Mason and Repatriation Commission - [2002] AATA 1329

DECISION AND REASONS FOR DECISION [2002] AATA 1329

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1378

VETERANS' APPEALS DIVISION       )
           Re      UNA MASON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Rear Admiral A R Horton, AO, Member

Date23 December 2002
PlaceSydney

Decision The tribunal sets aside the decision under review and substitutes its own decision that the applicant has qualified for a War Widow Pension with effect from 18 September 1995.

[SGD]Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - War Widow Pension – malignant neoplasm of the prostate – whether veteran increased animal fat consumption by at least 40% to at least 70 grams a day for at least 20 years before clinical onset of malignant neoplasm of the prostate – whether increased consumption of animal fat related to operational service – Schofield Equation

Veterans' Entitlements Act 1986 ss 11(1), 120(1), (3), 157(2)(a)(ii), 177(2)(a)
Statement of Principles 84/99 as amended by 69/02 concerning malignant neoplasm of the prostate

Bull v Repatriation Commission (2001) 66 ALD 271
Deledio, Repatriation Commission v (1998) 49 ALD 193
Keenan and Repatriation Commission, Re [2000] AATA 707
Mason and Repatriation Commission, Re [2001] AATA 461
Towle and Repatriation Commission, Re [2000] AATA 706

REASONS FOR DECISION

23 December 2002 Mr M J Sassella, Senior Member Rear Admiral A R Horton, AO, Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Una Mason ("the applicant"), widow of deceased veteran, Peter George Mason ("Mr Mason", "the veteran"), for review of a decision of the Repatriation Commission ("the respondent") dated 25 August 1995 (T18) as affirmed on 22 September 1998 (T22) by the Veterans' Review Board ("the VRB"). The decision was that the death of the veteran was not causally related to his service in the Royal Australian Air Force ("the RAAF"). This meant that the applicant did not qualify for a War Widow Pension.
THE HEARING
The tribunal convened a hearing in this matter in Sydney on 17 October 2002. Mr N Dawson of counsel represented the applicant. Miss R M Henderson of counsel represented the respondent. The tribunal heard oral evidence from Mr W Friderich, a dietitian. The tribunal took into evidence the following documents:
Exhibit TD1 – Section 37 Statement for application number N98/1428 with associated documents (exhibits T1 – T24) provided by the respondent.
Exhibit A1 – Applicant's amended statement of facts and contentions, 16 October 2002.
Exhibit A2 – Statutory declaration of applicant, 1 October 2002.
Exhibit A3 – Letter dated 23 October 1998 from Miss D Coffey of the United Kingdom Ministry of Defence to the applicant.
Exhibit A4 – Statement by applicant, 21 October 1998.
Exhibit A5 – Report by Dr P Lyons-Wall, nutritionist, 26 March 2000.
Exhibit A6 – Letter dated 18 October 1998 from Mr A Copeland to the applicant.
Exhibit A7 – Letter to whom it may concern dated 16 October 1998 from Mr W Moffatt of "460" Squadron (RAAF) Association.
Exhibit A8 – Letter to whom…

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.

Continue reading Mason and Repatriation Commission

Details

AGLC: Mason and Repatriation Commission [2002] AATA 1329
Case: [2002] AATA 1329
Decision Date: 23 December 2002

CaseChat Overview and Summary

In the case of Mason and Repatriation Commission, the applicant sought a War Widow Pension on the basis that the veteran's death from a malignant neoplasm of the prostate was caused by his war service. The case was heard by the tribunal after being remitted by the Federal Court following an initial decision. The central issue was whether the veteran's increased consumption of animal fat during his service related to his operational duties and if this increase was a contributing factor to his prostate cancer.

The tribunal assessed this issue by examining the evidence presented, including the testimonies of the applicant and other witnesses, as well as expert evidence from a nutritionist. The evidence suggested that the veteran's consumption of animal fat increased significantly during his service, partly due to the availability of high-fat foods in the military diet. This increase was sustained post-war, influenced by both the variety of food and the quantity consumed, corroborated by the veteran's weight gain.

The tribunal found that the hypothesis connecting the veteran's prostate cancer to his service was reasonable and consistent with the relevant Statement of Principles. The increased animal fat consumption met the criteria set out in the Statement of Principles, which was a factor related to his service. The tribunal concluded that the veteran's malignant neoplasm of the prostate was indeed war-caused, thereby qualifying the applicant for a War Widow Pension.

The tribunal substituted its decision for the earlier decision, granting the applicant a War Widow Pension effective from 18 September 1995. The decision was made after thorough consideration of the evidence and the relevant legal framework, ensuring that the applicant's entitlement was properly assessed and recognised.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This application was being re-heard by the tribunal. A similarly constituted tribunal had heard the same case as application number N1998/1428 in October 2000. The tribunal handed down its decision in Re Mason and Repatriation Commission [2001] AATA 461 on 29 May 2001. That decision was appealed to the Federal Court from where, by consent, it was set aside and the matter was remitted without a hearing to the tribunal for re-hearing. FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS The tribunal makes the following uncontroversial findings. The applicant claimed a War Widow Pension on the basis that the death of the veteran was war-caused. As a dependant (under s 11(1) of the Act) of the deceased veteran, if he did die of a war-caused disease, the applicant would qualify for War Widow Pension. The basic issue, therefore, was whether the veteran's death was war-caused. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in her claim that a deceased veteran's disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206. The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran. As summarised by the respondent, the material provided to the tribunal pointed to a hypothesis connecting the death of the veteran from malignant neoplasm of the prostate to the service rendered by the veteran (ex R1, paragraph 26). The second step is to ascertain whether there is a relevant SoP in force. As noted in paragraph 4 above, the relevant SoPs are 84/99 and 69/02. The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service. The relevant factor in the SoP is:5.(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or This takes the tribunal to an assessment of the material before it. The tribunal has decided to adopt the material from its earlier decision as part of its assessment. The parties proceeded in the present application on the basis that that material was still before the tribunal and they referred to it in argument. That material was not criticised at the Federal Court. The relevant material from the earlier decision is found in paragraphs 7 – 15 of [2001] AATA 461:"7. The Applicant gave evidence both orally and at Exhibit A6 in respect of her late husband's dietary habits. She gave evidence from her own observations in the period from first meeting the veteran in 1940, but relied on her knowledge of common Australian eating standards and the recollections of old school friends for the earlier period in his life. She relied on advice from his peers and that provided by the Ministry of Defence, London (Exhibits A1 and A2) as regards the likely dietary standards and practices during his war service. Evidence from other ex-service personnel was provided to the Tribunal at Exhibits A3, A4 and A5, and oral evidence was given for the Applicant by Mr A Copeland and Mr B P Giles. Dr Lyons-Wall, a nutritionist, also gave expert evidence. 8. The veteran was born in 1924, his family living on an orchard in the Castle Hill area of Sydney. Mrs Mason suggested that his pre-war diet would have been similar to that common in the community at that time, cereal and fruit juice at breakfast, sandwiches for lunch and a cooked meal at dinner, but thought the fare would have been quite simple, particularly in respect of growing up during the depression. The veteran attended King's School as a day boy, and from other evidence, he did not partake of meals at the school. 9. In January 1943, and directly after leaving school, the veteran joined the RAAF. He undertook pilot training through the Empire Air Training Scheme, initially in Australia, before taking passage to the United Kingdom, where he was stationed from 27 January 1944 to 4 January 1946. On completion of his training at Royal Air Force ("RAF") establishments in the United Kingdom, he served on 460 Squadron (RAAF) with Bomber Command, participating in operations flying Lancasters over Europe. 10. Mr A Copeland provided a statement at Exhibit A5 and gave evidence by telephone. He knew the veteran from about 1930, and attended King's School with him, also as a day boy. They joined the RAAF together, and had parallel careers, Mr Copeland also flying Lancaster bombers with 460 Squadron. He considered the standard and variety of food in RAAF establishments as being better than that available to civilians; 'there was no rationing.' Eggs and food containing animal fats were readily available. Food during the voyage to England, and whilst serving in RAF establishments was 'quite different to that experienced at home and in the RAAF'; eggs cooked in rancid butter during the voyage, and lots of fried food and 'eggs dripping with fat', at RAF establishments. Whilst there were relatively few vegetables, aircrew in particular did not suffer the privations of the rationed civilian population in the United Kingdom. There was plenty of food, and an entitlement to additional meals, such as fried eggs and bacon and welsh rarebit before and after operations. He considered the night flying suppers as 'always welcome', and in response to questioning from the Respondent, he stated that aircrew ate large meals before operational flights. 11. Mr B P Giles provided a statement at Exhibit A3 and gave oral evidence to the Tribunal. He too knew the veteran from childhood and also attended King's School. He commenced pilot training before the veteran, but their courses were similar. He served in a RAF Bomber Command squadron flying Lancasters. In Exhibit A3 he stated that 'in both Australia and Britain, air force personnel, particularly aircrew, were well fed, …if perhaps not wisely in the light of present knowledge.' He saw aircrew as being young with good appetites and 'being plied with all types of animal fatty products.' He described meals to the Tribunal as often swimming in fat, with plenty of bacon, eggs, pork pies, fish and chips and fried bread, and usually on a self service basis. There was usually a desert such as pudding for one meal, but not much fruit. During flights, which lasted anywhere from about six to eight hours, aircrew carried limited flight rations such as chocolate, dried fruit and coffee, and each man carried an small emergency pack. Crew generally remained at their operating station. The Tribunal found Mr Giles to be a forthright and credible witness. 12. At Exhibit A4, 460 Squadron (RAAF) Association stated that the food regime was generally 'pretty much the same' (for aircrew at the different air stations) and 'principally contained a lot of "fatty" items'. The Association considers that the style of food served to Australian servicemen in the United Kingdom 'was, in most cases, foreign to their normal diets'.13. Dr P Lyons-Wall gave telephone evidence in support of her comprehensive report at Exhibit A7. In response to a request by the Applicant for professional opinion on a number of issues relating to the fat intake of the veteran, she drew the following conclusions:(a) the veteran consumed an average of 71 g of saturated animal fat for about 25 years after service, based on the evidence given to her by the Applicant, and hence met that component of the criteria in the SoP Instrument No. 191 of 1996 paragraph 1(b);(b) the veteran's animal fat consumption increased by over 200% during his RAAF service (to about 92 g) from that estimated (44g) as being consumed pre-war, this increase being related to the ready availability of foods high in animal fats. Hence, the veteran would meet that component of the criteria in Instrument No. 191 of 1996 paragraph 1(b); and(c) the increase in animal fat consumption during service contributed to the formation of a habit which continued post war for two reasons, namely a greater variety of food and an increase in the quantity, the latter being corroborated by the weight gain of the veteran.14. Dr Lyons-Wall addressed the evidence in support of her conclusions during examination in chief, conceding that she was perforce required to base some of her conclusions on the recollections of the Applicant and the evidence of other aircrew. In cross examination, she conceded that her conclusions were based on estimates, but given that the estimated consumption was for saturated fats, the total fat consumption (as defined in Instrument No. 191 of 1996), could well be higher to the extent of some 10g daily. She conceded that the veteran had a choice as to his diet post war, but reaffirmed her view that his war experience at an impressionable young age, with the introduction to a wider variety of food and an associated increase in consumption, had a significant influence on his eating habits thereafter, until about 1970. At this stage his children left home, and his wife was able to modify his diet to take account of medical advice. In response to the Tribunal, Dr Lyons-Wall indicated that the pre-war diet as evidenced by the Applicant accorded with her own research and the views she recalled of her parents. She agreed that Australians pre 1960 or so basically followed a British diet, but ate less fried food and fat.15. Returning to the medical history of the veteran, a composite report was prepared by Dr H M Learoyd, Consultant Urologist, on 7 March 1996 (T20) in which he detailed the 'relationship between Mr Mason's war service and his stone formation'. This indicates that in 1976, a calculus was treated, with a further renal calculus being treated by operation in 1970. A number of urinary and bladder problems occurred spasmodically until August 1993, when the veteran was diagnosed as having carcinoma of the prostate. The death certificate shows that he died on 15 May 1995 of prostate cancer. Dr Learoyd postulated that the development of prostatic obstruction 'was an immediate consequence of his renal surgery and the ultimate progression to malignancy of the prostate was related to the trauma of the numerous endoscopic procedures'. Thus he considers it reasonable to state that the veteran's war service ultimately contributed to his death from prostate carcinoma. The Veteran's Advocacy Service subsequently requested the RMA to investigate the hypothesis developed by Dr Learoyd, in accordance with section 196E of the Act. The advocate for the Applicant believes this investigation has been undertaken, but no relevant amendment to the Statement of Principles for Malignant Neoplasm of the Prostate has eventuated."

Decision

Reasons for decision

The tribunal has found the veteran's malignant neoplasm of the prostate to have been war-caused. This means that the applicant succeeds in her application and is entitled to a War Widow Pension. The date of effect is 18 September 1995.DECISION The tribunal sets aside the decision under review and substitutes its own decision that the applicant has qualified for a War Widow Pension with effect from 18 September 1995.I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Rear Admiral A R Horton, AO, MemberSigned: ..................................................................................... AssociateDate of hearing 17 October 2002 Date of decision 23 December 2002Counsel for the applicant Mr N Dawson Solicitor for the applicant NSW Legal Aid Commission Counsel for the respondent Miss R M Henderson Solicitor for the respondent DVA Advocacy Service

Ratio Decidendi

Legal Principle Established

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