Mullins and Repatriation Commission - [2002] AATA 802

DECISION AND REASONS FOR DECISION [2002] AATA 802

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/96

VETERANS' APPEALS DIVISION       )
           Re      PATRICIA MULLINS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr G A Mowbray

Date2 August 2002
PlaceCanberra

Decision      For reasons given orally the Tribunal sets aside the decision under review being the Repatriation Commission's decision dated 28 July 1998, and in substitution therefor decides: 1. The death of Reginald Mullins from prostate cancer is war-caused for the purposes of the Veterans' Entitlements Act 1986. 2. The date of effect is 27 April 1998.
  ..............................................
  Member
CATCHWORDS
VETERANS' AFFAIRS - widow's pension - death from prostate cancer - whether war-caused - whether reasonable hypothesis raised - increase in consumption of animal fat

Veterans' Entitlements Act 1986 ss 8(1)(b), 120, 120A
Statement of Principles No. 84 of 1999 - Malignant Neoplasm of the Prostate

Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144
Repatriation Commission v Bey (1997) 79 FCR 364; 149 ALR 721; 47 ALD 481; 26 AAR 298
Bull v Repatriation Commission (2001) 188 ALR 756; 66 ALD 271; 34 AAR 326
Connors v Repatriation Commission (2000) 59 ALD 61
Re Bailey and Repatriation Commission [2002] AATA 444
Re Keenan and Repatriation Commission [2000] AATA 707
Re Karey and Repatriation Commission [2002] AATA 166

REASONS FOR DECISION

12 September 2002 Mr G A Mowbray

History of the Application

On 23 July 1998 Patricia Mullins completed a claim for war widow's pension. Her husband Reginald Mullins had died on 3 February 1996 from "metastatic prostatic carcinoma", that is cancer of the prostate. In the claim Mrs Mullins related her husband's death to his service in several ways including physical and psychological strain, alcohol intake, smoking, his diet including "copious quantities of dairy products" and retention of body fluids for prolonged periods.
On 28 July 1998 the Repatriation Commission decided that Mr Mullins' death was not related to service. On 4 September 1998 Mrs Mullins' representative requested further consideration. This was taken to be an application to the Veterans' Review Board. On 17 February 1999 the Veterans' Review Board affirmed the decision under review and the Tribunal received an application for review on 6 April 1999.
The main hearing for this matter was held on 13 June 2002. At that hearing Mrs Mullins was represented by Mr Crabb of Snedden Hall & Gallop and the Repatriation Commission was represented by Mr Modder of the Department of Veterans' Affairs. Oral evidence was completed on that occasion but there was insufficient time for oral submissions. Mrs Mullins' written submissions were received on 19 June 2002 and the Commission's were received on 30 July 2002. Following receipt of written submissions a further hearing was held on 2 August 2002. On this occasion Mr Modder appeared by telephone from Sydney, assisted by Ms McConnell. Mr Crabb appeared in person.
Oral reasons for decision were given later on 2 August 2002 setting aside the decision under review. On the same day the Tribunal received a request from Mr Modder for written reasons for the decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 from Mr Modder. Accordingly these written reasons have been prepared based on the oral reasons with appropriate minor editing.
Background
Mr Mullins was born on 28 August 1923. He enlisted in the Royal Australian Air Force on 31 January 1942 and was discharged on 29 March 1945. All of this period is operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act). From March 1943 to February 1945 he served in England. He met Mrs Mullins there and they married on 6 April 1946. He worked as a pilot for Qantas for over 30 years retiring in 1976 at the age of 53.
Prior to his death Mr Mullins had had solar keratoses accepted as related to his service. According to the Commission's records he was also eligible for treatment for "malignant neoplasia-adenocarcinoma of prostate" even though it was not considered to be service related.
Issues
There is one substantive issue before the Tribunal, which is whether the death of Mr Mullins was war-caused for the purposes of section 8(1) of the Act.
Legislation
The relevant sections of the Act are
"7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
…"
"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:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
"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.
…
(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.
…"
"120A Reasonableness 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;
…
….
(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.
(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."
There is no dispute that there is a relevant Statement of Principles, namely Instrument Number 84 of 1999 concerning malignant neoplasm of the prostate. The following clauses are relevant
"Kind of injury, disease or death
2.(a) This Statement of Principles is about malignant neoplasm of the prostate and death from malignant neoplasm of the prostate.
(b) For the purposes of this Statement of Principles, "malignant neoplasm of the prostate" means a primary malignant neoplasm of the cells of the prostate gland, attracting ICD-10-AM code C61. This definition excludes soft tissue sarcoma, non-Hodgkin's lymphoma and Hodgkin's disease.
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting… death from malignant neoplasm of the prostate with the circumstances of a person's relevant service are:
…
(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 neoplasms of the prostate
…
Other definitions
8.For the purposes of this Statement of Principles:
"animal fat" means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;
…"

Evidence

Oral evidence was taken on 13 June 2002 from Mrs Mullins, Ms Carole Richards, an accredited practicing dietitian and Mr Willi Friderich, a consultant dietitian. The documentary evidence consisted of the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T17), Exhibits A1 to A7 tendered by the Applicant and Exhibits R1 to R9 tendered by the Respondent.
Consideration of Issues and Findings
Standard of proof or satisfaction
It is common ground that in assessing the question of entitlement relating to operational service the standard of proof or satisfaction is that set out in sections 120(1) and (3) as modified by section 120A of the Act. The relationship between the standard of proof, Statements of Principles and how they must be applied by a decision maker has been considered by the Full Federal Court Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8; 49 ALD 193 at 206; 27 AAR 144 at 159-160
"[T]he course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) 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 that person is as follows:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11)…
3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
The reasonable hypothesis test has been considered in numerous cases. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372-3; 149 ALR 721 at 730-1; 47 ALD 481 at 489-91; 26 AAR 298 at 306-7 the Full Federal Court stated
"While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker…
…
…The respondent's contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and his war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act towards substantial justice does not displace the Tribunal's obligation to act in accordance with the law."
In Bull v Repatriation Commission (2001) 188 ALR 756; 66 ALD 271; 34 AAR 326 the Full Federal Court said
"17.     In East, after an examination of the early legislation and other legislative history, of the background to the amendments to the Repatriation Act in 1985, in particular the decision of the High Court in Repatriation Commission v O'Brien (1985) 155 CLR 422, of the surrounding Parliamentary material to those 1985 amendments, of the drafting of the Act in 1986 and of the relationship between s 120 and that background, the Court said the following:
… The adoption of Brennan J's notion of a reasonable hypothesis 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) 5 AAR 253 at 254-255:
"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. Were it otherwise, it would no longer be a hypothesis but it would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a [sic] least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."
We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. [Emphasis added in Bull.]
18.      It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above.
19.      Before proceeding any further two comments are appropriate. First, it should be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury or death with the circumstances of service. Secondly, the phrases used by the Court such as 'not obviously fanciful', 'not impossible', 'not incredible', 'tenable', 'not too remote' and 'not too tenuous' are useful elucidators of the meaning of 'reasonable'. This is especially so given the subtle range of meaning of the words and phrase 'reasonable', 'unreasonable' and 'not unreasonable'. Much depends on context and purpose. However, the words of elucidation should not be substituted for the words of the statute: see generally the comments of the Full Court in National Mutual v Campbell (2000) 99 FCR 562 at 571, [36]. What is required of the decision-maker by subs 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.
…
21.      There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509."
Connors v Repatriation Commission (2000) 59 ALD 61 stands for the proposition that each individual element of a factor must be pointed to by the material before the decision maker.
Uncontentious matters
The following facts are not contested by the Commission and I find accordingly

the clinical onset of Mr Mullins' prostate cancer was in May 1990
Mr Mullins died from prostate cancer on 3 February 1996
Mr Mullins consumed at least 70 grams of animal fat per day for at least 20 years before the clinical onset of prostate cancer.

Steps 1 and 2 of Deledio

Mr Modder for the Commission accepts that steps one and two of the four steps set out in Deledio have been satisfied. With regard to step one, the hypothesis raised as modified from that set out in the submissions of Mrs Mullins is as follows
(a)because of and during his operational service, Mr Mullins experienced an increase of animal fat consumption in his diet by at least 40 per cent over his pre-service animal fat consumption to at least 70 grams per day of animal fat diet. It rose from 100 grams pre-war to 148 grams per day during service in the UK and eventually to 200 grams per day post-war until Mr Mullins changed his diet in 1990. That is, there was a 48 per cent increase from the pre-war diet to the war diet and 100 per cent increase from the pre-war diet to the post-war diet
(b)Mr Mullins developed a taste for the animal fat diet as he regarded this type of food as comfort food and learnt that this type of food was good as energy food
(c)Mr Mullins continued with the animal fat diet for at least 20 years before the clinical onset of malignant neoplasm of the prostate in May 1990.
Considering all the material before me I agree that step one is satisfied.
In relation to step two it is agreed that there is a relevant Statement of Principles in force, namely Instrument Number 84 of 1999.
Step 3 of Deledio
At this stage the Tribunal must examine all the material before it to determine whether it points to the hypothesis raised as being a reasonable one. The Tribunal must not at this stage make findings of fact but the hypothesis must not be obviously fanciful, impossible, incredible or too remote.

Factor 5(c) from the Statement of Principles relevantly provides
"The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting… death from malignant neoplasm of the prostate with the circumstances of a person's relevant service are:
(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 neoplasms of the prostate"

The related definition is

"animal fat" means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products"

The following elements of the factor need to be pointed to by the material before the Tribunal

increasing animal fat consumption by at least 40 per cent compared with pre-service levels
increasing animal fat consumption to at least 70 grams a day
both the 40 per cent increase and 70 grams per day must last for at least 20 years continuously before clinical onset of prostate cancer.

In Re Bailey and Repatriation Commission [2002] AATA 444 Member Campbell said of this test
"62.     The term "animal fat" is defined. The Tribunal concludes that the phrase "at least" indicates the smallest admissible amount, ie 40 per cent, 70 grams a day and 20 years are the smallest admissible amounts in this matter. The Tribunal adopts the definition of Kenny J in Connors v Repatriation Commission [[2000] FCA 783] on this issue. Similarly, the Tribunal follows the definition of "daily" as meaning "just about daily" (Gorton v Repatriation Commission (2001) 63 ALD 723 which was approved by the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321).
63.      The Tribunal does not consider that the phrase at least 70 grams a day means any more or less than at least 70 grams a day or just about every day, for it is obviously impractical, let alone realistic to consider that over a period of 20 years, there will not occur occasional circumstances in which an individual is unable to eat for a whole variety of reasons, including sickness, accident and fasting, again for a variety of necessary reasons.
64.      However, while the Tribunal accepts that daily means just about every day, the Tribunal is of the view that where the factor speaks of increasing animal fat consumption by at least 40 per cent, and to at least 70 g/day for at least 20 years, the proper interpretation is that an increase by a minimum of 40 per cent, to at least 70 g/day must continue for at least 20 years. It would be the Tribunal's construction that the first two elements of the factor, namely at least 40 per cent, and to at least 70 grams of animal fat per day (the phrase "at least" equating to the smallest admissible amount) must continue to exist over 20 years, with both the at least 40 per cent increase and at least 70 grams being consumed each day or just about each day.
65.      The Tribunal, in noting [sic] the Applicant's submission that the appropriate construction of the two elements would permit an average increase of at least 40 per cent per day over a 20 year period…
66.      The Tribunal rejects the Applicant's submission as being inconsistent with the language and requirements of the factor. In so stating, the Tribunal considers that if an average figure of at least 40 percent would suffice, the word "average" would have appeared in the factor elements. Further the Tribunal expresses a similar difficulty with a 20 year period being created over a time frame of 31 years. The Tribunal, while noting that the word "continuous" is not present in the factor elements, concludes that such an interpretation must be implied, otherwise there would not be such a focus on the daily intake and the increase in the daily intake, and the factor element would speak of the cumulative intake of animal fat as opposed to the daily intake…"
There is a further element to the three that I have referred to at paragraph 21 above from factor 5(c). The material must also point to the increased animal fat consumption being related to the relevant service.
Change in animal fat consumption: pre-service diet
Mrs Mullins, Ms Richards and Mr Friderich provided evidence on Mr Mullins' pre-service diet. There was also the documentary evidence of Dr Ruth English.
Although Mrs Mullins did not know her husband before his operational service, she had spoken with Mr Mullins' sister who has since died. From this and from conversations with her husband Mrs Mullins was aware that he had been a vegetarian. She was told that he "had eaten mostly vegetables as a main course" (Exhibit A2, see also Exhibit A3)
Ms Richards' evidence was that on the information available Mr Mullins' pre-war diet of animal fat included 79 to 87 grams of animal fat per day. However she considered the information on Mr Mullins pre-service diet to be "rubbery". It would be appropriate to take the average animal fat diet of an Australian citizen prior to the war and reduce it by approximately 20 grams per day, given that Mr Mullins did not consume red meat. Ms Richards referred to evidence of pre-war civilian diets in Dr English's report of August 1998 (Exhibit R5). Dr English's report provided a range of 114 to 130 grams per day.
An alternative method of assessment, using the average animal fat intake of adult males in Australia in lieu of actual evidence of a veteran's pre-war animal fat intake, was approved by the Tribunal in the matter of Re Keenan and Repatriation Commission [2000] AATA 707 presided over by President O'Connor
"43. It was agreed, and the Tribunal accepts in the absence of actual evidence, that the veteran's pre-war animal fat intake was most likely to be the same as the average animal fat intake of adult males in Australia, as measured in 1936 – 1938, namely 122gm/day: exhibit R5."
Mr Crabb submitted that given the findings of Ms Richards the Tribunal should accept a figure of 100 grams per day animal fat content for Mr Mullins' pre-war diet, that is 122 grams average less approximately 20 grams for red meat.
The Commission relied on Mr Friderich's report and evidence and his analysis suggesting a figure of 149 grams of animal fat per day. It attacked Ms Richards' estimates because Mrs Mullins did not know Mr Mullins before the war. It was said that Mrs Mullins' evidence was not reliable on this point and therefore there was no evidence from which such an estimate could be made.
The Commission contended that a diet containing 100 grams of animal fat per day would place Mr Mullins in the bottom 8 per cent of the Australian adult male population (see Exhibit R9). It was contended that his vegetarian diet would also have had added animal fats, especially for cooking. Mr Friderich's evidence was that the pre-service diet calculated by Ms Richards would under-estimate the animal fat intake of an active man of Mr Mullins' build by approximately 35 to 38 per cent.
Change in animal fat consumption: operational service diet
Mrs Mullins gave evidence that she met her husband in 1944 and knew him well during his stay in England. She travelled to Australia to marry him in 1946. Her husband had returned to Australia in 1945. Mr Mullins ate many of his meals on the airforce base in England but would discuss the content of his meals with her. Mrs Mullins also provided evidence of meals that she and Mr Mullins ate together in England.
Mrs Mullins referred to sortie meals of bacon and eggs provided to pilots prior to or on return from operations. She also recalled that air crews received rations of sandwiches and chocolate for an in-flight meal, which they consumed early in the flight. Messrs Tallents and Wade, both ex-RAAF members with 460 Squadron, stated that a meal of bacon and eggs was served at the time of an operational flight (Exhibits A5 and A7). Mr Cullen said that flying rations were issued to the flight crew, which included, "a small bar of dark chocolate and a small can of orange juice" (Exhibit A6). During his period of war service in the UK Mr Mullins flew 30 sorties over a period of 112 days from 24 February 1944 to 15 June 1944.
Ms Richards calculated that Mr Mullins' animal fat intake for non-operational flying days during the period he spent in the UK was an average of 146.5 grams per day. On operational flying days his intake increased by 38 grams per day.
Furthermore, the use of comfort foods by Mr Mullins to help him deal with stress was consistent with Ms Richards' experience of veterans with similar food preference habits. To this extent Ms Richards' evidence was supported by the findings in Dr English's report.
Mr Crabb submitted that

Mr Mullins' total war service in the UK was for 712 days
for 682 of these days Mr Mullins consumed an animal fat diet of 146.5 grams per day and for the remaining 30 days he consumed an animal fat diet of 184.5 grams per day. This gave an average animal fat diet of 148.1 grams per day
this was on average at least a 46 per cent increase each day on his pre-service animal fat diet
Mr Mullins developed a habit of consuming comfort foods because of and during his war service.

The Commission through its counsel referred again to Mr Friderich's report. Although he made no assessment of Mr Mullins' diet over this time, Mr Friderich noted that Ms Richards' report appeared inconsistent with rations available in the UK during World War II. There was also some dispute over whether Mr Mullins would have been eligible for sortie meals.
There was documentary evidence in the reports of Dr English and Janine Lewis (attached to Dr English's report) about war rations in various military commands but this did not cover the situation in the UK.
Change in animal fat consumption: post-war diet
Mrs Mullins gave evidence that she lived with her husband from 1946 until his death in 1996. His diet remained constant during this time until about 1990 when he was diagnosed with cancer.
Mr Mullins spent approximately 50 per cent of each year overseas fulfilling his duties as a pilot with Qantas until his retirement in 1976. Mrs Mullins said that although she did not know exactly what her husband ate while he was away, she knew he was given a food voucher and ate in canteens and restaurants. On return to Australia his diet and food preferences did not change. He maintained his animal fat intake at a constant level throughout his post-service years until about 1990.
Ms Richards testified that she had assessed Mr Mullins' post-war animal fat intake at an average of 214 grams per day. Ms Richards also stated

her assessment of 214 grams a day was very close to Mr Friderich's assessment of 233 grams per day. Although she disagreed with Mr Friderich's overall conclusions she felt a similarity in results between the two dietitians was reassuring
when looking at Mr Mullins' animal fat diet and lifestyle as a whole she would be more comfortable with an average animal fat diet of 200 grams per day
she was satisfied with this assessment and its consistency with everything known of Mr Mullins on the balance of probabilities.

Mrs Mullins therefore submitted that for a period of at least 20 years, that is from the end of his service to 1990, Mr Mullins suffered a 100 per cent increase in his animal fat intake over his pre-service level.
This was an area of strong dispute between the parties. The Commission relied on Mr Friderich, particularly his report where using the food frequency questionnaire method he obtained a figure of 112 grams animal fat per day and using the daily eating pattern method he assessed animal fat intake at 233 grams per day.
Mr Friderich said Ms Richards' estimate would mean that Mr Mullins would have a body weight of approximately 136 kilograms, something that was inconsistent with the evidence. He would have been obese and would not have been able to work as a Qantas pilot. Mr Friderich also relied on the Schofield equation, a tool accepted by Ms Richards for certain purposes, but only as one indicator.
The Commission contended that the scientific scrutiny of Ms Richards' findings on Mr Mullins' post-service diet raised a number of validity problems which "disprove Ms Richards' findings". These problems were said to include marked inconsistency of results, particularly concerning energy intake in the post-service diet compared to the pre-service diet when the veteran was both considerably younger with a higher metabolic rate and living in an era demanding a high level of physical activity. The conformity of a usual diet over a period of 41 years was submitted to be most questionable in view of the many life changes experienced over that period and did not allow for the well-documented decrease in metabolic rate with aging.
The Commission also submitted that there were validity problems raised when the post-service findings in Mrs Mullins' submissions were "verified" with those of Mr Friderich "which of themselves raise major validity problems".
Change in animal fat consumption: conclusion
Is there material pointing to a 40 per cent increase in animal fat to at least 70 grams a day for at least 20 years? In my view the answer, taking all the material before me, is clearly yes. Whether I agree or not with Ms Richards' evidence on levels of animal fat intake her evidence exists and it is the evidence of a respected dietitian. This is evidence based on that of Mrs Mullins, on the three colleagues of Mr Mullins and to some extent of Dr English. Further, there is plausible evidence on the increase in animal fat consumption continuing for more than 20 years prior to the clinical onset of the disease. The material therefore clearly points to this element in factor 5(c) of the Statement of Principles.
As I have said, Ms Richards is a respected dietitian. Her evidence is clearly not tenuous, fanciful or impossible in the sense relied upon in the authorities. Therefore, I find that the material points to factor 5(c).
Relationship to service
Section 8(1)(b) of the Act relevantly provides
"Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran"

and Clause 4 of the Statement of Principles relevantly provides

"[A]t least one of the factors set out in clause 5 must be related to any relevant service rendered by the person."

Mr Crabb submitted that Mr Mullins stopped being a vegetarian during his war service. He ate sortie meals of eggs and bacon. He received chocolates as part of an in-flight meal. He developed a habit of consumption of so-called "comfort food" high in animal fats because of and during his war service, that is because of his wartime diet and the stresses of service. Dr English referred to psychological factors as relevant in food choice.
Mr Modder and Ms McConnell for the Commission strongly contested the issue of causation. For example, in their submissions they contended the mere claim of continuing the diet after service was insufficient to establish the cause of that continuation, referring to the concept of habituation
"Unless the Applicant provides some evidence that every day was exactly the same and the meals eaten were exactly the same then no habit would be established. Instead the question must be asked "what was the reason for the diet continuing post service?" It may be that the reversion to a normal civilian diet post war was enough to satisfy the continuation of the level, but that would mean the continuation was due to the civilian diet not the service." (Emphasis original)
They submitted that whereas Mrs Mullins attributed her late husband's liking for animal fat foods to a short period in the RAAF, such a liking if it existed could be equally explained by the nature of the long years of employment with Qantas and the nature of food available in hotels, motels, planes et cetera. It was also submitted that increasing consumption of animal fat after service simply because of a liking for the taste does not constitute a causal link to service. The Commission also invited the Tribunal to find that the causal nexus with service was broken by the Mr Mullins' 32 years of employment with Qantas post-service.
The Commission submitted that it was speculative to place much weight on a period of military service as responsible for food consumption patterns maintained for a minimum period of 20 years
"especially during a period when medical/health advice, changing food patterns in the community, and food availability in the market place [were] contrary to these food consumption patterns. Such a link can only be described as tenuous and unsupported by a reasonable level of evidence. The evidence in this matter does not advance any logical reason to attribute the increasing fat consumption post service to service." (Emphasis original)

Mr Modder and Ms McConnell contended that it was difficult to accept that a short period of service in one sector could impact on the diet of Mr Mullins to the extent that Mrs Mullins had suggested.

Taking the material as a whole without engaging in fact-finding at this stage, does it point to a connection between Mr Mullins' operative service and the increase in his animal fat consumption as required by the Statement of Principles? Again, in my view it clearly does. Again, I do not accept that it can be dismissed as fanciful, tenuous, too remote or impossible. The hypothesis fits the template of the Statement of Principles and is reasonable for the purposes of sections 120(3) and 120A(3) of the Act. Step three of Deledio is satisfied.
Step 4 of Deledio
Here the Tribunal must consider whether it is satisfied beyond reasonable doubt that death was not war-caused. Is there then evidence sufficient to establish beyond reasonable doubt that there is no sufficient ground for determining that Mr Mullins' death from prostate cancer was war-caused?
The Commission relied again on the evidence of Mr Friderich and the reports of Dr English. It particularly questioned the validity of Ms Richards' evidence. Much of this evidence has been referred to earlier, as have the contentions of the Commission.
In addition the Commission submitted that
"[I]t [was] an impossible task to obtain a valid pre-war level of animal fat intake, requiring the keeping of a detailed record of all food ingested, preferably armed with a calorie counter. Indeed, the only guarantee of success would be evidence that a veteran with prostate cancer was a [sic] anorexic before the War, and ever since then has eaten fatty foods and, a "habit" he can show is, more probably than not, due to his war time diet."

But I must note that the test is not whether it is more probable than not.

The Commission submitted that Ms Richards' report of Mr Mullins' pre-war animal fat intake is inconsistent with his estimated energy requirement. Similarly, the Commission contended that Ms Richards' war and service ration diet assessment of Mr Mullins was excessive in terms of the consumption of animal fat. Her assessed intake was inconsistent with the recorded food patterns of the period and with his estimated energy requirement at that time. The Commission submitted that Mrs Mullins' approach to all three periods – pre-service, service and post-service – was inappropriate in that it involved manipulating figures to meet the Statement of Principles' requirements
"Put bluntly, the Applicant's approach is mathematically fallacious."
The Commission submitted that more weight should be give by the Tribunal to the evidence of Mr Friderich as his evidence was cogent and the conclusions he reached were consistent with the findings of the English report "and his sworn evidence". His evidence was not compromised under cross-examination.
I have to repeat that the standard of proof in step four of Deledio is the criminal standard of beyond reasonable doubt. Ms Richards' evidence cannot in my view be assuaged beyond reasonable doubt. She is a credible, respected dietitian. Whether or not on the balance of probabilities her evidence would be accepted is not to the point.

In Re Keenan the Tribunal said
"59. This general consideration of the expert evidence before the Tribunal convinced the Tribunal that because of the inherent inaccurate basis of the post-war fat consumption survey and the pre-war and wartime diet surveys all comparisons derived from these figures cannot aspire to any degree of mathematical precision. However, as indicated earlier, it is on this evidence the Tribunal must make its decision."
In Re Karey and Repatriation Commission [2002] AATA 166 Senior Member Sassella said
"60. Not without certain misgivings, stemming largely from the need to rely on evidence that involves much guesswork and recollection, the tribunal finds that it cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's disability is war-caused."
I agree. I cannot be satisfied on all the evidence before me that on the criminal standard of proof of beyond reasonable doubt that Mr Mullins' death was not war-caused. The Tribunal therefore finds, for the purposes of section 8 of the Act and particularly in relation to step four of Deledio, that Mr Mullins' death was war-caused.
Addendum
During oral submissions on 2 August 2002 I expressed some displeasure at the attempts by the Commission to introduce new evidence in the form of final submissions, some one and a half months after evidence had closed. No application had been made to the Tribunal for this and it would have been grossly unfair to Mrs Mullins who would not have had any opportunity through her counsel to test that evidence.
I repeat my concerns and request that in future the proper procedure is followed when seeking to introduce new evidence after evidence has closed.
Decision
The decision under review of 28 July 1998 is set aside. In substitution therefor the Tribunal decides that Mr Mullins' condition of prostate cancer and his consequent death were war-caused. The date of effect of this decision is 27 April 1998.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 June, 2 August 2002
Date of Decision  2 August 2002
Date of Written Reasons         12 September 2002
Solicitor for the Applicant         Mr Paul Crabb, Snedden Hall & Gallop
Solicitor for the Respondent    Mr Stephen Modder, departmental advocate