Mason and Repatriation Commission
[2003] AATA 931
•22 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 931
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1229
VETERANS' APPEALS DIVISION ) Re Lorna Meryl Mason Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr P D Lynch, MemberDate22 September 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Administrative Appeals Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides:
(1) The death of Mr Mason was war-caused pursuant to section 8 of the Veterans’ Entitlements Act 1986;
(2) Mrs Mason is qualified for a Widow’s Pension with effect from and including 17 February 2001.
...............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Whether death of veteran was war-caused – Reasonable hypothesis - Malignant neoplasm of the prostate – Whether Applicant consumed 40 per cent increase in animal fat for 20 years before the clinical onset of prostate cancer
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8, 13, 119, 120, 120A, 196B
AUTHORITIES
Re Kattenberg and Repatriation Commission [2001] AATA 970
Kattenberg v Repatriation Commission (2002) 34 AAR 562
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Re Keenan and Repatriation Commission [2000] AATA 707
Re Towle and Repatriation Commission [2000] AATA 706
Re Brown and Repatriation Commission [2000] AATA 708
Re Paint and Repatriation Commission [2000] AATA 709
Re Collingwood and Repatriation Commission [2000] AATA 710
REASONS FOR DECISION
22 September 2003 Ms S M Bullock, Senior Member
Dr P D Lynch, Member1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mrs Lorna Meryl Mason, of a decision by the Repatriation Commission (“the Commission”) dated 21 December 1999, as affirmed by the Veterans’ Review Board (“the Board”) on 11 January 2001, that determined that the death of the Applicant’s late husband, Mr Keith Mason, was not war-caused.
2. A Hearing was held before the Tribunal in Sydney on 12 May 2003. Additional reports were provided by the Respondent and the Applicant following the Hearing, and final written reports and submissions were received by 23 June 2003. Mrs Mason was represented by Mr M Vincent of Counsel, and the Respondent, the Commission, was represented by Ms P Hook, Departmental Advocate. Oral evidence was provided to the Tribunal by Mrs Mason and Ms JK Heyman, Consultant Dietician-Nutritionist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 (“T Documents”, T1-14) in addition to the following exhibits:
Exhibits
Description
Date
Exhibit A1
Statement by Mrs L Mason
4 March 2002
Exhibit A2
Further Statement by Mrs L Mason
29 November 2002
Exhibit A3
Report by Ms JK Heyman, Consultant Dietician-Nutritionist
27 May 2002
Exhibit A4
Report by Ms JK Heyman, Consultant Dietician-Nutritionist
22 October 2002
Exhibit A5
Report by Ms JK Heyman, Consultant Dietician-Nutritionist
26 April 2003
Exhibit A6
Extracts from publication “A History of Human Nutrition in Australia” by Frederick W Clements, Longman Cheshire Pty Ltd (1986), pp 78-80; 95, 96
Exhibit A7
Report by Ms JK Heyman, Consultant Dietician-Nutritionist
19 June 2003
Exhibit R1
Report by Dr R English, Nutrition Consultant
14 February 2003
Exhibit R2
Report by Dr R English, Nutrition Consultant
9 May 2003
Exhibit R3
Report by Dr R English, Nutrition Consultant
August 1998
Exhibit R4
Report by Dr ER Smith, Gastroenterologist
25 September 1996
Exhibit R5
Single sheet entitled “Frequency distribution of total daily intake of fat (grams) for adult males in Australia 1936-8”.
Undated
Exhibit R6
Report by Dr R English, Nutrition Consultant
26 May 2003
ISSUES
3. The issues in this matter are:
· Whether the cause of Mr Mason’s death was from malignant neoplasm of the prostate;
· Whether there is a reasonable hypothesis through the application of the relevant Statement of Principles linking Mr Mason’s death from malignant neoplasm of the prostate to his service;
· Whether Mr Mason’s death was war-caused.
4. The Applicant and Respondent have agreed that the earliest date of effect should this application for review be successful is 17 February 2001, being six months prior to the date of lodgement of the appeal to the Tribunal which was out of time.
5. At Hearing, the Applicant submitted that the cause of Mr Mason’s death being pursued as related to service was adenocarcinoma of the prostate and not hypertension, as previously claimed before the Commission and the Board.
SERVICE
6. Mr Mason served in the Royal Australian Air Force (“RAAF”) in World War II between 3 November 1942 and 18 January 1946. Mr Mason served overseas in the South West Pacific between June and November 1945 and therefore the whole of his service constitutes operational service as defined in the Veterans’ Entitlements Act1986.
LEGISLATION
7. A decision in this matter requires consideration of the provisions of the Veterans’ Entitlements Act1986 (“the Act”).
8. Section 8 of the Act deals with war-caused death and states as relevant:
“8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note:The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
…”
9. Section 13 of the Act deals with eligibility for pensions.
10. Section 119 of the Act reflects that decision-makers are not bound by technicalities and that decision-making under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time, the dimming of memory and the absence or deficiency in records.
11. The standard of proof to be used in relation to Mr Mason’s operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
...”
12. Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority (“RMA”) or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
“120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, 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) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
…”
STATEMENT OF PRINCIPLES
13. It is not disputed that the applicable Statement of Principles in this matter is the Statement of Principles concerning Malignant Neoplasm of the Prostate, Instrument Number 84 of 1999 as amended by Instrument Number 69 of 2002.
14. The Factor in the Statement of Principles that is proposed by the Applicant as connecting Mr Mason’s service with his death from malignant neoplasm of the prostate is Factor 5(c) which states:
“(c) increasing animal fat consumption by at least 40 % and to at least 70 gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate…”
15. The definition of animal fat in the Statement of Principles was amended by Instrument Number 69 of 2002, which provides:
“ ‘animal fat’ means fat contained in or derived from:
(i) meat, other flesh or offal from animals (including birds but excluding seafood),
(ii) dairy products, or
(iii) eggs from birds;”
BACKGROUND
16. Mr Keith Mason died on 5 November 1997 at 73 years of age. The cause of death noted in his Death Certificate was:
“[I] Advanced adenocarcinoma prostate 6 years
[ii] Hypertension years” (T4, p12)
17. The Department of Veterans’ Affairs provided the following information as to the history of Mr Mason’s conditions (attached as a table to the T Documents):
Accepted as war-caused:
21 March 1996-Generalised Anxiety Disorder
21 March 1996-Chronic Solar Skin Damage
21 March 1996-Functional DyspepsiaEligible for Treatment (Not Service Related)
25 March 1991-Malignant Neoplasia-Stage C Carcinoma of Prostate
Not Accepted as War-Caused
17 October 1996-Malignant Neoplasm of the Prostate
11 January 2001-Death, Rejected18. Mrs Mason lodged a “Claim for pension by a widow, widower or other dependant of a deceased veteran or mariner” to the Department of Veterans’ Affairs on 24 March 1998 (T4, pp7-11). On 26 March 1998, the Repatriation Commission decided that the death of Mr Mason was not related to service (T5). Mrs Mason appealed to the Board on 8 April 1998 (T6). On 2 September 1998, the Board decided to affirm the decision under review (T7).
19. On 16 December 1999, Mrs Mason lodged a new claim for acceptance of Mr Mason’s death as being related to service (T8). On 21 December 1999, the Commission decided that Mr Mason’s death was not related to Service (T9). On 13 March 2000, Mrs Mason lodged an application for review to the Board. On 13 April 2000, a Departmental Review Officer decided that there were no grounds to vary the Commission’s decision under section 31 of the Act (T11). On 11 January 2001, the Board decided to affirm the Commission’s decision (T12).
20. Mrs Mason lodged an application for review to the Tribunal on 17 August 2001 (T1). On 19 October 2001 the Tribunal directed that an extension of time for Mrs Mason to lodge an appeal to the Tribunal be granted until 17 August 2001 pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (T1, p1D).
EVIDENCE OF MRS LORNA MERYL MASON
21. Mrs Mason stated that she married Keith Stanley Mason on 6 March 1948, a couple of years after he returned from service (T4, p13). Mrs Mason was married to Mr Mason for almost 50 years when he passed away. Mrs Mason knew Mr Mason’s family during the war and before she met her future husband. Mrs Mason met the Mason family in about 1942 when she was about 17 or 18 years old. Mrs Mason first met Mr Mason’s brother, Gordon, and his girlfriend Nancy, when she was on holidays at Katoomba. They kept in touch and Mrs Mason later travelled from Kurri Kurri in New South Wales to visit the family where she was introduced to her future husband’s mother, father and sisters.
22. About four months after meeting Gordon Mason, Mrs Mason organised to stay three nights a week at the Mason’s family home in Lambton, Newcastle. Mrs Mason was not exactly sure of the timeframe, but believed she commenced staying with the Mason family in about mid to late 1943. Her family lived 30 miles from Newcastle and Mrs Mason was working in Newcastle at that time. At this time Mrs Mason did not meet Mr Keith Mason, until he returned from service in 1946.
23. Mrs Mason stated that she shared many meals with Mr Mason’s mother and father. Only Mr Mason’s mother and father were at home when she ate at the Mason’s home. Mr Mason’s mother did the cooking and was a good cook. Mrs Mason stated that there were four children in the Mason family, Gordon, Olive, Keith and Beryl. Mr Mason’s father was a steam tram driver then later worked as a starter for buses before he retired. Mr Mason stated that the Mason family was struggling and did not have a lot of money at all. Mr Mason’s father never had a large wage and his mother did not undertake any paid worked. Mrs Mason recalled that butter and shoes were rationed but could not recall whether the war affected the availability of meat, however she did not think that meat was “couponed”. Mrs Mason continued staying three nights per week at the Mason’s home for three years. She stated that between 1943 and 1948, she ate the same meals as the Mason family.
24. Mrs Mason stated that the food she ate in the Mason household was different to the food she ate with her own family. The Mason family ate casseroles, a great deal of soup, but never steak, consuming a variety of cheaper meat cuts, including lambs fry. Mr Mason’s mother cooked economical food, including rabbits, rissoles and mince dishes. Mrs Mason stated that she learnt about cooking from Mr Mason’s mother, more than from her own mother. Mrs Mason stated that her family never had sweets and she was not brought up with sweets. Mrs Mason stated that Mr Mason’s mother used to make Mr Keith Mason sweets, such as blancmange and steamed puddings (Exhibit A1, paragraph 5). Mrs Mason stated that the Mason family had sweets every night and Mr Mason’s mother maintained it was cheaper to fill the family up on sweets, than bread and butter. Mrs Mason stated that she was never served a meal without sweets in the time she was there staying with the family.
25. Mr Mason’s mother told Mrs Mason about another son, Keith Mason, who was at war in the RAAF and asked her to write to him. Mrs Mason recalled that she wrote to Mr Mason in Morotai and Darwin. Mrs Mason wrote to Mr Mason for three years before she met him when he returned from service in 1946. They began dating, and she married Mr Mason about two years later in 1948.
26. After Mr Mason returned from Service, he moved back into his parent’s home. Mrs Mason then described Mr Mason’s work history. Before enlistment, Mr Mason worked at Nestles in the Office, then joined the Air Training Corp, and enlisted in the RAAF. After Mr Mason was discharged from the RAAF, he went back to working for Nestles as a salesman. Mr Mason stayed in this position for a couple of years and then purchased a mixed business with his brother in Mayfield West. Following that, Mr Mason again went to work for Nestles, leaving in about 1954 because he no longer liked the work. Mr Mason then worked for three to four years in a business making parts for motor vehicles. This company wanted Mr Mason to be a sales representative, but Mr Mason did not like dealing with public. Mr Mason then worked as Manager for a friend’s truck contracting business. Mr Mason was quite happy in this job and stayed there until he was 50 years old. Mr Mason had two strokes at age 50, became paralysed down one side and lost his speech. After a slow process he was able to return to work. By that time, his friend had sold the truck business. Mr Mason was then offered a job with “New Bowles Bricks”, which was later taken over by BHP. Mr Mason stayed there until he retired at age 65 years in 1989. Mrs Mason stated that approximately one year or two after Mr Mason retired, he was diagnosed with prostate cancer, in about 1991.
27. After they were married, Mr and Mrs Mason stayed with Mr Mason’s mother and father for about three months. They then moved in with Mrs Mason’s mother for about 12 months between 1949 to1950 to be closer to where Mr Mason was working for Nestles. During this time, Mrs Mason’s mother cooked for them, but they went to Mr Mason’s parent’s home for the weekends. Mrs Mason stated that her mother cooked lambs brains or lamb cutlets, lambs fry, rissoles, soup, vegetables, rice pudding, bread and butter pudding and cakes for supper. Mrs Mason thought that her mother’s cooking was different to Mr Mason’s mother’s cooking, but not greatly because it was still cheap food, such as stewed rabbit. Mrs Mason stated that her mother was a more plain cook and that Mr Mason’s mother would put in extra onion and different things they grew in their garden, as Mr Mason’s father was a keen gardener. Mr Mason never complained about the food Mrs Mason’s mother cooked at that time. Mrs Mason stated that they had extra food at night, such as curried sausages. During this time, Mr Mason bought lunch during the working day, such as a pie or chips.
28. Mrs Mason stated that she did the cooking when she was married to Mr Mason. Mrs Mason stated that her pattern of cooking did not change over the years, although it might have changed a bit when Mr Mason found out he had cancer. Mrs Mason continued with the same pattern of making sweets for Mr Mason as had his mother. Mrs Mason made sweets such as steamed puddings, stewed fruits, and custard in summer. Mrs Mason stated that that was the food Mr Mason liked, so she continued making it for him.
29. Mrs Mason stated that her husband had regular breakfasts, but not things such as cereal because he did not like milk. Mr Mason would have leftovers on toast or mince for breakfast. Mrs Mason stated that her husband used to take his lunch to work (Exhibit A1, paragraph 7). When he did this, Mrs Mason packed his usual lunch of meat and pickles sandwiches. Mr Mason would also take morning tea to work, such as cake and biscuits. Mrs Mason always cooked biscuits and Mr Mason ate a lot of biscuits and cake. Mrs Mason stated that Mr Mason bought his lunch when working at New Bowles Bricks and Nestles, and ate it on the run. In her statement Mrs Mason noted that when Mr Mason bought his lunch, which was regularly, this would be a meat pie or a hamburger (Exhibit A1, paragraph 7). Mr Mason continued with this pattern throughout his working years, Mrs Mason stated.
30. Mrs Mason stated that on the weekends, she cooked a baked dinner for Sunday lunch, with sweets. On Sunday night for tea, they would have something easy, such as sardines on toast. On Friday nights, they would have fish and chips or frankfurts and the same thing on Saturday night. Mrs Mason stated that dinner during the week was usually cooked meat and vegetables, and that did not change. There was no cooking oil available at that time, so Mrs Mason cooked with dripping not oil. Mrs Mason did not change her cooking habits with the introduction of vegetable oil in the 1970s.
31. Mrs Mason stated that the food Mr Mason’s mother cooked was similar to what she cooked for him. Mrs Mason stated that she learnt most of her cooking skills from Mr Mason’s mother. In relation to the differences between her cooking and that of Mrs Mason mother, she stated that she and her husband might have had fish and chips, but the Mason family would not have been able to afford that for six people. Mrs Mason and her husband also had sardines on toast and she cooked spaghetti bolognaise, both of which would have been different to that cooked for the Mason family, as Mr Mason’s mother might have used a tin of tomatoes and bacon that she herself might not have put in.
32. In her second statement, Mrs Mason noted that her husband told her he started eating fatty food during his service in the RAAF (Exhibit A2, paragraph 1). Mr Mason ate bully beef and drank a great deal of cordial. He did not complain about eating food such as bully beef and was not a complaining man at all. Mrs Mason stated that in her opinion, her husband enjoyed eating unhealthy food even more after service. He ate a lot of dairy products and large amounts of fatty meat, his taste for this apparently having been encouraged by his service diet (Exhibit A2, paragraph 2). Mr Mason ate hamburgers, fish and chips and frankfurts. He liked that type of food, which was not healthy food. Mr Mason might have eaten frankfurts at his mother’s house, but he would not have eaten fish and chips and he would not have bought hamburgers. He did this when he was eating on the run. Mrs Mason stated that she and her husband did not go out at night to socialise and she thought that when they sat around they would eat more. Mr Mason liked food. He ate fruit, although not a lot. Mrs Mason stated that Mr Mason did not drink much, if any, alcohol.
33. Mrs Mason stated that her husband loved condensed milk after his service and that he ate it dry off a spoon from the tin (Exhibit A2, paragraph 3). Mrs Mason did not think that Mr Mason ate condensed milk before he went away to war, however, she noted that the Mason family always had condensed milk in their tea. She did not see anyone in the Mason family eat from the tin of condensed milk.
34. Mrs Mason stated that Mr Mason was not a very active person. His family were Baptist’s and went to church. Mr Mason’s mother said he was very immature when he joined up, and that he was not a very “old” 18 year old. Mrs Mason thought this meant that he was innocent, not worldly and had not “knocked around”.. Mr Mason was not playing sport or engaged in any other activities prior to service. His work at Nestles before service was not active work.
35. Mr Mason was a very shy and very nervous type of man from the time Mrs Mason married him (Exhibit A1, paragraph 2). She stated that Mr Mason had bad nerves all the time. Mr Mason never really socialised and did not like crowds. In her first statement, Mrs Mason noted that Mr Mason had an anxiety condition, which was later accepted as war-caused, but present from the time he had come home from service (Exhibit A1, paragraph 3). Mrs Mason stated that Mr Mason took Serepax on a regular basis. In Mrs Mason’s statement, she explained that this was throughout the day, taking one quarter of a tablet, four times per day (Exhibit A1, paragraph 3). Mrs Mason noted that Mr Mason had seen a psychiatrist many years ago, in the very early part of their married life. The psychiatrist had prescribed Mr Mason Serepax, to calm his nerves. Mrs Mason told the Tribunal that Mr Mason had the same family doctor for years, Dr J Burgess, who continued to prescribe Mr Mason Serepax.
36. Mrs Mason was referred to the report of Dr ER Smith, Gastroenterologist, dated 25 September 1996 (Exhibit R4), which noted that Mr Mason had episodes of belching and excessive wind, the symptoms first appearing approximately 20 years ago. Mrs Mason stated that Mr Mason always seemed to belch a lot and whatever he ate seemed to repeat on him. Mrs Mason recalled gastric symptoms for a long time and she used to believe he had an ulcer. Mrs Mason agreed with Dr Smith who reported that the symptoms became a daily problem in the 12 months before Dr Smith saw Mr Mason in about 1995 to 1996. Mrs Mason stated that when Mr Mason realised that he had that problem in approximately 1992 to 1993, he tried to avoid spicy and fatty food.
37. Mrs Mason was also referred to a psychiatric report by Dr L Lambeth dated 19 September 1996, in which he reported that Mr Mason “suffers from severe nervous dyspepsia, and is easily fatigued” (T8, p49). Mrs Mason stated that she had thought the nervous dyspepsia was the start of an ulcer. Mrs Mason was not sure if it caused or impacted on his digestion, however, she recalled that Mr Mason never told her that food aggravated him in his early days. Mrs Mason thought that Dr Lambeth’s psychiatric report was a very good summary of how Mr Mason was and reiterated that Mr Mason was a nervous, anxious sort of person and worried all the time about his health.
38. In her second statement (Exhibit A2, paragraph 5), Mrs Mason stated that Mr Mason ate a lot more when he was stressed or unsettled, as if the food he ate calmed his nerves. Mrs Mason noted that at these times, she recalled he would eat quite fatty food, such as condensed milk or dairy products. Mrs Mason stated that if Mr Mason was upset he would eat a lot of chocolate and more biscuits. This happened sometimes at night, or on weekends, depending on how things were going with him. Mrs Mason thought this could have been about once a week.
39. In relation to Mr Mason’s weight, Mrs Mason stated that this did not vary much, even after he retired. Mr Mason never seemed to gain much weight, even though he ate a lot of sweet food. When Mr Mason first came back from service, he looked very thin and yellow looking, as though he had malaria, particularly compared to the photos she had seen. Mrs Mason recalled that the family commented that Mr Mason looked as though he had lost weight. Mr Mason filled out a bit after service and after that Mr Mason’s weight did not vary much. Mrs Mason stated that they had the same clothes for years in their house. After his two strokes, Mr Mason’s weight greatly reduced again, Mrs Mason stated. Mrs Mason thought Mr Mason would have put on weight with the amount of sweets he ate.
EVIDENCE OF MS J K HEYMAN, DIETICIAN
40. Ms Heyman provided reports to the Tribunal dated 27 May 2002 (Exhibit A3); 22 October 2002 (Exhibit A4); 26 April 2003 (Exhibit A5) and following the Hearing, a report dated 19 June 2003 (Exhibit A7). Ms Heyman also provided oral evidence to the Tribunal at the Hearing.
41. In her first report of 27 May 2003, Ms Heyman analysed the animal fat content of Mr Mason’s pre-service and post-service diet based on information obtained from Mrs Mason in a telephone interview. Using values taken from J A T Pennington’s Bowes & Church’s Food Value of Portions Commonly Used (1989), 15th edition, Philadelphia, J B Lippincott Company, Mr Mason’s pre-service diet was found by Ms Heyman to contain 72.4 grams of animal fat per day. Ms Heyman reported that the average animal fat content of rations during Mr Mason’s period of service was 106.4 grams per day, which represented a 47 per cent increase in animal fat per day compared to Mr Mason’s pre-service diet. In evidence Ms Heyman clarified that for the animal fat intake during service she used the data in Dr English’s report of August 1998 (Exhibit R3, page 8).
42. In her second report of 22 October 2002, Ms Heyman provided an amended analysis of Mr Mason’s post-service diet, because some foods described by Mrs Mason had been omitted from her first report. The amended animal fat content was 101.9 grams per day, representing a 40.7 per cent increase in animal fat content in the post service diet compared to the pre-service diet (Exhibit A4).
43. In her report of 26 April 2003 (Exhibit A5), Ms Heyman addressed concerns raised by Dr R English in her report dated 14 February 2003 (Exhibit R1). In relation to her use of the Bowes & Churche’s Food Values Commonly Used 15th edition, published in the United States, Ms Heyman did not believe there was a significant difference between the use of United States food tables and Australian food tables. However, Ms Heyman reanalysed Mr Mason’s post-service diet based on Australian food tables and found that the animal fat content was 103.9 grams per day. This also took into account that animal fat in fish was not to be included in the total animal fat. Ms Heyman noted that this reanalysis still supported Mr Mason as consuming more than 70 grams of animal fat per day for more than 20 years, and there being more than a 40 per cent increase in animal fat content for more than 20 years in Mr Mason’s diet post-service as compared to his pre-service diet.
44. Ms Heyman did not agree with the re-calculation by Dr English in her report of 9 May 2003 (Exhibit R2), which found that Mr Mason’s animal fat consumption per day post-service was 97.4 grams. Ms Heyman noted that Dr English may have a frequency of food eaten by Mr Mason wrong, or she may have left out animal fat in fish and chips. In relation to the food tables used, Ms Heyman stated that she used the Australian food tables in her reanalysis of Mr Mason’s post-service diet and Dr English used the Australian and the New Zealand tables. Ms Heyman also noted that her serving sizes were based on Mrs Mason’s descriptions. Ms Heyman stated that some servings were in cups, grams or milligrams, and she chose the serving size that met Mrs Mason’s description. Ms Heyman noted that Dr English might have chosen one of the other dozen choices available.
45. In relation to Mr Mason’s pre-service diet, Ms Heyman stated that Dr English relies on a national household dietary survey conducted in 1936 to 1938 under the auspices of the National Advisory Council on Nutrition (Exhibit R3), in which there are several problems identified by Ms Heyman. Ms Heyman noted that in that era, there were no Australian dieticians and the survey was completed by social workers and nurses. There were therefore no professionals trained in nutrition administering the survey. Ms Heyman noted that the group used in the survey was recruited through Baby Health Centres and were recruited by nurses or teachers who taught clients how to look after their baby and about nutrition. Ms Heyman noted a bias towards groups that were literate, had good nutritional knowledge and whose nutrition was based on directions by nurses and teachers. The national dietary survey also featured the under-representation of poor people and underprivileged people. Ms Heyman noted that the national dietary survey may not have included people such as Mr Mason’s family, because they were not well-off. She noted the fact that there were no participants from Newcastle in the survey, but was not able to say whether this would have any bearing. Ms Heyman noted also that the survey was very long compared to today’s standards and ran for 28 days, which would be burdensome for the participants. Although Ms Heyman agreed that this is the best information available of that period, she noted that it is still by no means perfect.
46. Referring to the summary of the data from the 1936 to 1938 national dietary survey contained in the document entitled “Frequency distribution of total daily intake of fat (grams) for adult males in Australia 1936-8” (Exhibit R5), Ms Heyman noted that Mr Mason’s level of 72.4 grams of animal fat per day pre-service is not an aberrant figure in terms of the study. Ms Heyman acknowledged that Mr Mason’s eating pattern was considered under-nutritious for that time. However, according to the survey there were people who ate that level of fat. Although this group was a minority, Ms Heyman noted that this did not exclude the possibility that Mr Mason’s family or Mr Mason as an individual could have fallen into that group.
47. Ms Heyman noted that it was in the evening meal that there was the biggest difference between Mr Mason’s pre-service and post-service diet. Lunch post-service was also different because Mr Mason ate fatty food such as chips, when the Mason family ate only sandwiches. A variety of things eaten at dinner changed in the post-service diet, including the addition of baked dinners, lamb, chicken, pork, baked vegetables, fish and chips, sausages, rissoles, and a greater variety of fatty meats. Mrs Mason only described dinners pre-service such as rabbit and casseroles, and there was no further variety described. Ms Heyman noted the reported history given by Mrs Mason that Mr Mason’s family always ate sweets because it filled them up. Ms Heyman noted that meat per grams has more fat than dairy products and milk. Ms Heyman stated that people with better income might have had more animal fat from meat.
48. Ms Heyman noted that differences in Mr Mason’s post-service diet may be explained by there being different rations during war-time, the difference between Mr Mason living in the Mason family and living with his wife, and the fact that as an adult, the head of the household, he chose what he ate. Furthermore, according to Mrs Mason, Mr Mason ate differently because of his anxiety disorder. Although Mrs Mason’s evidence was that she used the same cooking methods as Mr Mason’s mother and his pre and post-service diets were similar in some ways, Ms Heyman stated that the two diets described to her by Mrs Mason pre and post-service were different. Ms Heyman noted that when she took Mrs Mason back to both these periods she got very different eating patterns. Ms Heyman stated that for most of his married life, Mr Mason ate the same way, but this was different to how his family ate.
49. Ms Heyman referred to Dr English’s assertion in her report of February 2003 (Exhibit R1, p7), that Mr Mason’s energy intake of 9436 kilojoules per day is less than the energy she estimates Mr Mason would have required per day, of 12,029 kilojoules. Ms Heyman noted a study that was undertaken into energy intake in the 1920s (Exhibit A6, p78-80). This study analysed what ten men and nine women students from Sydney University ate over a 24 hour period, then analysed their energy intake. Ms Heyman noted that the average energy intake was 9115 kilojoules per day, which is close to what Mr Mason was eating pre-service. Although this study again was not implemented perfectly, it was evidence of what males were eating close to what Mr Mason was eating pre-service and in that same timeframe.
50. Ms Heyman noted the history given by Mrs Mason that Mr Mason was not a very active person, did not undertake sport and only went to church, would make a difference in relation to what Dr English expected Mr Mason to be burning per day. Dr English estimates Mr Mason’s energy level as moderate, but Ms Heyman believes this should have been sedentary. Ms Heyman noted that she would have reduced the estimated energy levels also because his employment was clerical. Ms Heyman suggested that if she had used the Schofield equation used by Dr English, she would have changed the activity factor from moderate activity level of 1.8 to sedentary level which was approximately 1.3. In relation to the consistency of Mr Mason’s weight, Ms Heyman noted that it is well-documented that the body retains weight during life. Mr Mason may also have had a fast metabolism. Ms Heyman stated that if someone is eating the same they would maintain weight.
51. Ms Heyman stated that although she had the background information that Mr Mason was anxious, Mrs Mason did not tell her that Mr Mason ate more when he was nervous. Ms Heyman noted that it is well documented that some people under stress eat a lot more, while others respond to stress by their appetite disappearing. Mr Mason falls into first group. Ms Heyman noted that some people who eat more under stress often eat sweet things. Others may eat food high in fat and consume their comfort food based on a diet history of intake and things they liked throughout life. Mr Mason ate a lot of sweet foods instead of meat as a child, so he might think of blancmange or custard as comfort food, Ms Heyman noted.
52. Ms Heyman noted that information about condensed milk in Mr Mason’s diet came from Mrs Mason after she had spoken to her. Ms Heyman did not record a fat content related to condensed milk in her analysis, but had included fresh full cream milk. Ms Heyman noted that the difference would have been 5.2 grams (Exhibit A5, pp 2,3) if Mr Mason put condensed milk instead of normal milk in his tea. However, given the evidence at the hearing that Mr Mason snacked on condensed milk, eating it off the spoon, this would result in more fat. The fat from snacking on condensed milk would be 5.2 grams, based on 3 teaspoons per day, each teaspoon being 1.8 grams, and would take the animal fat content from 101.9 grams to about 106 grams.
53. Ms Heyman did not feel it was necessary to re-analyse Mr Mason’s pre-service diet using Australian food tables. Ms Heyman stated that there was no difference in using Australian food tables as compared to United States food tables, as she had shown in her reanalysis of the post-service diet where there was 103.9 grams of animal fat per day using American tables and 101.9 using Australian food tables. Ms Heyman acknowledged that there were problems with her analysis of the pre-service diet due to Mr Mason’s memory limitations. Mrs Mason’s recall was not perfect, even if she asked her what she ate yesterday. The difficulty for the dietician in this matter was attempting to make assessments of a period before Mrs Mason had even met her husband. Ms Heyman did not think that it was relevant whether the pre-service diet analysed was during war-time or not. Ms Heyman stated that pre-service means prior to Mr Mason’s service. Ms Heyman noted that the national dietary survey relied upon by Dr English of 1936 to 1938 was not undertaken during war-time. However, Ms Heyman stated that Mrs Mason knew her husband’s family, ate with them, knew the mother’s cooking ability and practices and the socioeconomic status of the family. These factors are important and cannot be reflected in an average survey which did not take place in war-time.
EVIDENCE OF DR R ENGLISH, NUTRITION CONSULTANT
54. Ms English provided reports to the Tribunal dated 14 February 2003 (Exhibit R1); 9 May 2003 (Exhibit R2) and a report following the Hearing dated 26 May 2003 (Exhibit R6). The Tribunal also took into evidence a report by Dr English dated August 1998 entitled “Animal Fat in the Australian diet including the Armed Services’ rations in World War II-Scientific review for Department of Veterans’ Affairs” (Exhibit R3).
55. Dr English’s report of August 1998, “Animal Fat in the Australian diet including the Armed Services’ rations in World War II-Scientific review for Department of Veterans’ Affairs” (Exhibit R3), analysed animal fat in the Australian diet, pre World War II, during World World II years for civilian and armed services, and post World War II to the present. The report compared the animal fat content of civilian and armed services diets during World War II, providing (on page 8 of the report) the animal fat content of civilian diets (122 grams per day) and the animal fat content of six service rations diets including: Eastern and North Command (95.8 grams per day); Temperate Australia (100.5 grams per day); Tropical Australia (108.4 grams per day), Middle East (117.4 grams per day); New Guinea and Pacific Islands (113.2 grams per day) and the amended New Guinea and Pacific Islands diet (131.8 grams per day). This report found, amongst other things, that animal fat content in food was high pre-World War II, based on the 1936 to 1938 national dietary survey. It was reported that during World War II, the diet in the armed services only exceeded the animal fat content found in civilian diets in the New Guinea and the Pacific Islands for a specific period from 1 February 1944.
56. In her report of 14 February 2003, Dr English recalculated the animal fat content in Mr Mason’s pre and post-service diet using Ms Heyman’s method, because it was not clear in Ms Heyman’s analysis how she calculated the animal fat contribution of individual foods to the daily total of animal fat intake, and the frequency of intake had not been shown as factored into her tables. Using her re-calculated figures, Dr English agreed with the calculation by Ms Heyman of 72.4 grams of animal fat per day in Mr Mason’s pre-service diet. However, she disagreed with the calculation of Mr Mason’s post-service diet, which she found resulted in a lower animal fat content of 97.4 grams. Dr English noted that this is only 34.5 per cent increase in animal fat between the pre and post-service diet, and therefore does not meet the 40 per cent increase as required by the Statement of Principles.
57. Dr English disputed Ms Heyman’s use of the United States food tables to analyse Australian diets. Dr English noted the significant difference in the nutrient values of Australian foods and those of American and British foods. In particular, the fat values of animal meats in Australia were found to be considerably lower than those reported in the United States. Also for specific foods apart from meats, the fat content of American food is significantly higher, such as the fat contained in hot chips.
58. Thus, Dr English did not believe Ms Heyman used a scientifically valid measure of Mr Mason’s pre-service diet. Dr English further noted that it is not possible to validate the accuracy of food intake in the distant past as subjectively reported by Applicants, without access to dietary information of food intake recorded at that time or some objective measure of validity of the reported intake. Dr English opined that people are unable to recall details of their own diets even after short periods of days or weeks. Dr English reported that the validity is more questionable when an Applicant to the Tribunal is required to recall information for the pre-service diet for a period before World War II or pre-service during this war, which is over 60 years ago. Specific problems with this approach include the age of the interviewee, likely errors of omission and intrusion/commission, unintentional elaboration with distortion of memory due to the effect of a range of factors, such as expectations and needs.
59. Dr English noted two external measures available to validate the analysis of both Mr Mason’s pre-service and post-service diets. The first measure involves a comparison between energy intake and energy expenditure. Using the Schofield equation, Dr English calculated the energy level of Mr Mason’s pre-service diet as 9436 kilojoules per day (Exhibit R1, Attachment 1). Dr English also calculated Mr Mason’s energy requirements prior to service, based on Mr Mason as an 18 year old in 1942 prior to enlistment, with a weight of 115 pounds (52.3 kilograms) and experiencing everyday living conditions of that era. This was also based on a moderate level of activity consistent with the veteran’s age, activity patterns of that era, his pre-war membership of the Air Training Corp and his occupation at this time. Dr English concluded that Mr Mason had an energy requirement of 12,029 kilojoules per day. Dr English noted that Mr Mason’s energy intake fell short of his energy requirements by 2,593 kilojoules per day, which would be equivalent of a weight loss of 0.55 kilograms per week, or 28.6 kilograms per year. This is inconsistent with Mr Mason’s entry medical report to the RAAF as Fit 1 (T3, p6) and his classification of body mass index falling with the defined health weight range. Dr English noted that the values obtained for energy intake (Exhibit R1, Attachment 2) and energy requirement (Exhibit R1, Attachment 4) in the post-service diet were reasonably consistent, and would be even more consistent if a lower activity factor was accepted due to the veteran’s age and lifestyle changes post-service.
60. Dr English reported that the second external measure of validation is a comparison with community food patterns and food availability of the era, for example as documented in the 1936-38 and 1944 national household dietary surveys for the pre-service diet (Exhibit R1, p7). The average animal fat intakes in these two surveys was 126 grams per day and 129 grams per day respectively and the reported animal fat in Mr Mason’s pre-service diet falls far short of these figures. Dr English also noted that in the Tribunal matter Queensland Grouped Action and Repatriation Commission, 10 September 1999 (Exhibit R1, Attachment 3), the Tribunal accepted data from the 1936-38 national dietary survey as a reference base for the animal fat intake of veterans whose widows had neither met nor married their husbands pre-war. Dr English noted that for the post-service diet, no dietary survey data was available, however the intake of 97.4 grams per day of animal fat would be consistent with the Australian Bureau of Statistics level reported of 121.7 to 131.7 grams per day of fat in the Australian diet from 1948 to 1968.
61. Dr English noted that the evidence pointed to Mr Mason consuming at least 70 grams of fat per day. However, based on her findings, there was no scientifically acceptable evidence that Mr Mason increased the intake of animal fat in his pre-service diet to post service diet by 40 per cent. Furthermore, her reanalysis using Ms Heyman’s method, showed that even taking into account the 72.4 grams pre-service, the increase of animal fat pre and post-service is only 34.5 per cent.
62. In her report of 14 February 2003, Dr English provided amended animal fat levels for the service rations scales as reported in August 1998 (Exhibit R3, page 8). Dr English adjusted these levels according to the criteria provided in the definition of “animal fat” in the Statement of Principles, Instrument Number 84 of 1999 as amended by Instrument Number 69 of 2002 (Exhibit R1, p9). Based on these amended service ration scales, Dr English noted that it is doubtful that Mr Mason’s animal fat intake increased during service. Accepting the average levels in the 1936-38 national dietary survey of 126 grams per day, Dr English reported that Mr Mason’s animal fat intake would have decreased in all postings except Morotai and Balikpapan where Mr Mason served from 30 June 1945 to November 1945. Dr English also noted that her estimation of Mr Mason’s animal fat intake of 97.4 grams per day post-service, was less than the animal fat level during his entire service period. Dr English noted that there is no evidence to support a service-related increase in the consumption of animal fat by Mr Mason, or its maintenance.
63. Dr English also reported that there are many factors that influence our food habits, which makes it difficult to identify one particular factor as having an overall influence on what we eat for such an extensive period as a minimum of 20 years. Dr English noted that an individual’s food patterns result from a wide range of factors that are complex and inter-related. Dr English considered it speculative to place much weight on a period of military service as responsible for food consumption patterns maintained over many years (Exhibit R1, p10).
64. In Dr English’s second report of 9 May 2003 (Exhibit R2), she noted that Ms Heyman had not responded to Dr English’s re-calculation of the post-service diet levels of animal fat intake. In Ms Heyman’s analysis using Australian food tables, there were also several animal fat levels that were inconsistent with data in either the Australian or New Zealand food tables. Dr English re-calculated Mr Mason’s post-service diet, taking into account the inconsistencies she had found in lamingtons, mashed potato, potato chips, biscuits, gravy and lemon butter and the amended animal fat content was found to be 88.6 grams per day. Dr English reiterated her concerns about the scientific validity of Ms Heyman’s analysis of the pre-service diet. In the summary of data from the 1936 to 1938 national dietary survey (Exhibit R5), less than two per cent of all returns had fat intakes as low or lower than 80 grams per day. Dr English also noted that her calculation of the energy intake of Mr Mason’s pre-service diet of 9436 kilojoules per day, falls below the quantity required for normal physiological needs of an adult male of that era, as provided by the National Council on Nutrition (Exhibit R2).
65. In her final report of 26 May 2003 (Exhibit R6), Dr English confirmed her view that the preferred evidence to adopt for Mr Mason’s pre-service diet is the average animal fat intake from the 1936 to 1938 national dietary survey. Dr English did not believe that any comments by Dr Clements in his book “A History of Human Nutrition in Australia” could be used to support Ms Heyman’s statement that the national dietary survey is fundamentally flawed. Dr English noted Dr Clements’ concern that the poor and really underprivileged were markedly under-represented. Dr English believed that this would only be relevant if Mr Mason’s family were poor or really underprivileged, which she did not think was the case. Dr English noted that Mr Mason’s father was in a responsible position as tram driver, and Mr Mason himself was in full-time clerical work, and older siblings may have had paid work. Dr English noted full national employment at this time, and that most families were not experiencing financial difficulties that affected food availability. In relation to Dr Clements comments about the effect of the excessive record-keeping during the period, Dr English noted that this related primarily to the response burden on the household and the completeness of record-keeping.
66. Dr English noted the results of the 1922 survey referred to by Ms Heyman have been overtaken by modern practices of nutrient analyses and recommendations of the National Health and Medical Research Council. Dr English also noted that it would be highly improbable that an 18 year old youth, living in an era of high energy expenditure would have had an adequate diet with an energy intake of 9436 kilojoules per day. Dr English did not believe Mr Mason could be considered to have a sedentary level of activity, with an activity factor of 1.3, according to the National Health and Medical Research Council (NHMRC) of Australia definitions. Dr English believed Mr Mason’s level of activity would not be below light-moderate level, with an activity factor of 1.7. Given this level, and the energy intake of Mr Mason pre-service, his diet pre-service could have been described over time as a “starvation diet”.
67. In relation to the use of appropriate food tables, Dr English concluded that the data from the Composition of Foods Australia (COFA) series, including the values in the “NUTTAB” program from Xyris Foodworks, is the most appropriate data set to analyse animal fat intake for these matters. Dr English also noted that it is appropriate to use earlier food composition databases from the COFA series, particularly given the changes in foods in the Australia marketplace and in particular changes in the use of animal versus vegetable fat. Dr English noted that the “AUSNET” tables of food composition values within the Xyris software used by Ms Heyman were not appropriate to calculate the animal fat levels in past diets in Australia.
68. In relation to Mr Mason’s weight, Dr English concluded that the only medical/scientific sense that can be made of a three kilogram weight gain over service is through a balance between energy expenditure and energy intake. Dr English noted that it could be concluded that Mr Mason greatly increased his energy output level through several activity levels to adjust to this increased food intake during service. However, in Dr English’s opinion, the more acceptable medical/scientific explanation of this energy gap is the difference between Ms Heyman’s and her estimates of the veteran’s pre-service energy requirement, with little change in his pre-service diet and activity pattern during service.
APPLICANT’S SUBMISSIONS
69. Referring to the agreed relevant Statement of Principles concerning Malignant Neoplasm of the Prostate, Instrument Number 84 of 1999 as amended by Instrument Number 69 of 2002, Mr Vincent submitted that the Applicant relies on Factor 5(c) of that Statement of Principles. This Factor involves increased animal fat consumption. Mr Vincent noted that the amending Instrument Number 69 of 2002 changed the definition of animal fat and proposed a more sensible definition which includes eggs.
70. Mr Vincent submitted that there were three elements that needed to be considered in this matter. Firstly, there needed to be an increased percentage in consumption of animal fat resulting from service over whatever went before service, although Mr Vincent submitted that it is not clear what is intended by the Instrument in relation to the 40 per cent increase.
71. Secondly, Mr Vincent submitted there was a threshold question of whether animal fat intake was 70 grams per day. Mr Vincent submitted that there was no dispute in this matter that consumption was well above 70 grams per day.
72. The third element, Mr Vincent submitted, requires that the increased consumption of animal fat was for 20 years before the clinical onset of Mr Mason’s cancer. Mr Vincent noted that the relevant period in Mr Mason’s case is between service and clinical onset in 1991. This is a period of up to 49 years, Mr Vincent submitted, of which only 20 years is needed to demonstrate increased consumption. Mr Vincent noted however that in later decades there has been substitution of other fat for animal fat. All expectations would therefore be that it would be easier to demonstrate the requirements in the earlier post-war period rather than a later period.
73. Mr Vincent submitted that the requirement of a 40 per cent increase in animal fat is what the case turns on. The two experts provided different opinions on that point. Ms Heyman opined that given the history provided, her professional knowledge and analytical tools there is a 40 per cent increase. Dr English does not find this to be the case.
74. Mr Vincent submitted that there are two sources of information in relation to the animal fat intake of Mr Mason. There is the personal history recounted by the Applicant and although this was limited, Mrs Mason does know something because she observed the household in which Mr Mason grew up. She lived in the household regularly 12 months after Mr Mason enlisted. Mr Vincent contended that this was timely enough and was still the middle of the war period. At this time the limitations were the same in that Mr Mason’s father’s employment was the same, although the family did not have a younger son paying board. Given the history provided by Mrs Mason, Ms Heyman was able to determine a dietary regime that satisfied her professional standards. Mr Vincent acknowledged the problems of looking at something 60 years ago, memory problems, and the veteran not being here. Despite that, Mrs Mason is someone that can remember a relevant domestic situation, and she paid attention to that situation. She was interested to take note, and did take note, Mr Vincent submitted. Mr Vincent submitted that given Mrs Mason’s age now of 78 years old, she presented as witness able to give coherent history.
75. Mr Vincent urged the Tribunal to consider that the nature of dietetics is vague and a rubbery science and can be hard to objectively confirm. Mr Vincent submitted that Ms Heyman is aware of the limitations and expressed them herself. Mr Vincent noted that if there was not any dietary information available, then recourse would have to be had to statistical information about what households were eating. However, in this matter there are facts available about the diet as observed by Mrs Mason and recorded and observed by Ms Heyman.
76. Mr Vincent submitted that it is uncontroversial that during service there is a variety of diets that Mr Mason would have been eating. Mr Mason’s diet in the later period of service contained 131 grams of animal fat per day, which was higher in fat compared to what other people were eating. Mr Vincent submitted that it is not necessarily the case that you have to show that Mr Mason ate more animal fat in service than he used to, but it must be shown that there is a connection between consumption of animal fat over time and Mr Mason’s service. Mr Vincent stated that the easiest way to make that out is by showing that Mr Mason did not eat much fat before service, he went to war and ate more fat, then came back and continued to eat more fat. Mr Vincent noted that Mr Mason did have a low fat intake pre-service. His service diet was significantly higher in animal fat content. Mr Mason’s post-war diet was again significantly higher than his pre-war diet, to the threshold level of 40 per cent.
121. The Tribunal notes that there is also an additional amount of animal fat that must be considered in terms of the condensed milk that Mr Mason ate post-service. Mrs Mason’s evidence, although somewhat confused on this point, was that she was not sure about the consumption of condensed milk in the Mason family pre-service, although they may have had it in their tea, but in terms of his post-service consumption of condensed milk, Mr Mason consumed a great deal of this substance. Mrs Mason’s evidence appeared to be that Mr Mason liked it so much, that he snacked on it off the spoon. Ms Heyman noted that condensed milk contains 1.8 grams of animal fat per teaspoon, and considering Mr Mason consuming three teaspoons per day, her estimate of the increased animal fat in his post-service diet would be 5.2 grams. Mr Vincent for the Applicant submitted that this took the increase in animal fat post-service compared to his pre-service level to a 49.7 per cent increase. In the Tribunal’s view, it is acceptable to add an amount of animal fat found in condensed milk of 5.2 grams of fat per day to Mr Mason’s post-service diet. However, the Tribunal has not calculated the percentage increase that would result from this additional animal fat, as Mr Mason has already reached the requisite 40 per cent increase, even at the minimum level of animal fat intake post-service as calculated by Ms Heyman.
122. Dr English has made some arguments as to the speculative connection between an increase in animal fat and service. She has noted that there are many factors that influence our food habits, which make it difficult to identify one factor as having an influence on what one eats for a minimum of 20 years. Ms Heyman also appeared to be of the view that there was more than one reason Mr Mason’s diet may have changed post-service, including the fact that post-service he was in a married relationship, head of the household and could choose what he wanted to eat and also the effect of his anxiety disorder on his dietary intake. Taking these views into account and the submissions, the Tribunal notes that there is a relationship between service and an increased animal fat intake in that Mr Mason has been shown, and it has not been disproved beyond reasonable doubt, that he had a significantly higher intake of animal fat on service which was maintained post-service. This would, in the Tribunal’s view, be a material contribution from service and a sufficient connection to service and is not discounted by the fact that there may be other factors which may have impacted on Mr Mason’s diet. There is also undisputed evidence of Mrs Mason that Mr Mason ate more fatty foods, including dairy products and meat, as comfort food for his nerves. This is supported by the fact that Mr Mason had an accepted condition of anxiety disorder. Mrs Mason’s evidence was Mr Mason was nervous and anxious from when he returned from service and he consulted a psychiatrist early in their married life. Dr Lambeth’s report (T8, p49) notes that Mr Mason told him he had experienced his psychological problems most of his adult life since the Air Force. Further statements from HMI Marsh (T10, p60), HJ Lunney (T10, p61) and WA Bailey (T10, p63) support the fact that this condition affected him from the years immediately following his return from the Air Force.
123. Considering the evidence and examining all the facts supporting the raised reasonable hypothesis above, the Tribunal finds that Mr Mason had a service-related increase in animal fat of at least 40 percent to at least 70 grams per day for at least 20 years prior to the onset of malignant neoplasm of the prostate. Therefore, pursuant to subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for finding Mr Mason’s death to be war-caused.
124. In relation to hypertension, this was not pursued by the Applicant at Hearing. As the Tribunal has found that Mr Mason’s death was war-caused and related to malignant neoplasm of the prostate, the Tribunal does not consider it necessary to pursue the issue of hypertension.
125. Accordingly, the Tribunal sets aside the decision under review and in substitution therefor the Tribunal determines that:
(1)The death of Mr Mason was war-caused pursuant to section 8 of the Act;
(2)Mrs Mason is entitled to Widow’s Pension with effect from and including 17 February 2001.
I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member
Signed: .......................................................................................
AssociateDate of Hearing 12 May 2003
Final Evidence/Submissions 23 June 2003
Date of Decision 22 September 2003
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Ms N Archer, Dibbs Barker Gosling
Representative for the Respondent Ms P Hook, Departmental Advocate
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