Marrinan and Repatriation Commission
[2005] AATA 1272
•21 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1272
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/614
VETERANS’ APPEALS DIVISION ) Re JOAN CECILY MARRINAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date21 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for widows pension.
.................SIGNED.............................
D.W. MULLER
DEPUTY RESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat.
Veterans’ Entitlements Act 1986: ss5C, 7, 8, 13, 120, 120A, 120B, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1.Joan Cecily Marrinan, the applicant, now deceased, claimed a widows’ pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the VEA).
2.She claimed that her late husband, Desmond Joseph Marrinan, died from the effects of a war-caused disease, namely, prostate cancer.
3.The elements of her claim are:
(a)Desmond Joseph Marrinan died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr Marrinan was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is an accepted cause of prostate cancer.
(d)Mr. Marrinan’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed when he served in the Royal Australian Air Force (RAAF).
(e)The food that he had become accustomed to eating during his years in the RAAF was higher in animal fat content than his pre-service diet.
(f)Thus, Mr Marrinan’s death from prostate cancer was related to his RAAF service.
4.Mrs Marrinan’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5.The Veterans Review Board (VRB) affirmed the Respondent’s decision.
6.Mrs. Marrinan sought a review of that decision.
Legislative Framework
7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11. Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12. Section 120(3) provides that 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, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis.
14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.
Necessary Elements of Hypothesis
15. In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the RAAF, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.
16. If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.
17. In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or 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% 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.
Other definitions
8. For the purposes of this Statement of Principles:
“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.”
Material Placed Before the Tribunal
18. The following matters are not in dispute and the Tribunal finds:
(a)Desmond Joseph Marrinan was born in Rockhampton, Queensland on 17 February 1925.
(b)He enlisted in the Royal Australian Air Force (RAAF) on 15 June 1944. He was discharged on 8 February 1946. During this period he did not serve outside the mainland of Australia and he did not serve in the Northern Territory, north of parallel 14.5o south latitude in World War II. This period is eligible service under the VEA, but not operational service.
(c)He enlisted in the Interim Air Force on 21 January 1947 and transferred to the RAAF on 21 September 1948. He was discharged on 20 September 1970.
(d)During his second period in the RAAF he rendered eligible service from 21 January 1947 to 20 September 1948, and he rendered operational service in Malaya from 6 April 1951 to 15 May 1952.
(e)He married Joan Cecily Marrinan on 16 January 1954. (They were both in the RAAF).
(f)He was diagnosed with prostate cancer on 18 May 1993.
(g)He died on 3 March 1996. The cause of death was Renal failure – weeks, and Prostate Carcinoma – years.
(h)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19.This claim is concerned with the diet of Mr. Marrinan before, during and after he rendered operational service for the 12 months he was in Malaya from 6 April 1951 to 15 May 1952. That is, did he increase his animal fat intake after his service in Malaya, compared to his intake prior to his service in Malaya, and if so, did that increase arise out of, or was it attributable to, that service.
20.The material relating to Mr. Marrinan and his diet came from the following sources:
(a)A statement made by Joan Cecily Marrinan on 13 July 2001. She had no knowledge of what her husband ate prior to meeting him in 1954, other than she knew that he ate at the RAAF Base Mess.
(b)A statement made by Suzanne Margaret Marrinan (daughter born on 4 March 1955), made on 11 March 2005. Ms. Marrinan lived with her parents until she left home in 1985.
(c)Statements made by Joan Cecily Marrinan and Suzanne Margaret Marrinan to Ms. Linda Kilworth (nutritionist).
21. The material revealed the following:
(a)There is no evidence about what Mr. Marrinan ate prior to 15 June 1944. According to Dr. English, nutritionist, a national household food and nutrition survey of Australians in 1944 suggested that the average intake of animal fat for adult male civilians was 129gms per day.
(b)There is no evidence about what Mr. Marrinan ate while he was in the RAAF between 15 June 1944 and 8 February 1946. Presumably he ate at a RAAF Base in Australia for that two year period.
(c)There is no evidence about what Mr. Marrinan ate while he was a civilian between February 1946 and January 1947.
(d)There is no evidence about what Mr. Marrinan ate prior to going to Malaya in April 1951. Presumably he ate at a RAAF Base in Australia from January 1947 to April 1951.
(e)There is no specific evidence about what Mr. Marrinan ate while he was on operational service in Malaya. Presumably he ate at the RAAF Base Mess at Tengah where he was stationed.
(f)There is no specific evidence about what Mr. Marrinan ate on his return to Australia from Malaya. Mrs. Marrinan said that when she first met her husband he was eating at the RAAF Base Mess.
(g)Mr. Marrinan’s daughter said that her father often remarked about how good the food was in the Sergeants’ Mess. He said that there was a wide variety of food of whatever you wanted to eat. He used to enjoy eating breakfast at the Mess. He said that he could get kidneys, lambs fry, bacon, tripe and fried eggs.
(h)After his marriage to Mrs. Marrinan in 1954, Mr. Marrinan typically ate the following food:
· Each morning for breakfast Mr. Marrinan would have cereal with full cream milk. He would also have a hot breakfast which consisted of two fried eggs and either two sausages and one rasher of bacon, or two rashers of bacon with lambs fry. This was always fried in a pan with dripping. He would also have two slices of toast spread thickly with butter.
· For morning tea Mr. Marrinan would eat two cream biscuits and have a cup of coffee with milk and sugar.
· For lunch Mr. Marrinan would have a hot meal which would be a mixed grill of either chops or sausages and some kidney or brains or other meats. He would eat large portions. Alternatively he would eat a roast dinner such as lamb or beef and the vegetables would be done in a pan with dripping.
· After lunch he would have a bowl of ice cream or a slice of pie with custard or cream.
· For afternoon tea Mr. Marrinan would typically have a small carton of flavoured milk with a couple of biscuits.
· For dinner each night he had a large meal. This would normally be a stew or casserole containing meat or a home made meat pie with vegetables. Sometimes however they would have a large steak with salad.
· Vegetables were boiled with butter added to them and milk was also added to mash potatoes.
· Normally they would have sweets after dinner which would either be ice-cream or banana custard or creamed rice.
· Mr. Marrinan would dollop butter and spread it thickly on bread and over vegetables.
(i)Ms. Marrinan believes that her father played rugby as a young man and that he played cricket in Malaya. He was an active man who did a lot of walking and he played bowls. He also assisted his son with his football. He mowed the lawn and enjoyed gardening.
(j)After he retired from the RAAF in 1970, Mr. Marrinan obtained a job with Telstra in 1972. He worked for Telstra until he retired in 1988.
(k)While working for Telstra he used to walk about two kms per day to get to the bus or train.
(l)Mr. Marrinan’s daughter believes that when he worked for Telstra he used to eat pies and hamburgers for lunch.
(m)Mr. Marrinan drank a lot of full cream milk. He also enjoyed “a couple of beers each day”. He used to regularly buy 2.5kgm of chocolate and eat it over the following month.
(n)In 1986, Mr. Marrinan was told to follow a low cholesterol diet. In the following ten years his diet changed substantially from one that was high in fat to a low fat intake. The family diet also changed from eating butter to eating margarine.
22. Dr. Ruth English, Nutrition Consultant, does not accept that Mr. Marrinan ate as much as his late wife and daughter have claimed. Dr. English has calculated that if he ate as much as that claimed, Mr. Marrinan would have gained in body weight 1.1kgm per week, every week, for 22 years.
23. The records show Mr. Marrinan’s weights at various times as:
Event
Date
Weight (lbs)
Weight (kg)
At enlistment
15.6.44
133
60.5
Demobilisation
24.1.46
140
63.6
Re-enlistment Interim RAAF
21.1.47
137
62.3
Re-enlistment Permanent RAAF
9.12.47
151
68.6
Pre O/S deployment
3.4.51
149
67.7
Re-enlistment
15.3.60
130
59.0
Re-examination
2.9.60
139
63.2
Examination (over 40 years)
7.8.69
139
63.4
Discharge
3.9.70
141
64.3
24. Mr. Marrinan’s weight on re-enlistment with the RAAF on a permanent basis in 1947, at 68.6kgm, was the heaviest recorded. The second heaviest weight, 67.7 kgm was recorded just before he went to Malaya. Thereafter he was considerably lighter.
25. The material placed before the Tribunal indicates that Mr. Marrinan ate at RAAF Base Messes almost continuously from mid 1944 until he got married in 1954, including his period of 12 months operational service in Malaya in 1951/52 and excluding his year as a civilian from February 1946 to January 1947. The material also indicates that his diet, until about 1986, was about the same as the diet he and his wife were accustomed to in the RAAF Mess.
26. The whole of the material does not raise the hypothesis that Mr. Marrinan increased his intake of animal fats by any significant level, or at all, post operational service (Malaya), compared with his pre-operational service diet and certainly not for reasons related to his service in Malaya. The levels seem to have been the same.
27. There remains the question as to whether the whole of Mr. Marrinan’s eligible service diet should be taken into account. He appears to have eaten in RAAF Messes during the following periods, which total about four years:
·15 June 1944 to 8 February 1946 (19 months)
·21 January 1947 to 20 September 1948 (20 months)
·6 April 1951 to 15 May 1952 (13 months)
28. The standard of proof in the case of eligible service which is not operational service is contained in s.120(4) of the VEA. It provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
29. Section 120B provides that, for the purposes of subsection 120(4), to be reasonably satisfied that the death of a person was war-caused the material must raise a connection between the death of the person and some particular service rendered by the person and there is in force a SoP that upholds the contention.
30. In this case the relevant SoP is No. 29 of 2005 and the relevant parts are:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the prostate or death from malignant neoplasm of the prostate is connected with the circumstances of a person’s relevant service is:
(a)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least ten years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;”
31. For the purposes of this exercise I accept that Mr. Marrinan’s diet prior to service in 1944 contained 129gm of animal fat per day (the Australian average for adult males).
32. Ms. Kilworth calculated the average daily fat intake, post eligible service, as 180gms, based on the information supplied by Mrs and Ms. Marrinan. This would be an increase from 129gm of fat, just under 40%.
33. However, I accept the evidence of Dr. English that if Mr. Marrinan had consistently eaten the diet attested to by his wife and daughter he would have put on a lot of weight. As it was, his weight fell after he went to Malaya and remained relatively low at about 64 kgm from 1960 to 1970.
34. I find that Mr. Marrinan’s diet post eligible service contained much less than an average of 180gms per day. The SoP is not satisfied.
35. Consequently, I find that:
(a)No hypothesis is raised which links the death of Mr. Marrinan with the particular circumstances of his operational service, and
(b)The death of Mr. Marrinan is not connected with the circumstances of his relevant service.
36. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 4,21.3.05; 8.4.05; 10,11,12.5.05; 20,22.6.05; 30.9.05
Date of Decision 21 December 2005
Counsel for the Applicant Mr. A. Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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