King v Repatriation Commission
[2011] AATA 251
•15 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 251
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4845
Veterans' Appeals DIVISION ) Re Colin King Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr Ion Alexander, MemberDate15 April 2011
PlaceSydney
Decision The decision under review is affirmed.
..................[sgd]............................
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – prostate cancer – erectile dysfunction – claim that veteran’s service led to change in diet and to continuing high fat intake – relevant service – no evidence linking increased intake to operational service – decision under review affirmed
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408 and 414
East v Repatriation Commission (1987) 16 FCR 517; Bull v Repatriation Commission [2001] FCA 1832
Bull v Repatriation Commission [2001] FCA 1832; (2002) 66 ALD 271
Repatriation Commission v Hill [2002] FCAFC 192
Roncevich v Repatriation Commission [2005] HCA 40
REASONS FOR DECISION
15 April 2011 SM Jill Toohey Background
1. Mr Colin King enlisted in the Royal Australian Air Force in January 1950 and served until February 1961. He had operational service in Malaya from October 1955 to August 1957, and in the Far East Strategic Reserve from September 1957 to May 1958.
2. Mr King is now aged 77. He has a number of disabilities which the Repatriation Commission (the Commission) accepts are war-caused. In August 2007, he was diagnosed with prostate cancer. He contends that, as a result of his operational service, he developed a liking for foods with a high fat content that lasted all his life and which led in turn to his prostate cancer.
3. Mr King seeks review of a decision made by the Commission, and affirmed by the Veterans Review Board (the Board) on 14 September 2009, that his prostate cancer and consequent erectile dysfunction are not war-caused.
4. It is not in dispute that Mr King has prostate cancer and erectile dysfunction, or that his erectile dysfunction is directly attributable to the radiotherapy he underwent to treat his prostate cancer. There is no evidence before the Tribunal about the actual date of clinical onset of the prostate cancer but nothing turns on this.
The issue
5. We have to determine whether Mr King’s prostate cancer is related to his service. This requires us to determine:
(i)whether Mr King increased his consumption of animal fat to the degree required in order to satisfy the relevant Statement of Principles (SOP); and
(ii)if so, whether his increased consumption is related to his service.
The law
6. By s 120(1) of the Act, we must determine that Mr King’s prostate cancer and erectile dysfunction were war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting his conditions with his service: s 120(3).
7. Whether a reasonable hypothesis is reasonable is assessed by reference to SOPs issued by the Repatriation Medical Authority from time to time: s 120A.
8. The steps to be followed in determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must:
(i)determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant SOP;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SOP; and
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s incapacity did not arise from a war-caused injury.
9. The material will raise a reasonable hypothesis if it points to “some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”: Bushell v Repatriation Commission (1992) 175 CLR 408 and 414.
10. A hypothesis will not be reasonable if it is “obviously fanciful or impossible or not tenable or too remote or too tenuous”. It does not follow, merely because a hypothesis has none of these characteristics, that it is reasonable: the material must point to the connecting hypothesis: East v Repatriation Commission (1987) 16 FCR 517; Bull v Repatriation Commission [2001] FCA 1832 at [13].
11. In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120 (4).
Statements of principles
12. The SOPs set out the factors, at least one of which must exist and must be related to the veteran’s service, before it can be said that a reasonable hypothesis has been raised connecting a condition or conditions with the veteran’s relevant service.
13. Mr King relies on the following SOPs:
Malignant neoplasm of the prostate: SOP No 28 of 2005
Factor 5(c)increasing animal fat consumption by at least 40% and to at least 50gm/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;
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.
Erectile dysfunction: SOP No 17 pf 2005
Factor 5(j) undergoing a course of therapeutic radiation to the lower
abdomen, pelvis, penis or perineal region within the fifteen years immediately before the clinical onset of erectile dysfunction;
Factor 5(w) having a malignant neoplasm of the reproductive organs at the
time of the clinical onset of erectile dysfunction;
Mr King’s evidence
14. There is no dispute as to the facts as claimed by Mr King.
15. Mr King lived at home on his parents’ rural property until he enlisted at the age of 15. Rationing was in force and their diet was fairly simple; they had meat once or twice a week. From 1950 to 1955, Mr King lived on bases in Australia and ate the regular meals served to RAAF personnel.
16. For the first year of his operational service, Mr King lived on the base at Royal Air Force Tengah where he was served meals in the RAF mess. The RAF meals were more interesting and varied than he was used to, but also fattier; fat was not trimmed from the meat, eggs were “dripping” with fat, and there were regularly second and third helpings. He also developed a preference for dessert with every meal, especially ice cream.
17. In October 1956, thirteen months into his operational service, Mr King married. His wife was serving in the Women’s Royal Army Cops in Tanglin barracks in Singapore when they met. After their marriage, they lived off base but his diet was much the same as at the RAF base. He continued having fatty meals; he would eat meat every night and always had ice cream. This appears to have been largely due to the fact that his wife was English and had always cooked that sort of food. His diet has remained this way ever since.
Evidence of Dr David Mann
18. Dr David Mann, a dietician with 30 years experience, saw Mr King and prepared a detailed written report about his diet prior to enlisting, while serving in Australia, while on operational service, and post-service. Based on Mr King’s account of his diet over the years, Dr Mann estimated his average daily intake of animal fat at various points. He subjected his estimates to the validation process required by the Tribunal and they are not in dispute (see: AAT President O’Connor, 10 September 1999).
19. Dr Mann concluded that Mr King’s average daily intake of animal fat was as follows:
Prior to service: 77 gms
For the first five years of service (in Australia): 100.5 gms
In Singapore: 118gms
Post service: 119 gms20. Dr Mann concluded that, when compared with his pre-service intake, Mr King increased his intake of animal fat from 77 gms to 119 gms per day, or 54.5%. His intake from the period of his service in Australia to post-service was 19%.
21. Dr Mann gave evidence that the link between on-service consumption of animal fat and post-service intake is “extremely tenuous”, even where there is an increase, because there are numerous factors that determine the consumption of animal fat. To imply that brief exposure to animal fat intake during service can lead to a lifetime of changed habits and increase of animal fat is “highly speculative”. Moreover, in his experience, most people tend to have an inherent desire for sweet foods and a general liking for fried foods.
22. Dr Mann compared Mr King’s height and weight at each of the stages for which he measured his intake of animal fat. On enlistment, when Mr King was 16 years old, he was 150 centimetres tall and weighed 44 kilograms. When he returned to Australia in 1958, he was 165 centimetres and weighed 66.8 kilograms. On discharge, in February 1961, when he was 27 years old, he was 166 centimetres tall and weighed 65 kilograms. Dr Mann gave evidence that these changes were consistent with typical growth patterns in boys generally.
Does the material conform with the SOP
23. For a hypothesis to be reasonable, there must be material before the Tribunal that raises all of the essential elements in the relevant SOP: Repatriation Commission v Hill [2002] FCAFC 192. In this case, there must be material pointing to an increase in intake of animal fat by the specified amount, over the specified period, and related to Mr King’s relevant service.
24. Relevant service for the purposes of the SOP means:
(a)operational service under the VEA; or
(b) peacekeeping service under the VEA; or
(c) hazardous service under the VEA; or
(d) warlike service under the MRCA; or(e) non-warlike service under the MRCA.
25. Any increase contended for must be measured by reference to some point. For Mr King, it is contended that the relevant comparison is between his intake prior to enlisting and his intake post service. Based on these points of comparison, it is submitted that the material points to an increase of at least 40%.
26. It is true that Dr Mann’s evidence establishes an increase of 54.5% over the period contended for. However, the difficulty with this contention is that it ignores the period of five years service immediately prior to Mr King’s operational service. The evidence is that, in that period, his intake had already increased to an average 100.5gms per day. The subsequent increase during his operational service was approximately 18%.
27. We do not accept the approach contended for. In our view, the only sensible approach is to consider what change, if any, occurred once he started undertaking operational service. It cannot sensibly be contended that his operational service had a retrospective causal effect.
28. Even if we accept that it is not necessary to measure the increase from the period immediately prior to operational service, the other difficulty with this contention is that selecting the period pre-service is entirely arbitrary; the comparison might just as validly be made with a time when Mr King was a very young child.
29. Alternatively, it is contended for Mr King that the increase might be measured by reference to the period following his operational service. In principle, there can be no objection to this approach but the difficulty for Mr King is that the evidence points to an increase of, at most, less than 1% following his operational service. There is no evidence, and no suggestion, that his intake of animal fat increased by any more at any later time.
30. Even if the correct approach is to compare Mr King’s increase in animal fat intake pre- and post-service, we are not satisfied that the material points to it being materially related to his operational service.
31. Mr King’s evidence was that conditions at home, prior to enlisting, were modest. By comparison, service afforded a change from rations and a better diet generally at the same time that he was maturing. He spent only a year living on the base in Singapore, after which he lived off base with his wife. The evidence is that she was English and had always cooked food similar to that at the RAF base, and there is no evidence that her cooking changed over time.
32. Dr Mann’s evidence is that links between a period of service and life long dietary habits are tenuous and highly speculative and, on the material before us, any link between Mr King’s service and his lifelong preference for fatty foods and ice cream is also tenuous at best.
33. For a hypothesis linking a condition to service to be reasonable, there must be a causal, and not merely temporal, connection to service: Roncevich v Repatriation Commission [2005] HCA 40. We are not satisfied that the material before us points to more than a temporal connection between Mr King’s increased intake of animal fat and his operational service.
34. We are satisfied that the whole of the material before us does not raise a reasonable hypothesis connecting Mr King’s prostate cancer with his operational service. We are satisfied, beyond reasonable doubt, that there is no sufficient ground for finding that Mr King’s prostate cancer is war-caused. As a determination that his erectile dysfunction is war-caused relies on finding that his prostate cancer is war-caused, that claim also must fail.
35. We affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of SM Jill Toohey and Dr I Alexander.
Signed: ...............[sgd]................................................................
Diana Weston, AssociateDate/s of Hearing 12 April 2011
Date of Decision 15 April 2011
Counsel for the Applicant Mr S Feredoes
Solicitor for the Applicant Mr A Kemp, Kemp & Co.
Solicitor for the Respondent Mr N Bunn, Department of Veteran's Affairs
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