnosed or which may have been misdiagnosed. This possibility was raised by Professor Pain when he said that it was possible that in the 1940s and 1950s, asthma tended to be under‑diagnosed in children and it was frequently diagnosed as recurrent bronchitis associated with cold. Particular reference was made to Dr Hurwitz’s report of 19 September 1991, when Mr King was first diagnosed with asthma. Dr Hurwitz said:
A further point of note is that in 1985 he had a previous simular episode and that as a child he had recurrent episodes of bronchitis which too may have been asthma. He in fact remembers them to be very simular to what he has just experienced.
Professor Pain said that he suspected that Mr King had an asthmatic predisposition and that the episode on board HMAS Melbourne appeared to be the first clinical episode of that disease. He also said that Mr King may have had some clinical episodes previously.
70. Mr King said that he could not recall telling Dr Hurwitz that he had recurrent episodes of bronchitis but rather said that his mother referred to his childhood problems as croup. Professor Pain, in cross‑examination, disagreed that croup was a disease which would now be called asthma. He described croup as common in children and being a transient event in the first twelve months of life. He said that most children who had bouts of croup did not go on to develop asthma. However, he agreed with Dr Hurwitz’s statement that the recurrent episodes of bronchitis were highly suggestive and may represent childhood asthma, but not croup. However, Mr King’s evidence was that the symptoms that he experienced on board HMAS Melbourne during his operational service were unlike any other symptoms he had previously experienced. That evidence, in my opinion, expressly excludes a finding that Mr King suffered from childhood asthma. As, according to Professor Pain, there is no test available to determine the date of onset in adults who are diagnosed with asthma, one would need to rely completely on the history given by the patient. Accordingly, I am satisfied beyond reasonable doubt that there is no sufficient ground for determining Mr King’s asthma was war‑caused as a consequence of being exposed to a non‑antigenic stimulus within 24 hours before the clinical worsening of asthma.
71. Finally, it was submitted that factor 5(f) provided an alternative hypothesis connecting Mr King’s asthma with his operational service. Ms Bornstein submitted that this hypothesis arose because Mr King did not receive the appropriate medication, advice about lifestyle or sensible medical direction for the clinical management of his asthma after he experienced breathing problems on his operational service. However, as Mr Herman submitted on behalf of the respondent that raises the question as to whether a diagnosis of asthma was open at that time.
72. Mr Herman referred to Professor Pain’s evidence where Professor Pain said that one would expect doctors, such as those that examined Mr King at the United States Naval hospital at Cubi Point, to have made that diagnosis if Mr King was exhibiting asthmatic symptoms. However, he also said that in between asthmatic episodes, he would excuse any doctor who missed the form of small airways disease that Mr King presented with. He also said that if the patient were symptom‑free at the time of examination and nevertheless gave the history that Mr King had given, the issue of asthma may not have surfaced.
73. Given that Mr King's clinical onset of asthma may have been in 1962, although it remained undiagnosed until 1991, the possibility does arise that his asthma was caused by or may be attributed to an inability to obtain appropriate clinical management for asthma. I am therefore of the view that Mr King does satisfy factor 5(f) of the SoP.
CONCLUSION
74. Although the evidence in this case, through no fault of either party, makes it difficult to arrive at any firm conclusions regarding Mr King's claims, and I have some doubts about the accuracy of Mr King's recall about a number of issues, I am assisted by what the Full Court had to say in Law's case. Provided there is some evidence that Mr King is entitled to receive a pension, a pension should be paid unless the evidence establishes beyond reasonable doubt that a pension is not payable.
75. There is some cogent evidence to support Mr King’s claims that his prostate cancer and his asthma are war‑caused. There is insufficient evidence under both claims to establish beyond reasonable doubt that both of Mr King's conditions were not war‑caused. It follows that in my opinion, Mr King is eligible for a pension as a result of both claimed conditions.
76. Therefore, the decisions of the Repatriation Commission made on 19 September 2000 in respect of Mr King's malignant neoplasm of the prostate and on 15 February 2002 in respect of his asthma must be set aside. The matter should be remitted to the Repatriation Commission for assessment of the pension to be paid to Mr King in accordance with s 19 of the VE Act.
I certify that the seventy-six [76] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E, Fice, Member
(sgd) Catherine Lake
ClerkDate/s of Hearing 28 July 2004, 21 October 2004 and 22 October 2004
Date of Decision 25 January 2005
Counsel for the Applicant Ms J. Bornstein
Solicitor for the Applicant: Williams Winter SolicitorsSolicitor for the Respondent Mr E. Nyhoff and Mr K. Herman, Advocacy Section,
Department of Veterans’ Affairs
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