Marie Martin and Repatriation Commission
[2012] AATA 744
•29 October 2012
[2012] AATA 744
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1589
Re
Marie Martin
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr I Alexander
Date 29 October 2012 Place Sydney The Tribunal affirms the decision under review.
............[sgd]............................................................
Senior Member J F Toohey and Dr I Alexander
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – Malignant Neoplasm of the Prostate – whether veteran’s service led to change in diet and to continuing high fat intake – no reasonable hypothesis raised – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 13, 120, 120A, 196B(14)
CASES
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Glanville [2010] FCA 405
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles No 28 of 2005 concerning Malignant Neoplasm of the Prostate
REASONS FOR DECISION
Senior Member J F Toohey and Dr I Alexander
29 October 2012
BACKGROUND
Mr Joseph Martin served in the Royal Australian Air Force between 1941 and 1946, including for three months on Noemfoor in the South West Pacific. He died in August 2007 at the age of 88. His death certificate listed his cause of death as “Metastatic prostrate carcinoma, 6 years”.
Mr Martin’s widow, Mrs Marie Martin, claims a war widow’s pension. She contends that, as a result of his operational service, her husband developed a lifelong preference for foods with a high animal fat content which led to his prostate cancer and, in turn, to his death.
The Repatriation Commission (the Commission) does not dispute that Mr Martin died of prostate cancer, the clinical onset of which occurred in 2001, but denies that it was causally related to his operational service.
THE ISSUE
We have to determine whether Mr Martin’s death from prostate cancer was related to his operational service.
LEGISLATIVE FRAMEWORK
The whole of Mr Martin’s service is recognised as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
By s 13 of the Act, Mrs Martin will be entitled to a pension if her husband’s death was “war-caused” as defined by s 8.
As Mrs Martin’s claim arises out of her husband’s operational service, the question of whether his death was “war-caused” must be assessed according to the “reasonable hypothesis” standard of proof set out in ss 120 and 120A of the Act. In effect, we must determine that Mr Martin’s prostate cancer was 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 condition with his service.
A reasonable hypothesis connecting a veteran’s death with his or her service will be reasonable only if there is in force a Statement of Principles (SOP) that upholds the hypothesis: s 120A(3).
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 the material before it points to a hypothesis connecting the death 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 then
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s death was not war-caused.
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 at 414.
STATEMENT OF PRINCIPLES
Mrs Martin relies on SOP No 28 of 2005 concerning Malignant Neoplasm of the Prostate. At least one of the factors in clause 5 of the SOP must be related to the relevant service rendered by Mr Martin: cl 4.
The relevant factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Mr Martin’s death from malignant neoplasm of the prostate with the circumstances of his service is in clause 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.
By s 196B(14) of the Act, a factor causing, or contributing to, an injury or disease is related to service rendered by a person if:
(a)…
(b)it arose out of, or was attributable to, that service; or
(c)…
(d)it was contributed to in a material degree by, or was aggravated by, that service;
(e)…
(f)in 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 Commission contends, firstly, that the 40% increase and 50 grams per day requirements of the SOP are not met to the requisite standard and, secondly, that there is no evidence pointing to any connection between Mr Martin’s operational service and any increase in animal fat consumption.
MRS MARTIN’S EVIDENCE
Mrs Martin provided two written statements and gave oral evidence by telephone. Her first written statement concerned her husband’s smoking and drinking habits. Her second statement concerned his dietary habits. In it she stated:
2My husband spoke very little about the foods he ate on service. The main story he told me was to do with the fact that around Christmas time one year he was flying with the Americans. He told me that he was served apple pie with cheese on it. I recall him saying that he put the pie his mouth [sic] thinking the cheese was cream. Since he already had it in his mouth he couldn't spit it out as that would have been rude, and so he had to eat it. He said that that was probably the only time he ever had cheese, and he didn't have it again afterwards because he didn't enjoy it.
3I also recall him telling me that he enjoyed the fact that during this Christmas he spent with the American forces he got to have some turkey. He said that he only had turkey once in the five years he served and that he was lucky to have had it. He continued liking turkey all the years afterwards.
4My husband was definitely what you would call a primarily meat eating man. He was not a big fruit or vegetable eater. He liked a lot of meats and in those days it was not common to grill meat and everything was pan fried. While now when you roast meat it does not require any fat over it, it was a regular thing back then.
5When we had bacon we didn't throw the fat away. I recall seeing him dip his bread in the fat and mopping the fat up with it whenever we had bacon.
6While my husband did not have huge meals he was a very good eater and ate frequent meals of normal serving sizes. I would have a similar size meal to his.
7I did all the cooking, however my husband told me what he liked and I cooked it.
Giving evidence before the Tribunal, Mrs Martin said her husband did not really talk about the war, and she had “no idea” what he ate during the war years. Although she was not specifically asked, she offered no information about what his diet was, or might have been, before she met him in 1941. She gave evidence that she knew about the cheese and apple pie story and that Mr Martin did not like cheese, but she could not remember what the story was behind his dislike for it. Whatever the reason, she said he would not touch cheese “under any circumstances” although she wondered if he actually knew what cheese was because he once ate a sauce she made, apparently without realising it contained cheese.
By completing questionnaires provided by Dr Volker and Dr Mann, Mrs Martin was able to provide information about Mr Martin’s post-service diet.
Mrs Martin also gave evidence that her husband worked as a bank manager all his life and they moved to different locations from time to time. In about 1956, Mr Martin contracted polio and was off work for a couple of years. Up until that time, he had been very active; he played A-grade tennis and was an A-grade runner. After his illness he could no longer play tennis or golf but he played bowls and would walk.
EVIDENCE OF DR VOLKER AND DR MANN
Dr Dianne Volker and Dr David Mann, both of whom are dieticians and nutritionists, provided written assessments of Mr Martin’s pre-service, service and post-service diets.
Dr Volker and Dr Mann gave oral evidence concurrently before the Tribunal. A good deal of time at the hearing was devoted to evidence about the different methodologies each employed in making their assessments. Given the lack of any information from Mrs Martin about her husband’s pre-service or on-service diets, both relied on information about rations estimates at the relevant times.
Dr Volker and Dr Mann agreed that, as Mrs Martin could not give any information about Mr Martin’s dietary habits prior to his service, it was appropriate to assess his pre-service dietary intake by reference to The Australian National Survey of Domestic Food Budgets for the period 1936 to 1938. On that basis, they assessed his per-service intake of animal fat as 126 gms per day.
Factor 5(c) of the SOP requires an increase in animal fat consumption of at least 40% and to at least 50 gms per day over the relevant period.
Dr Volker assessed Mr Martin’s intake of animal fat at different times as follows and arrived at an overall increase of 54 gms per day, or 43%:
Pre-service (1933-1941)
126 gms per day
On service (1941-1946) 127 gms per day Post-service (1976-1980) 180 gms per day
Dr Mann assessed Mr Martin’s intake as follows and arrived at an overall increase of 28 gms per day, or 22.2%:
Pre-service
126 gms per day
April 1941-Nov 1941 (Australia) 107.7 gms per day Nov 1944-Feb 1945 (Noemfoor) 132.5 gms per day Feb 1945-Jan 1946 (Australia) 107.7 gms per day Post-service 154 gms per day
After lengthy discussion of the relative merits of their methodologies, Dr Volker and Dr Mann agreed that there was little real difference in their on-service estimates, and that their principal point of difference was in Mr Martin’s post-service intake. That difference was explained by a combination of their different methodologies, different validation processes, some difference in the information Mrs Martin gave them about what Mr Martin ate post-service, and in the way each counted what he ate. Even then they agreed that the measure of the difference between them was roughly equivalent to one sausage per day.
As to the relationship between any increase and Mr Martin’s operational service, Dr Mann gave evidence that he could not see any relationship between what Mr Martin was eating later in life and his operational service. In his view, any link between on-service consumption of animal fat and post-service intake is “extremely tenuous”, even if the levels in the SOP are met, because of the numerous factors that determine fat intake, and to attribute a lifetime of increased intake to brief exposure during service is “highly speculative”.
In her report, Dr Volker recorded that Mrs Martin said her husband liked his meat cooked by dry heat as opposed to the moist heat methods to cook dishes like stews generally used by the services, and Mrs Martin assumed his food preferences were a result of the food preferences he developed during his service. Later in her report, Dr Volker stated:
[Mrs Martin] has been able to support the evidence that [her husband] changed his diet after demobilisation and that these food preferences were maintained until 1976 to 1980 at least. Her late husband’s during service animal fat intake estimate demonstrated an increase in animal fat compared with his pre-service diet. Thus it can be said that [his] death can be related to his war service.
Asked about the evidence referred to, Dr Volker agreed that Mrs Martin reported her assumptions only. She clarified that, in fact, Mrs Martin said only that her husband liked meat.
DOES THE MATERIAL POINT TO A HYPOTHESIS CONNECTING MR MARTIN’S DEATH WITH HIS SERVICE?
The hypothesis advanced for Mrs Martin is that, as a result of his operational service, in particular the meals he was served, her husband’s consumption of animal fat increased to such a degree, and was maintained over such period of time, that it led to his prostate cancer and, ultimately, to his death.
No question of fact finding arises at this stage of the process: Deledio (above) at 97.
As can be seen, Mrs Martin was unable to provide any information about her husband’s diet before service, and little more about his diet during service. However, she was able to provide Dr Volker and Dr Mann with information about Mr Martin’s diet post-service.
Dr Volker and Dr Mann gave lengthy oral evidence about their differing methodologies for calculating Mr Martin’s consumption of animal fat at different periods. However, although they arrived at different conclusions, they agreed that, were they to apply the same methodologies, their conclusions would vary, but not to any significant degree. The real difference between them lies in whether any connection can be established between Mr Martin’s increase in animal fat intake and his operational service.
Whether Dr Volker and Dr Martin are correct as to any increase in Mr Martin’s consumption of animal fat, and whether either of them is able in fact to establish a connection between any increased consumption and his operational service, is not to the point at this stage. By Dr Volker’s assessment, Mr Martin’s intake of animal fat increased to the requisite degree and over the relevant period. Although Dr Mann disagrees with her, the extent of their disagreement is – as they put it – one sausage.
In Dr Volker’s expert opinion, there is reason to believe that the increase in Mr Martin’s animal fat intake was attributable to his operational service. Plainly, assumption plays a large part in that belief.
However, although the material is slight and based largely on assumption, we do not think it cannot be said there is no material pointing to the hypothesis advanced for Mrs Martin (see Repatriation Commission v Glanville [2010] FCA 405 at [58-59]).
In our view, there is some material pointing to an increase in Mr Martin’s consumption of animal fat to the requisite degree throughout the relevant period, and to a connection with his operational service.
IS A REASONABLE HYPOTHESIS RAISED CONNECTING MR KING’S PROSTATE CANCER WITH HIS OPERATIONAL SERVICE?
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities: East v Repatriation Commission (1987) 16 FCR 517 at 533.
A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey (1997) 79 FCR 364; nor is an assumption sufficient to make a hypothesis reasonable: Byrnes v Repatriation Commission (1993) 177 CLR 564.
Nor is a reasonable hypothesis one that is merely plausible. It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832 at [5].
A hypothesis will not be reasonable if it is “is obviously fanciful or impossible or not tenable or too remote or too tenuous”: East (above) at 532. That said, it does not follow, merely because a hypothesis is “not obviously fanciful or not possible, or not incredible or tenable or not too remote or not too tenuous”, that it is reasonable: see Bull (above) at [5]
In our view, the elements of the hypothesis are raised so slightly by the material that it cannot be said to be reasonable. There is no evidence of Mr Martin’s actual pre-service or on-service intake of animal fat. Mrs Martin said quite frankly that she had no idea about either. The material before the Tribunal is based entirely on estimates. That is not to say the estimates are themselves unreliable; they are based on statistical and other information from recognised government and other sources. However, as a basis for estimating whether, and if so how much, Mr Martin’s intake increased, they raise no more than a possibility.
Although Dr Volker concluded in her report that Mr Martin’s rations would have provided “a very much increased level of animal fat” and he ate differently from his family “following the food preferences that he developed during war service”, her conclusion is based on assumptions as to the level of his intake and the causal connection to his service.
There is no evidence that Mr Martin developed a dislike for “moist foods” because of his service. There is no evidence about whether it was a pre-existing preference or not. Although Dr Volker said that it was Mrs Martin’s assumption that this dislike was because of his service, that does not appear in Mrs Martin’s evidence. It appears it was actually Dr Volker’s assumption.
Even if we thought that a reasonable hypothesis was raised in relation to the factor 5(c) element of the hypothesis, any causal connection to Mr Martin’s service is based on assumptions and speculation and is, in our opinion, too tenuous.
CONCLUSION
For these reasons we have formed the opinion that the hypothesis connecting Mr Martin’s service with any increase in his animal fat consumption is not reasonable. It follows that Mr Martin’s death was not war-caused and, regrettably, that Mrs Martin’s claim must fail.
We affirm the decision under review.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr I Alexander. .......[sgd].................................................................
Associate
Dated 29 October 2012
Date(s) of hearing 24 July 2012 Counsel for the Applicant Mr S Feredoes Solicitors for the Applicant Kemp & Co Lawyers Solicitors for the Respondent Mr T O'Reilly, Department of Veterans' Affairs Advocacy Section
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