Merle Fay French and Repatriation Commission

[2013] AATA 7

[2013] AATA  7

Division	VETERANS' APPEALS DIVISION
File Number(s)	2010/2086
Re	Merle Fay French
APPLICANT
And	Repatriation Commission
RESPONDENT

Decision

Tribunal	Ms A F Cunningham (Senior Member)
Date	10 January 2013
Place	Hobart

The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

VETERANS’ ENTITLEMENTS – war widow’s pension – operational service – death from prostate cancer – whether veteran’s service led to change in diet of high animal fat content – causal link to service not established – decision under review affirmed

Veterans’ Entitlements Act 1986, ss 8, 13, 120(1), 120(3), 120A

Statement of Principles, Instrument No 28 of 2005, Malignant Neoplasm of the Prostate

Repatriation Commission v Deledio (1998) 83 FCR 82

East v Repatriation Commission (1987) FCA 242; (1987) 16 FC R 517

King v Repatriation Commission (2012) AATA 725

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant, Mrs French is the widow of the late veteran, Ian Max French who passed away on 28 April 2009. The cause of death as stated on the death certificate was cancer of the prostate. Mrs French lodged a claim for a war widow’s pension contending that her late husband's death was due to his service. The Repatriation Commission decided that the death of Mr French was not related to service and rejected the claim for War Widows pension. The veterans review board affirmed the Commission’s decision on 5 March 2010. Mrs French now seeks a review of the Commission’s decision by the Administrative Appeals Tribunal.

   The Issue

2. It is not in dispute that the cause of Mr French’s death was cancer of the prostate which was first diagnosed in June 2007.  The issue for the Tribunal to determine is whether Mr French's death from cancer of the prostate was war caused.

   Background

3. Mr French was born on 11 February 1924 and served in the Australian Army from 6 January 1942 until 22 March 1946. He had operational service in the South West Pacific in Morotai and Tarakan.

   Statutory framework

4. Section 13 of the Veterans’ Entitlements Act 1986 (the VE Act) provides that where the death of a veteran is "war caused", the Commonwealth will be liable to pay a pension by way of compensation to the dependents of the veteran. Section 8 of the VE Act sets out when an injury or disease is taken to be war caused.

5. As the veteran had operational service, the question of whether his death was "war caused" is to be assessed according to the "reasonable hypothesis" standard of proof set out in sections 120(1), 120(3) and 120A of the VE Act. I must find that the veteran's death was war caused unless I am satisfied, beyond reasonable doubt that there is no sufficient ground for making that finding. I would be so satisfied if the material before me does not raise a reasonable hypothesis connecting Mr French‘s prostate cancer with his service.

6. Section 120A(3) provides a reasonable hypothesis connecting a veteran's death with service will be reasonable only if there is in force a Statement of Principles (SOP) that upholds the hypothesis.

7. Mrs French relies on SOP Instrument Number 28 for Malignant Neoplasm of the Prostate. Clause 4 states that at least one of the factors listed in clause 5 of the SOP must be related to the relevant service rendered by the person. The factor relied upon by Mrs French is 5(c):

   "increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostrate".

8. It is accepted that the Full Court's four step process as outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 is the approach to be taken when applying the above provisions. Those four steps can be summarised as follows:

   Step one - whether the material points to a hypothesis connecting the death with the circumstances of the veteran’s service

   Step two - if so, is the death the subject of an SOP?

   Step three - if so, is the hypothesis upheld by the relevant SOP?

   Step four - is the Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war caused?

   Contentions

9. The hypothesis identified was that during the relevant period being between 1982 and 2007, Mr French had developed a preference for foods with a high animal fat content as a result of his period of service.

10. On behalf of Mrs French, Mr Stanton contended that the evidence supports a connection between Mr French's death from prostate cancer and his operational service in a number of respects. Firstly, that due to the monotonous nature of the food consumed during service, for flavour and satisfaction Mr French chose foods high in animal fat. Secondly, because the food consumed during service had a higher fat content than his pre-service diet, Mr French developed a preference for foods high in animal fat post-service. Thirdly, the food consumed during operational service in Morotai and Tarakan was approximately 30g higher in animal fat than the Australian rations, creating a preference for higher animal fat foods on return to Australia. Fourthly, the food consumed during service in Australia and overseas was more attractive than Mr French's pre-service diet, creating a desire for a greater variety of foods with a higher animal fat content than his pre-service diet.  Fifthly, for a period of three weeks Mr French either consumed or was aware of US rations which he perceived to be more attractive than Australian service food, creating a desire for foods with a higher animal fat content. Sixthly, Mr French faced periods of food deprivation or insecurity during service, creating a preference for foods with a high animal fat content.

11. Mr Stanton submitted that any one of the above contentions either alone or in combination was sufficient to raise the connection between Mr French’s service and his death from prostate cancer.

12. In his closing submissions Mr Rudge advised that the respondent accepted that the evidence satisfies the SOP Factor 5(c) requirement for a 40% increase in animal fat consumption and to a level of at least 50gm/day during the relevant period. What remains in contention he said, is the required connection between Mr French’s increased animal fat consumption and his service.

    Evidence

13. Oral evidence was given by the applicant, Merle Fay French, her son Maxwell John French, her daughter Wendy French and Dr Dianne Hope Volker, consultant dietician. The only oral evidence given on behalf of the respondent was from Major Ian Hawke who served with the Australian Army between 1958 and 1987 and was a researcher for the Writeway Research Service Pty Ltd Report dated 28 January 2011 which was tendered in evidence. The T Documents were tendered in evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

14. Mrs French said that she first met her husband when he returned to Tasmania in 1946 and they were married on 27 March 1948. She knew little about his early life but understands that he grew up on a farm in the north-west of Tasmania during the depression. Mrs French said that her husband did not really discuss the type of food consumed in his early life but had said that he was glad for the rabbits and fish that were readily available. Following the death of his father when Mr French was 11 years of age, he went to live with his aunt at Ringarooma for two years and later returned to the farm for a short period.

15. Although only 17 years of age in 1941, Mr French claimed to be 19 years of age in order to qualify for enlistment. It was Mrs French’s evidence that her husband spoke little about his period of service and did “not specifically” discuss the food he consumed during service apart from saying that he found the food monotonous.  Mrs French said that her husband had indicated that American rations were superior to those provided for the Australian servicemen but she had no knowledge as to whether he had ever tasted any American rations. It was Mrs French’s evidence that she really did not know what food her husband had consumed during service.

16. Mr French was working with the Public Works Department when the couple married in 1948.  Initially they lived with Mrs French's parents at Devonport for between six and 12 months and moved to Railton when Mr French purchased a truck carrying business. They operated the business for approximately 2 years and Mrs French helped with the accounts. After selling the business Mr French worked as a driver and later as a crane operator with Goliath until he retired.

17. Mrs French said that her husband liked to eat "fatty foods like most people in those days”. Mrs French prepared food consumed by Mr French in the home which included a daily cooked breakfast and baked meals once a week.  Mrs French agreed that the food that she and Mr French had consumed was similar to that consumed by everyone else at the time and included lamb, roasts, eggs and bacon, chops fried in dripping. Mr French also enjoyed desserts with cream and consumed bread-and-butter with most meals. There was a short period of approximately 12 months following their marriage when Mr French's employment required him to camp away from home during the week.  During this period Mrs French said that she was unaware of the food that he consumed.

18. Mrs French was referred to the Daily Eating Pattern Table which was included in Dr Volker’s report dated 20 July 2011.  She said that the report had been prepared by Dr Volker during a telephone conversation with herself and her daughter which she subsequently signed on 18 July 2011. Several photographs were tendered in evidence which showed how Mr French's weight had increased between 1980 and 1998.

19. It was Mrs French’s evidence that her husband was a keen fisherman and had been the secretary for the Freshwater Angling Association during the time when he was working at Goliath.

20. As a crane operator with Goliath, Mr French work three shifts over a three-week period with days off at the end of each seven-day shift. The first being from 4.00 pm until midnight, the second shift was between midnight and 8.00 am and the third shift between 8.00 am and 4.00 pm. When he was working the third shift he would have lunch at work which generally comprised sandwiches or leftovers from home. It was Mrs French’s evidence that it was more usual for Mr French to take a cut lunch from home. It could be months between him having a canteen lunch at work which was generally related to the circumstances at home at the time. Mr French's cut lunch would usually comprise three sandwiches, one of which he would consume mid-morning. The sandwiches would include cheese, tomato, lettuce, leftover corned beef or cold lamb, and perhaps a cold sausage from the previous evening's meal.

21. When Mr French was diagnosed with diabetes in 2003 he tried to reduce his weight by reducing his fat intake which Mrs French said he found very difficult.

22. Mrs French's son, Max French recalled fishing trips with his father and confirmed that the family ate the caught fish at home following these trips which occurred approximately 5 times a year. Max French left home when he was 16 years of age. He believed that the family’s diet was similar to that consumed by other families at the time.

23. Wendy French recalled her father stating that “if it had not been for the yanks they would have starved”.  However she could not say whether her father had said that he had consumed US rations. She also recalled Mr French saying that if it had not been for the fish and rabbits that the family had been able to catch when they were young, they wouldn't have eaten. On one occasion her father had driven her past the farm where he had lived as a child and pointed out the fields where they had grown cauliflowers and potatoes.  It was Ms French’s evidence that her father was a big man and a big eater.  He always consumed a cooked breakfast and a big dinner which included a slice of bread as well as dessert. She said that when he was on shift work, there would be weeks when she did not see him. She lived away from home between 1976 and 2003.  She also recalled her mother often cooking fish with a white sauce and consuming trout for breakfast that her father had caught. She recalled the large tin in which his work lunch was packed.

24. Dr Dianne Volker gave oral evidence on the basis of a Report that she had prepared on Animal Fat Consumption of the late Ian Max French which was tendered in evidence. The Report contained an analysis of Mr French’s pre-service, service and post-service diets.

25. Dr Volker noted that there was no record of Mr French's food consumption in the pre-service period (1938–1941) and that Mrs French agreed to accept the results of a nutrition survey conducted in Australia at the end of the depression as representative of the probable consumption of her late husband.  The 1936–1938 Survey of Household Food Budgets recorded the daily animal fat and energy intake of 126 g of animal fat and 15.7 mj of energy on the average intake that adult males (14–59 years of age).

26. With respect to the service dietary record (1941–1946), Dr Volker used the rations scales and the Writeway war records to estimate the late veteran's intake at 124 g animal fat and 14.04 mj of energy per day.

27. On the basis of the dietary information provided by Mrs French and her daughter Wendy, Dr Volker determined that Mr French's animal fat and energy intake increased to 193.5 g/day and 16.1 mj/day.  This represented an increase in animal fat of 54% and 67.5 g/day which exceeds the minimal increase required of at least 40% to at least 50 g/day as set out in the SOP Instrument 28 of 2005.

28. There were some variations between the details contained in the post-service Daily Eating Pattern Report prepared by Dr Volker during her telephone consultation and Mrs French’s evidence to the Tribunal. The variations were put to Dr Volker who estimated that Mr French’s animal fat consumption would in fact be higher as a result of the butter used on his luncheon sandwiches.  There being no evidence to the contrary, Mr Rudge was prepared to accept Dr Volker’s evidence that the 40% increased animal fat consumption level of the SOP was easily satisfied.

29. Dr Volker was asked what impact Mr French's service diet would have had on his food preferences. Dr Volker understood that Mr French's pre-service food intake consisted mainly of vegetables with some wildlife which would have been very low in fat and concluded that his pre-service diet was very basic and perhaps tedious. In the army he would have been exposed to a greater range of core foods and his diet in the South-West Pacific would have included much more animal fat. She considered that this diet would have been more appealing than the previous temperate rations scale.

30. In her report Dr Volker stated:

    "Reasons for increases in intake of animal fat can be attributed to the increased availability of meat in the post-war years compared to the war years, lifestyle and dietary changes related to married life, more money available to spend on food and the ability to choose the eating pattern were inadequate or that US rations were available to front-line Australian troops in either Tarakan or Morotai”.

31. Major Hawke’s written report included a table of the daily animal fat content of Australian diets/rations in World War 2 era which he said showed that Mr French’s animal fat intake during his period of overseas service would have been approximately 10 g per day higher than the average Australian civilian diet. During his service in Australia his fat levels on average would have been lower than the civilian average.

32. During his evidence before the Tribunal, Major Hawke conceded that it is possible that Mr French may have had access to US rations but said that it is not known whether he in fact consumed the rations or was just aware of their content.  Major Hawke conceded that due to operational requirements Mr French may have missed a meal or two at times, he said however that the divisional records did not indicate that there was any shortage of rations but rather that the operation was well supported and well supplied.

    Consideration and Findings

33. The hypothesis advanced on behalf of Mrs French is that Mr French had developed a preference for foods high in animal fat as a result of his period of service.

34. It was Dr Volker's expert opinion that a reasonable hypothesis can be raised which connects Mr French's death from malignant neoplasm of the prostate with the circumstances of his operational service in the army during WW2.  Although much of Dr Volker’s evidence was based on assumption, speculation and indirect information regarding Mr French’s pre-service diet, I do not consider that there is no material pointing to the hypothesis advanced on behalf of Mrs French.

35. I do not however, accept Dr Volker's opinion that the hypothesis raised is necessarily a reasonable one. This is a question to be determined by the Tribunal by assessing the available evidence in accordance with the applicable legislative provisions and authoritative case law.

36. The Full Court in East v Repatriation Commission (1987) FCA 242; (1987) 16 FC R 517 considered the consequences of the 1985 amendment to section 120(1) of the VE Act and stated at page 532:

    “The means chosen to give effect to that intention were apt. The adoption of Brennan J’s notion of a reasonable hypothesis [see dissenting judgment of Brennan J in O’Brien] meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link – even prima facie – as a fact. The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and  Repatriation Commission  (1986)5AAR253at254-255:

    
    

    “A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.

    
    

    ...

    
    

    The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact...”

37. The Full Court continued at page 533:

    "A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of possibilities."

38. As the Tribunal stated in King v Repatriation Commission (2012) AATA 725 at paragraph 26 after referring to the above paragraph in the East decision:

    “It does not follow, however, merely because a hypothesis is “not obviously fanciful or not possible, or not incredible or tenable or not too remote or not too tenuous”, that it is reasonable. It must be more than merely plausible; it may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832 at [5].

39. Dr Volker's statement that Mr French's "army service undoubtedly influenced the late veteran's food environment" and that "food insecurity influenced his eating behaviour and food choices" is in my opinion not supported by the evidence. Dr Volker went on to refer to food deprivation that Mr French experienced pre-service and at times during service for which there is no supportive evidence. Dr Volker agreed that there is no record of Mr French's food consumption pre-service and she based her opinion on a supposedly meagre diet of game and fish. The service records however indicate an average body weight on enlistment which does not suggest pre-service food deprivation.

1. Nor is there evidence of food deprivation or food insecurity during service. Indeed Major Hawke's evidence was that the available records indicate that Mr French’s overseas operation was well supported and well supplied. Although it is possible that Mr French had access to US rations at some stage during his three-week overseas deployment, there is no evidence that he did and I cannot be satisfied that access to US rations influenced his subsequent post-service diet.

2. Although there were some inconsistencies regarding Mr French's post-service diet, I can accept that Mr French's preference was for a high animal fat diet. It was accepted by all witnesses however, that this diet was one commonly consumed at the time prior to more recent knowledge of the health hazards associated with a diet rich in animal fat. It was not until Mr French was diagnosed with diabetes in 2003 that any steps were taken to reduce his high animal fat diet and his weight.

3. It was Dr Volker’s opinion that the circumstances of service have the potential to influence a veteran’s dietary habits. I am not satisfied that there is any causal connection between Mr French’s choice of a high animal fat diet post-service and his period of service. I consider that Dr Volker’s opinion of a causal connection is largely based on assumption and speculation and not evidence.

4. Further, I find that there is no satisfactory evidence supporting the contentions raised by Mr Stanton which are referred to in paragraph 10 above. Whilst I accept that Mr French developed a preference for foods high in animal fat post-service, I am not satisfied that this preference arose out of, was attributable to, or was causally connected to his service. It is my opinion that it is merely a possibility, not supported to or even pointed to by the evidence.

5. I find that the hypothesis raised is based on assumptions and speculation and is untenable. It cannot therefore be reasonable. For the above reasons I am satisfied beyond reasonable doubt that there is no causal connection between Mr French's death from prostate cancer and his service. The decision under review is accordingly affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Associate

Dated    10 January 2013

Date(s) of hearing	3 October 2012 and 7 November 2012
Counsel for the Applicant	Mr Ken Stanton
Solicitors for the Applicant	Bartletts
Counsel for the Respondent	Mr Ken Rudge
Solicitors for the Respondent	Repatriation Commission