Marie Martin and Repatriation Commission - [2012] AATA 744

[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 82
Repatriation 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 744
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the case of Marie Martin and Repatriation Commission, the widow, Mrs Martin, sought a war widow's pension on the basis that her husband's death from a Malignant Neoplasm of the Prostate was caused by his service in the Second World War. The Federal Court was asked to review the decision of the Social Security Appeals Tribunal (SSAT) which had dismissed her claim. The central legal issue before the court was whether a reasonable hypothesis could be raised that the veteran's service led to a change in diet, and a continuing high fat intake, which subsequently contributed to his prostate cancer and death.

The court examined the evidence presented, including expert testimonies from dieticians and nutritionists, Dr Volker and Dr Mann, who assessed Mr Martin's pre-service, service, and post-service diets. Both experts relied on estimates due to the lack of specific information from Mrs Martin about her husband's dietary habits. The court noted that while there was an increase in animal fat consumption by Mr Martin, the evidence was largely based on assumptions and estimates rather than concrete data. The court found that even if there was an increase in animal fat intake meeting the criteria of the Standard Operating Procedure, the connection to Mr Martin's operational service was tenuous and speculative.

The court concluded that the hypothesis connecting Mr Martin's service with any increase in his animal fat consumption was not reasonable. The evidence did not sufficiently establish a causal link between Mr Martin's service and his dietary changes, nor did it prove that these changes led to his prostate cancer. Therefore, the court affirmed the SSAT's decision to reject Mrs Martin's claim for a war widow's pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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%: Dr Mann assessed Mr Martin’s intake as follows and arrived at an overall increase of 28 gms per day, or 22.2%: 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1589
Re	Marie Martin
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey and Dr I Alexander
Date	29 October 2012
Place	Sydney