Manwaring and Repatriation Commission (Veterans' entitlements)
[2018] AATA 88
•30 January 2018
Manwaring and Repatriation Commission (Veterans' entitlements) [2018] AATA 88 (30 January 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2069
Re:Satsuko Manwaring
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:30 January 2018
Place:Brisbane
The Tribunal affirms the decision under review.
.............................[SGD]...........................................
Deputy President J Sosso
CATCHWORDS
VETERANS AFFAIRS – war widow’s pension – whether death of veteran was war caused – prostate cancer – claim that veteran’s service led to change in diet and to continuing high animal fat intake – relevant service – no evidence linking increased intake to operational service – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 of 2014
CASES
Starcevich v Repatriation Commission (1987) 76 ALR 449
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Deledio (1998) 83 FCR 82
Hill v Repatriation Commission (2005) 85 ALD 1
Dunlop v Repatriation Commission [2003] FCAFC 201
Collins v Repatriation Commission [2009] 177 FCR 280
Repatriation Commission v Codd [2007] 85 ALD 619
Bushell v Repatriation Commission (1992) 175 CLR 408
McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Hill (2002) 69 ALD 581
Ellis v Repatriation Commission (2014) 142 ALD 352
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Dunn [2006] FCA 1703
Mason and Repatriation Commission [2003] AATA 931
King v Repatriation Commission [2011] FCA 1436
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
Deputy President J Sosso
30 January 2018
INTRODUCTION
Mrs Satsuko Manwaring (the Applicant) seeks a review of a decision of the Veterans’ Review Board of 8 February 2017 which determined that the death of her husband, Mr William Manwaring (the veteran), was not related to his war service and that, accordingly, a war widow’s pension was not payable – Exhibit 1 T15 pp. 125 – 128. The Board upheld a decision of the Repatriation Commission (the Respondent) dated 4 July 2016 – Exhibit 1 T12 pp. 107-109.
Pursuant to s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) the Applicant is eligible to receive the war widow’s pension if the veteran died as a result of eligible war service. Section 8 of the Act prescribes what is a “war-caused death”. Relevantly, s 8 provides that the death of a veteran is taken to be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran” – s 8(1)(b).
The veteran was born in August 1921 in Gladstone, Queensland – Exhibit 1 T9 p. 83, T3 p. 11. He was the eldest of three sons, and his father passed away during World War II – Exhibit 1 T4 p. 23. Prior to enlisting on 7 January 1942, he was a labourer – Exhibit 1 T3 p. 11. The veteran served in the Australian Army from 7 January 1942 until 6 June 1946. He had operational service in World War II from 7 January 1942 until 27 March 1946 – Exhibit 1 T3 pp. 11 – 15.
The veteran was medically examined prior to discharge from the Army. The examination took place at Lae in Papua New Guinea on 29 January 1946. The veteran weighed 137 lb and his “disabilities” were listed as diarrhoea (November 1942), sprained left ankle (April 1943), appendicitis (September 1944), dengue fever (March 1945), haemorrhoids (September 1945) and dermatitis – Exhibit 1 T3 p. 17.
The veteran married the Applicant in 1960 in Tokyo, Japan when he was 39 years of age and some 14 years after his discharge – Exhibit 1 T11.1 p. 87. It would appear that the veteran met the Applicant while on a holiday to Japan, and that she did not know him before that time – Exhibit 1 T4 p. 23.
The veteran passed away on 18 February 2016. The causes of death as recorded in his Death Certificate are – Exhibit 1 T11.1 p. 87:
“1. Dissminated (sic) prostate cancer 2. Advanced dementia”.
The relevant Statement of Principles in this matter is No. 53 of 2014 – Malignant Neoplasm of the Prostate.
The Factor relied on by the Applicant is 6(c):
“The factor that must as a minimum 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 relevant service is:
(c) increasing animal fat consumption by at least 40 percent and to at least 50 grams per day, and maintaining these levels for at least five years within the 25 years before the clinical onset of malignant neoplasm of the prostate”.
“Animal fat” is defined in cl. 9 to mean fat contained in or derived from:
“(a) dairy products;
(b) eggs; or
(c) meat, other flesh or offal from animals (including birds but excluding seafood)”.
Section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) provides that if it appears to the Tribunal the issues for determination on review can be adequately determined in the absence of the parties, and the parties consent, a decision can be made “on the papers”. In this matter a hearing was not convened and a determination has been made in the absence of the parties. The Tribunal admitted into evidence and marked as Exhibit 1 the s 37 T Documents.
THE EVIDENCE
Family evidence
Unfortunately due to the death of the veteran some time ago, there is no direct evidence from him regarding his food habits prior to enlisting, whilst enlisted or subsequent to his return to civilian life in 1946.
As the Applicant only met the veteran and married him in 1960 she is not in a position to give first-hand evidence of his food consumption habits for the first 39 years of his life.
The Tribunal also was not presented with any historical first hand evidence from persons who knew the veteran or members of his family who would have observed his type and quantity of food he consumed in the period 1921 – 1960.
The Applicant appeared before, and gave evidence to, the Veteran’s Review Board on 8 February 2017. The Tribunal was provided a copy of the transcript of those proceedings. However, a perusal of the Transcript elicits no additional information about the veteran’s dietary habits. While the Applicant confirmed that she met her husband in 1960 (Transcript p. 4), there was no evidence given by her about his food habits. A perusal of the Transcript discloses that the proceedings were extremely short and dealt in a relatively brief manner with expert evidence which will be discussed below. In short, the Transcript provides little assistance to the Tribunal.
The Applicant did, however, complete a “Dietary Survey – (Widow) Malignant Neoplasm of the Prostate” form. This form is a document prepared by the Department of Veterans’ Affairs, and was completed by the Applicant on 28 September 2016 – Exhibit 1 T14.2 pp. 115 – 124.
The Applicant claimed that her husband’s pre-war diet was “much leaner in fat content” - p. 124. She stated that she produced most dinners during their married life as well as breakfasts and lunches – p.115. Included in the meals cooked were roasts twice weekly with roast vegetables served with gravy.
Most meals were cooked in butter, dripping, lard or vegetable oil. Condiments were regularly applied to meals, including tomato and Worcestershire sauce and gravy. In addition, the veteran had take-away meals 2-4 times each week, including meat pies and fish and chips. The veteran would consume cheerios/frankfurts, potato chips, fried pork sausages, fried lamb chops, fried bacon, lard and tinned soups 2-4 times each week – pp. 120-122.
Julie Gilbert – Dietitian
Ms Julie Gilbert was engaged by Legacy Brisbane to provide a dietary analysis on the amount of fat consumed by the veteran in his post-World War II diet. Ms Gilbert is an Accredited Practising Dietitian, and had in 2016 13 years’ experience in this field. She is also the owner of “Solutions with Food” and employs five dietitians to provide services to various hospitals, aged care facilities and 20 medical centres – Exhibit 1 T14.1 p.113.
Ms Gilbert made the following comments (p.113):
“I conducted a dietary assessment of the usual daily dietary intake of Mr William Manwaring, provided by his widow and her son. The diet history seems reasonable for a man of that era, that is, their diet was based around meat and vegetables, high in animal fats and full-fat dairy and home cooked meals. This type of diet has been recorded in the dietary survey provided. For example, it was recorded that Mr Manwaring consumed full cream milk instead of low fat milk and used butter instead of margarine. Many of the foods consumed were high in animal fat, for example meat pies, cheerios and sausages and the preferred cooking method was frying. Low fat food options were very rarely used if at all.
From the information provided, and using a nutritional data base to calculate the amount of animal fat consumed by Mr Manwaring. The conclusion reached is that Mr Manwaring (sic) dietary fat intake was 182.5 grams per day.”
Ms Gilbert attached to her report a “Dietary Analysis” – Exhibit 1 T14.1 p.114. Set out below is the information contained in that Analysis:
Food Item Fat (grams)
Butter – 16 teaspoons 65.6
Eggs – 2 whole egg, jumbo 67 g 11.7
Biscuits – 4 plain sweet, 50 g 7.8
Biscuits – 4 cream, 60 g 12.6
Chocolate – 4 squares, 25 g 7.4
Cocoa drink 3
Ice cream – 1 regular scoop, 50 g 5
Baked custard ½ cup, 141 g 6
Bread – 8 slices, white, 35g per slice 5.6
Cake – iced, 1 slice 80 g 12
Potatoes – chipped 5
Meat – 200 g, fat, pan, fried 26.9
Ham, slice, 30 g 5.4
Milk, full cream, 1 cup 250 ml 8.5
Total 182.5 g
Dr Ruth English AO
Dr English was commissioned by the Department of Veterans’ Affairs to analyse and report on the documentation available on the level of animal fat in the Australian diet in the period prior to 1939, during World War II (1939-1945), immediately thereafter and until the present day. The report is dated August 1998 – Exhibit 1 T5 pp. 25 – 73.
Dr English estimated (p. 26) that the total fat level of the civilian diet prior to World War II for an adult male was 130 – 149 g per day of which the animal fat component of this was estimated to be 114 – 130 g per day.
Service ration diets during World War II generally did not contain a higher level of animal fat than the civilian diet for an adult male. The rations for those serving in Australia had a lower fat content than the average civilian diet: 78.5 – 88.8%. The service ration for those in the Middle East was 96.2% of the civilian diet, while that for New Guinea and the Pacific Islands was 92.8%. The exception to this was the amended ration for New Guinea and the Pacific Islands which exceeded the civilian diet by 8%. Dr English opined (p. 34):
“Overall it can be concluded that there is no evidence from the analysis of civilian and service diets that the rations available to servicemen during the Second World War contained excessive amounts of animal fat compared with civilian diets.”
In the immediate post-war years, rationing remained in force resulting in reduced availability of certain animal fat foods. Rationing of meat continued until June 1948 and butter until June 1950. Conversely, there was an increase in the availability of milk and milk products. Dr English opined (pp.26-27) that: “total fat remained similar over the time period 1936/39 to 1946-47 buffered by the increase in milk and milk products and a considerable increase in the production and availability of margarine, of which coconut oil was the major component”.
The consumption of animal fat declined dramatically in the decades after 1950. The average intake of animal fat for adult Australian men decreased from an estimated 122 g per head per day in 1944, to 63.4 g in 1983 and to 56.8 g in 1995-1996. The average intake for older men of the World War II era decreased to 55.3 g in 1983 and 49.9 g in 1995-1996 – p.27. Dr English made these observations (p.27):
“The food intake data from 1983 and 1995-96 indicate that maintaining an intake of 70g animal-based fat a day from 1983 and also previous to this date (based on food availability data from the yearly ABS series apparent consumption of foodstuffs and nutrients), is inconsistent with food and nutrient intake patterns in the Australian community. Together with a reduction in total fat, the contribution of non-animal fats to total fat intake has been increasing since the early 1970s at the expense of the contribution of animal-based fats to total fat. Therefore it is concluded that it has become increasingly difficult to maintain a level of animal fat intake above 70g per day, because of major changes in the Australian diet. Maintaining this level would present particular difficulties for older men, because of their reduced energy requirements and lower intakes of food.”
THE LAW
It is important to note at the outset that the policy underpinning the Act (and the earlier applicable veteran’s legislation) is to deal fairly and generously with those Australians who have served their country and who have suffered physically or emotionally as a result of that service – s 119(1)(f) and (g). In Starcevich v Repatriation Commission (1987) 76 ALR 449 Fox J said (at 454):
“It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen.”
More recently Mortimer J in Forrester v Repatriation Commission [2013] FCA 898 (Forrester) made the following observations (at [19]):
“In its current form, the Act requires the decision-maker to undertake a process which Parliament intends to be beneficial to applicants: see Deledio v Repatriation Commission (1997) 47 ALD 261 at 262-263 per Heery J; East 16 FCR 517 at 518. It is not a process intended to put insuperable hurdles in the way of the veteran, while still ensuring that the requisite causal connection between the veteran’s war service and the disease, injury or death is established. The scheme imposes particular processes and standards of proof to establish the requisite connection, but the use of the double negative in s 120(3), combined with the imposition of the highest standard of satisfaction known to law, makes plain that the process of establishing that causal connection is intended to operate beneficially towards applicants’ claims.”
As previously stated, s 13 of the Act provides, inter alia, that when a veteran’s death is war-caused, the Commonwealth is liable to pay a pension to the dependants of the veteran. A death is “war-caused” if it arose out of, or was attributable to, any eligible war service rendered by the veteran – s 8(1). Importantly, the Act contains provisions facilitating proof of the relationship between death and war service.
Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service by the veteran, the Repatriation Commission shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.
Subsection 120(3) provides that in applying subsection (1) in respect of the death of a veteran, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service rendered by the veteran.
In addition, s 120A(3) provides that, for the purpose of s 120(3), a hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) that upholds the hypothesis.
The methodology to be adopted in reaching the decision mandated by ss 8, 13 and 120 as to whether a death is “war-caused” was explained by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) as follows (97-98):
“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 fining 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)…
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 the 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…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.”
As helpful as the Deledio methodology is, the Tribunal is not required to proceed step by step through the outlined process in a mechanistic manner; nor does the methodology have a life of its own and operate as substitute for compliance with the relevant provisions of the Act – Hill v Repatriation Commission (2005) 85 ALD 1 at 16-17, Dunlop v Repatriation Commission [2003] FCAFC 201 at [33].
Further, there are antecedent inquires required of the Tribunal before applying the Deledio methodology. Those antecedent inquiries were explained by Mansfield, Stone and Edmonds JJ in Collins v Repatriation Commission [2009] FCFAC 90; 177 FCR 280 (Collins) as follows ([18]/284-285):
“It is common ground that there are necessarily antecedent inquiries before applying ss120 and 120A as explained by the ‘Deledio principles’. They are:
1. whether the claimant was a veteran, or a dependant of a deceased veteran;
2. whether the veteran has suffered an injury or disease or has died…; and
3. the cause of death or the ‘kind of death’ of the veteran…
those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”
CONSIDERATION
Preliminary Issues
As explained in Collins it is necessary to deal with certain antecedent or threshold issues.
It is not contested that the Applicant is the widow of the veteran who rendered eligible war service during World War II in New Guinea.
It is also not contested that the veteran died on 18 February 2016, and that his Death Certificate lists the causes of death as prostate cancer and advanced dementia.
However, the cause of death for the purposes of ss 120 and 120A of the Act, requires an inquiry into the “kind of death” suffered by the veteran. The manner of approaching this issue was explained in Repatriation Commission v Codd [2007] FCA 877; 85 ALD 619.
In that matter, the Applicant was the widow of a veteran who served in the Australian Army from 1942 – 1946. In 1968, Mr Codd was killed when the truck he was driving was struck by a train at a level crossing. The Tribunal found that the ‘kind of death’ was death by road accident. This was despite the Tribunal finding that Mr Codd had a drinking problem, and the effects of alcohol consumption were likely to have impacted on his concentration and contributed to the fatal accident.
Gordon J made the following observations ([31], [35] – [36], [40]):
“31. The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context…
35. What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
36. The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that death was war-caused and that the cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal collision’.
…
40. In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.”
It is not disputed that the veteran’s ‘kind of death’ was malignant neoplasm of the prostate – Submissions of the Respondent dated 15 November 2017 (SR) para 55.1.
Deledio Methodology – First Step
The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3) of the Act. At this initial stage the Tribunal does not engage in a fact-finding exercise.
A helpful explanation of the task required of the Tribunal was provided by Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408. Their Honours said (413 – 414):
“…s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be opinion or fact. The purpose of sub-s (3)…is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material 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…”
In short the first step merely requires the Tribunal to be reasonably satisfied that the hypothesis has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied on – Forrester at [14]. Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption.
One case which helpfully illustrates the task required of the Tribunal is McLean v Repatriation Commission [2001] FCA 243 (McLean). The veteran in that case served in the RAAF in World War Two. He was killed in an accident in 1953 when he was struck by a rock whilst felling trees with two other men. It was contended that the veteran suffered from a bad back condition which arose from his war service which restricted his mobility and therefore contributed to his death.
In dealing with the first step of the Deledio methodology, Tamberlin J said ([23]-[24]):
“23. In relation to the existence of a hypothesis it should be borne in mind that the hypothesis sought to be raised need not be the sole possible scenario for the death, but it must be a possible explanation. It does not have to be the correct one on any balancing of evidence. The hypothesis raised must be examined to see whether it is in fact an available hypothesis on the whole of the material in the sense that it is pointed to or raised by the facts even if an assumption needs to be made. There must be facts which point to the hypothesis rather than leaving the matter at large or open. The existence of another inconsistent hypothesis or of inconsistent material does not necessarily mean that there is no available hypothesis.
24. As a matter of possibility, in my view, the material before the AAT considered as a whole is consistent with the circumstances advanced as a possible explanation or hypothesis as to what occurred. It is possible, for example, on the material that the veteran may have become aware of the falling rock but was unable to move sufficiently swiftly as a consequence of a back injury received during the war. The evidence of the applicant that the veteran did not suffer any problems with his back prior to the war, when considered together with other material as to the circumstances of the accident, in my view at least raises the hypothesis. To the extent that the AAT decided there was no hypothesis raised I consider that it erred in applying too high a standard in respect of what is a low threshold of proof.”
As Tamberlin J states, there is a low threshold at this stage. It is clearly open for the Tribunal to find that the material points to the hypothesis that the veteran cultivated a high animal fat diet during operational service in Papua New Guinea and maintained a high animal fat diet after returning to civilian life in Australia.
Second Step
The next step is to ascertain if there is an SoP in force that is relevant to the hypothesis raised.
There is an SoP in force for malignant neoplasm of the prostate, namely, Statement of Principles No 53. of 2014.
Accordingly, there is an SoP in force that applies to the hypothesis raised by the Applicant, and step two of the Deledio methodology has been addressed.
Third Step
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in the relevant SoP.
It will be seen that when applying the Deledio methodology the question of “reasonableness” arises at both step one and step three. The methodology requires the Tribunal to assess reasonableness from both a factual and a medical or scientific prism. This was helpfully explained by Mortimer J in Forrester as follows (at [32]):
“The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”
The jurisprudence on this area of law clearly establishes that it is not necessary for every element of a hypothesis to be supported by material before the Tribunal, but the material presented must include the essential elements of the hypothesis. This was neatly explained by the Full Federal Court in Repatriation Commission v Hill (2002) 69 ALD 581 as follows (at [55]):
“…a hypothesis connecting a disease and war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP…”
Further, as Gordon J in Ellis v Repatriation Commission (2014) 142 ALD 352 at 365/[63] pointed out:
“It is not open for the AAT to infer or assume that the essential elements of a hypothesis are met. Its task was and remains that described earlier – to determine whether the whole material raises a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.”
The Respondent submits (SR para 60) that Factor 6(c) requires the veteran to be:
(a)increasing animal fat consumption by at least 40% and to at least 50 grams per day; and
(b)maintaining these levels of animal fat consumption for at least 5 years; and
(c)within 25 years before the clinical onset of malignant neoplasm of the prostate.
The phrase “clinical onset” is not defined in the Act. However, in both Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission (2002) 125 FCR 331, the Federal Court endorsed a formulation made by the Tribunal in Robertson v Repatriation Commission (1998) 50 ALD 668 that a clinical onset of disease can occur either when:
(a)a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or
(b)a finding is made on investigation which is indicative to a doctor that the disease is present.
The veteran was diagnosed with prostate cancer in 2010 (Exhibit 1 T6 p. 78) and it is not contested that this date can be accepted at the time of the clinical onset for the purposes of the Statement of Principles.
Although not referred to in the Respondent’s submissions, there are a number of Federal Court decisions on the link between animal fat consumption and malignant neoplasm of the prostate. For present purposes, reference can be made to the decision of Nicholson J in Repatriation Commission v Dunn [2006] FCA 1703 (Dunn).
In that matter, as here, the veteran’s widow applied for a War Widow’s Pension. Her husband died from prostate cancer and she claimed it was war-caused because of the veteran’s consumption of animal fat. The hypothesis advanced was that operational service had led to an increased fat intake which was maintained after service, which, in turn led to malignant neoplasm of the prostate.
This was another matter where the Tribunal had the benefit of the evidence of Dr English, but in this instance her evidence was not in the realm of the general and historic, but was very specific to the circumstances of the matter before the Tribunal.
It is instructive to set out, at some length, the reasons advanced by Nicholson J, as they provide sound guidance to the Tribunal in its deliberations:
“44. The principal contention of the Commission on this issue is that there was no hypothesis relating to element (3) in the SoP. That is to the requirement of the 70gm/day being for at least 20 years before the clinical onset of the malignant neoplasm of the prostate. In particular it is said that there was no material before the Tribunal which pointed to Mr Dunn’s consumption of animal fat being different during his periods of operational service (other than on voyages to Korea during the second period of operational service) than during his non-eligible service. It contends there was no material before the Tribunal that Mr Dunn, rather than Mrs Dunn, bought, prepared or otherwise determined the amount of animal fat which was consumed by him after his marriage in 1955. Mr Dunn’s evidence to the VRB had been that he continued eating the same sort of diet post-service which he had consumed during operational service because he enjoyed it and they just carried on in that way until much later in life changing their diet when they realised it was not healthy. The Commission’s submission is that, given there was no expert evidence that fat had any addictive properties, the necessary causal relationship between Mr Dunn’s consumption of animal fat at the prescribed level for at least 20 years and his operational service had not been made out…
46. It is necessary to return to the precise words of 5(c) of the SoP. The opening words state the factors which must as a minimum exist before it can be said a reasonable hypothesis has been raised connecting the malignant prostate with the circumstances of the person’s death. The three circumstances in (c) have been set out above. The third factor is the duration of the consumption for the 20 year period preceding clinical onset. Of all three factors it was necessary in accordance with cl 4 of the SoP that they be related to relevant service. Step three in Deledio at 97 makes this apparent when it states ‘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…’ That is, the hypothesis could not be raised as reasonable in accordance with the SoP unless there was some material pointing to the connection between the 20 year post-operational service consumption being connected with the relevant service. As was the case in Byrnes at 569, the hypothesis is one of connection of the veteran’s condition with the circumstances of his service. If there is an assumed fact it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.”
The evidence presented to the Tribunal of the veteran’s dietary habits in general, and his eating habits prior to 1960 in particular, is scant.
In this matter:
(a)there is no evidence of the veteran’s life prior to his enlisting in 1942;
(b)the veteran’s dietary habits prior to enlistment are unknown;
(c)no direct evidence was presented of persons who knew the veteran prior to enlistment or during his operational service in New Guinea;
(d)the only evidence about the type of food the veteran may have eaten was in the very general report of Dr Ruth English;
(e)the only evidence germane to his operational service are various medical service documents which detail, in a very general way, his state of health at various times, but provide no information about his dietary habits;
(f)as a consequence, the Tribunal has no evidence before it of the veteran’s animal fat consumption during the course of his operational service;
(g)there is no evidence of the veteran’s dietary habits between March 1946, when he returned to civilian life, and 1960, when he married the Applicant;
(h)the only material before the Tribunal about the veteran’s dietary habits prior to his marriage comes from the Applicant who stated, in response to a question asking how the change in the veteran’s diet was related to his service, that “prewar was much leaner in fat content” – Exhibit 1 T14.2 p. 124;
(i)that statement of the Applicant is based, presumably, on what the veteran informed her, and related to events that transpired 20 years before they first met;
(j)Ms Gilbert’s estimate that the veteran was consuming 182.5 grams of animal fat each day is accepted, but it does not assist the Tribunal in determining whether that level of animal fat consumption was consistent over the years, nor does it provide a factual basis pointing to an increase in animal fat consumption related to the veteran’s operational service. In short, it provides a basis for presuming that the veteran, during his married life, was consuming a particular quantity of animal fat, but does not illuminate the veteran’s dietary habits prior to 1960, and, in particular, during his operational service.
The Respondent contends (SR at para 61.4) that in the absence of direct evidence of the veteran’s dietary habits prior to 1960, regard should be had to the report of Dr English as providing the most relevant and persuasive evidence before the Tribunal about animal fat consumption.
In support of this proposition the Respondent drew the Tribunal’s attention to Mason and Repatriation Commission [2003] AATA 931. The facts in Mason are in contrast to the evidentiary matrix before the Tribunal in the current matter. Mrs Mason, a widow, married her husband in 1948 two years after he returned to civilian life. Importantly Mrs Mason knew her husband’s family before she met him. She was introduced to the family in 1942 and stayed three nights a week at the Mason family home in Newcastle. Between 1943 and 1948 she ate the same meals as the Mason family. Accordingly, she was in a unique position to give direct evidence on the dietary habits of her future husband’s family over an extended period of time.
Her direct evidence about her husband’s animal fat consumption habits was at variance with the general figures in Dr English’s report. In coming to its conclusion, the Tribunal made the following helpful observations (at [113]):
“The Tribunal is of the view that the information provided by Mrs Mason as to Mr Mason’s diet is adequate to assess Mr Mason’s pre-service diet and should be preferred in this case to the figures provided by the national dietary survey. The Tribunal’s view is that there may be instances where a Tribunal will find it necessary to rely on the information provided by the survey, as the best source of information available for that period and where there is no other information available. The Tribunal is aware of cases where the national dietary survey has been used to provide a base line figure for pre-service animal fat content. However, the Tribunal notes that most of these have been cases where there is no information available as to the pre-service diet (Re Paint and Repatriation Commission [2000] AATA 709, Re Keenan and Repatriation Commission [2000] AATA 707; Re Collingwood and Repatriation Commission [2000] AATA 710) or where there has not been sufficient information provided as to the diet (Re Towle and Repatriation Commission [2000] AATA 70)…”
This matter is akin to those Tribunal decisions where there is no information available about the veteran’s pre-service diet, and, accordingly, regard can be had to the data in the national dietary survey.
The information in Dr English’s report discloses:
(a)The civilian consumption of animal fats during World War II was generally higher than that of service members, namely approximately 122 grams for civilians and 113.3 grams for service members in New Guinea, except for the amended ration diet of 131.8 grams;
(b)The pre-war animal fat consumption for adult males in Brisbane was approximately 128 grams;
(c)Working on the assumption that the veteran’s animal fat consumption was in the normal range, this would suggest that his consumption of animal fats decreased rather than increased whilst he was enlisted.
Some care, however, has to be taken in approaching the task required of the Tribunal. It is appropriate to refer to the observations of Cowdroy J in King v Repatriation Commission [2011] FCA 1436, which was also a prostate cancer animal fat decision. The Court had the benefit of very detailed information about the veteran’s animal fat consumption. That evidence disclosed that he consumed 77 g of animal fat prior to enlisting, 100.5 g during the first five years of service, 118 g while serving in Singapore and Malaysia and 119 g post service. The evidence therefore disclosed an increase in animal fat consumption of 54.5% from enlistment to post-enlistment. The Tribunal approached the task by comparing pre-operational animal fat consumption (100.5 g) to animal fat consumption during service (118 g), which was an increase of only 18%. Accordingly, the Tribunal found that clause 5(c) of the SoP then in force was not satisfied.
In rejecting this approach, Cowdroy J said:
“46. The correct application of the SoP proceeds in the following manner. Clause 5 sets out the factors that must ‘as a minimum exist before it can be said that a reasonable hypothesis has been raised’ connecting the applicant’s prostate cancer condition with his relevant service. Accordingly, the investigation must first be directed to the question whether any one or more of the several factors itemised in clause 5 of the SoP are satisfied or ‘raised’. Only when that inquiry has been determined in favour of a veteran, does the inquiry then shift to the threshold issue, namely whether that factor is related to service.
47. Significantly the factor contained in clause 5(c) of the SoP, upon which the claim was based and which is the only factor for consideration in these proceedings, does not specify that the 40% increase must be assessed only before and after the applicant’s operational service.
48. The Tribunal did not address the two stages independently resulting in the possibility that it conflated the process or did not pay sufficient regard to the very specific requirements of the SoP.
49. …the Tribunal was presented with evidence demonstrating that the applicant had increased his animal fat consumption by over 40% taking into account both his operational and non-operational service.
50. It follows that the Tribunal erred in failing to find that clause 5(c) was raised…
51. This conclusion is not the end of the inquiry that the Tribunal should have undertaken. The Tribunal should then have considered the second stage of the process, namely whether the factor contained in clause 5(c) was ‘related to’ the applicant’s relevant service…”
Proceeding on the basis of the data in Dr English’s report, the Tribunal assumes that the veteran’s animal fat consumption prior to service was 128 grams, during service was 113 grams and at some point late in his life reached, according to Ms Gilbert, 182.5 grams.
Can it be said that at some point the veteran increased his animal fat consumption from 128 grams (pre-service) to 182.5 grams, which is slightly more than 40% and maintained that level of animal fat consumption for at least five years within 25 years before clinical onset of prostate cancer (1985-2010)?
The evidence before the Tribunal is so scant and the links between the above propositions is held together by a gossamer thread of material. There is no evidence, for example, as to whether the animal fat level given by Ms Gilbert, was consistent over time, or, indeed, accurately reflected the dietary habits of the veteran in the 1985 – 2010 period. There is zero evidence that would support the proposition that the animal fat level of 182.5 grams was consistently maintained for at least five years between 1985 and 2010.
Consequently, it is not possible, based on the lack of evidence adduced, to satisfy the first stage of the inquiry, as explained by Cowdroy J above.
However, if the Tribunal is in error, consideration will be given as to addressing the requirement of cl. 5 of the SoP, namely whether the factor outlined in cl. 6(c) is “related to the relevant service rendered by the person”.
Subsection 196B(14) of the Act provides that a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
“(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or….
(d) it was contributed to in a material degree by, or was aggravated by, that service…
(f) if the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) But for the rendering of that service by the person; or
(ii) But for changes in the person’s environment consequent upon his or her having rendered that service…..”
The task required of the Tribunal was explained by Nicholson J in Dunn as set out above. As his Honour explained, the hypothesis could not be raised as reasonable in accordance with the SoP unless there is material pointing to the connection between the post-operational service consumption being connected with the relevant service.
Dealing with each of the circumstances outlined in s 196B(14):
(a)There is no evidence of any occurrence during the veteran’s operational service that influenced his eating habits;
(b)There is no evidence that any increased animal fat consumption arose out of, or was attributable to, that service;
(c)There is no evidence that the veteran’s increased consumption of animal fat was contributed to in a material degree or was aggravated by his operational service; and
(d)There is no evidence that but for rendering that service he would not have consumed the amount of animal fat he did in his later life.
Nicholson J provides specific guidance on how the Tribunal must approach the second stage (at [49]):
“Again the Commission contends that the Tribunal found that the hypothesis was reasonable without considering whether the material before it pointed to any of the required kinds of causal relationship…it was not open for it to be inferred that such consumption related to his consumption during operational service, in the absence of any evidence of relationship in that regard.”
In this matter the evidence is so brief that it is not possible for the Tribunal to either make an express finding of the necessary causal relationship or reach a conclusion based on inferences from the material presented.
Here there is no evidence of the veteran’s animal fat consumption until at least the time of his marriage in 1960, and from that time forward only some brief assistance from the calculations of Ms Gilbert, based on materials before her in 2016 and the recollections of the Applicant.
As was pointed out by the Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 372 in order for there to be a reasonable hypothesis, such hypothesis “must…be pointed to or supported, and not merely left open as a possibility”.
Unfortunately that is exactly what the evidentiary base presents in this matter. It does not provide a foundation for the conclusion that the hypothesis raised is a reasonable one. The Tribunal agrees with the Respondent’s submission (SR para 62) that the hypothesis is no more than a mere possibility or assertion.
The Tribunal is placed in a position where it must make a determination on the strength of the evidence presented. Clearly the veteran has served this nation in perilous times and served in arduous and difficult circumstances. It would appear that the veteran made no claims under the Act, led a productive life, raised a family and was an upstanding member of the community. It is particularly unfortunate, then, that the Applicant now without the support and companionship of her late husband, and experiencing declining health, is not able to receive the special assistance that would flow from the bestowal of the War Widow’s Pension.
However, the task presented is clear and straightforward. The focus of this Tribunal’s deliberations is relatively narrow and clinically focused.
The material presented does not meet the requirements of Statement of Principles No. 53 of 2014, in that the evidence, on the balance, does not satisfy the Tribunal that the veteran’s death by malignant neoplasm of the prostate was war-caused.
DECISION
The decision under review is affirmed.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Dated: 30 January 2018
Date of hearing: 18 December 2017 Hearing on the Papers
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