MYERS and REPATRIATION COMMISSION
[2010] AATA 710
•16 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 710
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2716
VETERANS AFFAIRS DIVISION ) Re HEATHER MYERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date16 September 2010
PlaceCanberra
Decision The decision under review is affirmed. ................................[sgd]..............
Mr S. Webb, Member
CATCHWORDS
VETERANS ENTITLEMENTS – widow claim – kind of death - neoplasm of the prostate - consumption of animal fat - hypothesis connecting death with operational service not raised by whole of material - hypothesis of connection not reasonable hypothesis - decision affirmed
Veterans Entitlements Act 1986 ss 8, 13, 119, 120, 120A
Statement of Principles 28 of 2005
Byrnes v Repatriation Commission (1993) 177 CLR 564
Connors v Repatriation Commission (2000) 59 ALD 61
Critch v Repatriation Commission (1996) 43 ALD 574
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Jakab v Repatriation Commission [2007] FCA 898
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Glanville [2010] FCA 405
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v McKenna (1998) 28 AAR 7
Tunks v Repatriation Commission [2008] FCA 521
REASONS FOR DECISION
16 September 2010 Mr S. Webb, Member 1. The Applicant, Heather Myers, is the widow of William Myers, a veteran with operational service in the Royal Australian Navy (RAN) in World War 2. Mrs Myers claimed a service pension on the basis that her late husband’s death was war-caused. Her claim was rejected by the Repatriation Commission and on review by the Veterans Review Board. Mrs Myers is not happy with this result.
2. I was informed at hearing that a number of matters were not in dispute:
(a)Mr Myers was born on 12 February 1926 and was raised by his parents on a farm at Bootle Park, Bittern in Victoria;
(b)he enlisted in the RAN and had operational service from 13 June 1944 to 27 August 1946, serving on the HMAS Lithgow from 27 October 1944 to 24 July 1946;[1]
(c)he married Mrs Myers on 16 February 1952 and she was his dependant;[2]
(d)he was diagnosed with “poorly differentiated adenocarcinoma of the prostate” on 24 August 1984;[3]
(e)on 19 May 1988 he claimed a disability pension;[4]
(f)he died on 5 December 1989.[5]
[1] T3.
[2] T12 folio 162.
[3] T12 folio 73.
[4] T12 folios 78 to 84.
[5] T12 folio 86.
Applying the reasonable satisfaction standard, these facts are established, and I so find.
3. It is common ground that metastatic carcinoma and carcinoma of the prostate caused Mr Myers’ death. For the purposes of section 120A of the Veterans Entitlements Act 1986 (the Act),[6] the ‘kind of death’ Mr Myers suffered was malignant neoplasm of the prostate.
[6] Repatriation Commission v Codd [2007] FCA 877 at [33], [39].
4. Thus, the issue to be decided is whether or not Mr Myers’ death, as described, was war-caused. Subsection 8(1) of the Act provides that the death of a veteran shall be taken to be war-caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran. In order to properly address that matter, applying the principles set out in Repatriation Commission v Deledio[7] it is necessary to determine:
(a)whether a hypothesis connecting the death with the particular service is raised on the material; and if so
(b)whether a Statement of Principles (SoP) is applicable; and if so
(c)whether the raised hypothesis is consistent with the applicable SoP and is therefore a reasonable hypothesis; and
(d)whether it is established, beyond reasonable doubt, that there is no sufficient ground for determining that the death is war-caused.
[7] Repatriation Commission v Deledio (1998) 83 FCR 82 at 96 and 97.
5. Mrs Myers’ representative, Mr John Orr, informed me that the hypothesis raised is as follows:
(a)prior to enlisting Mr Myers was living in difficult circumstances, alone, and with a poor diet, consuming low levels of animal fat – estimated to be approximately 24.7 to 35.5 grams per day;
(b)during the period of his service he consumed elevated levels of animal fat – estimated to be an average of approximately 122.5 grams per day;
(c)as a result Mr Myers developed a preference for or an addiction to animal fat and he continued to consume elevated levels of animal fat post war – estimated to be 70 grams per day;
(d)this dietary preference for high levels of animal fat continued until Mr Myers was advised to reduce his weight on medical grounds in or about 1970;
(e)thereafter he struggled to maintain a low-fat diet;
(f)he was diagnosed with prostate cancer in 1984 and subsequently died of that disease in 1989.
6. In support of this hypothesis, Mr Orr drew attention to Mr Myers’ service records and to materials and evidence provided by Mrs Myers,[8] Mrs Jessop (the veteran’s daughter),[9] Mr Bryan Myers (the veteran’s son),[10] Mr Norman Jack,[11] Ms Linda Smillie (a consultant dietician),[12] Dr David Mann (a consultant dietician),[13] and ‘reconstructed’ diets compiled by Mrs Jessop and Mr Brad Jessop.[14]
[8] Exhibit A2, T5 folio 29.
[9] T12 folio 59.
[10] T12 folio 115.
[11] T12 folio 114.
[12] Exhibit A1 and T12 folios 105 to 110.
[13] Exhibit R1.
[14] T12 folios 61 and 62, and T12 folios 118 and 119.
7. In Mr Orr’s submission this material raises or points to the hypothesis of connection between Mr Myers’ death and his operational service.
8. Whether or not that is correct is a question of fact.[15]
[15] Repatriation Commission v Bey (1997) 79 FCR 364 at 373.
9. In order to properly address this question it is necessary to have regard to all of the material that is before me.[16] It is not necessary to reject or evaluate the weight or acceptability of the evidence or to resolve conflicts at this stage[17] - “the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable”.[18] The occurrence or existence of a ‘fact’ may be assumed or inferred in some cases, but an assumed fact cannot arise in the abstract – it must be “reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis.[19] Nevertheless, a reasonable hypothesis involves more than mere possibility – a reasonable hypothesis “is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities”.[20] Plainly enough, applying subsection 120A of the Act a hypothesis that is raised on the material will only be a reasonable hypothesis if it is consistent with the applicable statement of principles. Even so, a hypothesis connecting the death of a veteran and the particular service rendered by the veteran must be supported by material pointing to each of the elements that are essential to establish the causal chain.[21] If an essential link in the hypothetical chain linking the death of the veteran and the circumstances of his relevant service, as required by a statement of principles for example, is not pointed to or raised by the material, and is merely asserted as a possibility or left open, then it follows that the hypothesis of connection is not raised and, to the extent that it is not consistent with the requirements of the applicable statement of principles, it is not reasonable.[22]
[16] Repatriation Commission v Codd [2007] FCA 877 at [12].
[17]Repatriation Commission v Deledio (1998) 83 FCR 82 at 97; Dunlop v Repatriation Commission [2003] FCAFC 201at [35].
[18] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570.
[19] Critch v Repatriation Commission (1996) 43 ALD 574 at 577.
[20] Repatriation Commission v Bey (1997) 79 FCR 364 at 372 and 373; also see East v Repatriation Commission (1987) 16 FCR 517 at 522.
[21] Repatriation Commission v Hill [2002] FCAFC 192 at [57].
[22] Dunlop v Repatriation Commission [2003] FCAFC 201 at [34]; Connors v Repatriation Commission (2000) 59 ALD 61 at 68; Repatriation Commission v McKenna (1998) 28 AAR 7 at 15 and 16.
10. As it appears to me, significant aspects of the hypothesis posed by Mr Orr are not pointed to by ‘facts’, albeit not proved, that are raised by the materials before me.
11. The first difficulty concerns assumptions about Mr Myers’ diet prior to enlisting in June 1944. There is no material or evidence from the deceased veteran about his pre-war diet. Without resorting to proof, the materials and the evidence before me suggest that Mr Myers lived on a sheep farm at Bootle Park, Bittern before enlisting – he was an only child who lived on the farm with both his parents until December 1940, when his father enlisted in the Australian Army.[23] It appears that his mother was institutionalised in or about 1942 and died in May 1943. The evidence of Mr Jack, a cousin and childhood friend of Mr Myers, suggests that prior to the war the family consumed produce from the farm, including sheep and vegetables. The evidence of Mrs Myers, Mrs Jessop, Mr (Bryan) Myers and Mr Jack, suggests that William Myers lived in strained circumstances, alone on the farm, from late in 1942 until six weeks prior to his enlistment in June 1944, when he resided with the Jack family. The evidence of family members suggests that when Mr Myers was living by himself on the farm, he may have obtained eggs, milk, fish, meals at a hotel owned by an aunt and other support from an extended family network - while Mr Myers was an only child, both his parents were from large families and a number of aunts and uncles lived in reasonably close proximity.
[23] T12 folio 95.
12. Mrs Myers’ evidence is that she has “no idea” of her late husband’s diet before the war – she lived in a different area and only met him after the war; she did not assist in the preparation of documents concerning his pre-war diet and only saw these some time later. Mr (Bryan) Myers’ evidence is that he, too, did not know what his father ate during this period, pre-service, but stated that his father would not slaughter sheep for himself, alone, as this would be wasteful; rather he would catch rabbits, which were plentiful – “he used to love them. He would bake them in the oven and he and I would eat them”.[24] Mr Jack’s evidence is that Mr Myers “was a stocky boy but in the year or two before going to war he trimmed down”; Mr Jack’s evidence suggests aspects of Mr Myers’ diet at the time.[25]
[24] Oral evidence of Mr Bryan Myers.
[25] T12 folio 114.
13. Thus, there is very little material pointing to the contents of Mr Myers’ pre-service diet it is necessary for the purposes of the hypothesis posed by Mr Orr to make assumptions or to draw inferences as to the amount of animal fat he may have ingested during this period.
14. Family members have ‘reconstructed’ possible diets that Mr Myers may have consumed at various times, including during the pre-service period when it appears that Mr Myers lived by himself on the farm at Bootle Park.[26] The ‘reconstructed’ diets have been analysed by Ms Smillie and Dr Mann and resulting levels of animal fat have been calculated and reported.[27] As I understand the case for Mrs Myers, the hypothetical increase in Mr Myers’ consumption of animal fat is raised on the basis of these analyses. There is substantial agreement between Ms Smilllie and Dr Mann about the analysis of the reconstructed diets and the resulting levels of animal fat. Ms Smillie and Dr Mann also agree about the likelihood that Mr Myers would have lost weight if the reconstructed pre-war diet is correct, as the reconstructed diet does not contain sufficient calories to meet his likely energy requirements in the particular circumstances at the time: the longer he stayed on the diet, the more weight he would have lost.
[26] T12 folios 118 and 119; T12 folios 61 and 62.
[27] T12 folio 105 to 113 and folios 120 to 145; Exhibit A1; and Exhibit R1.
15. Mr Myers’ service records contain materials concerning Mr Myers physical characteristics at the time of his service. Naval Recruiting Office documents reveal that Mr Myers’ height and weight on 12 May 1943, 13 months prior to enlistment – his height was 5 feet 8 inches (172 centimetres) and his weight was 10 stone 10 pounds (68 kilograms) at that time.[28] The evidence of Ms Smillie and Dr Mann is that the service records suggest that Mr Myers had a body mass index (BMI) of 22.9 in May 1943 – “a very healthy BMI”.[29] Mr Jack’s evidence suggests that Mr Myers’ mother died in May 1943 and thereafter he lived alone on the farm at Bootle Park until 6 weeks prior to enlisting. On enlistment on 13 June 1944, Mr Myers’ weight is recorded to be 150 pounds (10 stone 10 pounds).[30]
[28] T3 folio 7.
[29] Oral evidence: cross-examination of Ms Smillie; T12 folio 106 and Exhibit R1, p8 refer.
[30] T3 folio 6.
16. As can be seen, this material does not point to Mr Myers experiencing any weight loss during the period from May 1943 to June 1944. The assumptions contained in the reconstructed pre-service diet, when analysed by Ms Smillie and Dr Mann,[31] produce results that suggest Mr Myers would have experienced significant weight-loss if the reconstructed diet is true. There are three things to say about this. Firstly, at this stage it is not necessary to resolve conflicts in the materials in order to determine whether a hypothesis of the requisite kind is raised. Secondly, the inconsistent result is consistent with Dr Mann’s evidence that the pre-war diet is not valid. Thirdly, on the evidence of Ms Smillie and Dr Mann, the reconstructed pre-service diet is simply a set of assumptions; it is a hypothetical construct that posits a number of possibilities that point to the hypothesis posed by Mr Orr. Without resorting to proof, or rejecting or evaluating the comparative weight of the materials before me, it is necessary to determine whether or not the assumptions in the reconstructed pre-service diet are sufficient to raise the hypothesis of connection posed by Mr Orr. Are the dietary assumptions ‘facts’, albeit not proved, that rise from the material? Can these assumptions reasonably be inferred from the materials before me, or are they pointed to or raised by those materials?
[31] T12 folio 118.
17. As it appears to me, these questions are answered in the negative - the assumptions about Mr Myers’ possible pre-service diet are not pointed to and cannot reasonably be inferred from the whole of the materials before me. The evidence of Ms Smillie and Dr Mann suggests that the ‘reconstructed’ pre-service diet does not contain sufficient calories to meet the energy requirements of a young man of Mr Myers age prior to enlistment, and this would result in significant and increasing weight loss: the longer the deficient diet continued, the greater the weight loss. Ms Smillie reported that “his pre-war calorie intake was inadequate to sustain his weight and physical activities, however as noted in my original report, there is evidence that the veteran did indeed lose weight during this pre-war period”.[32] The objective evidence in the service records concerning Mr Myers’ height and weight in May 1943 and his weight in June 1944 does not point to any such weight loss, however.
[32] Exhibit A1, p2.
18. If one considers the oral evidence of Ms Smillie and Dr Mann concerning other possible dietary variants in the pre-service period, replacing rabbit with sheep for example, different animal fat estimates may be derived, but the quantum of any variation would need to be properly assessed. It is abundantly clear, as Ms Smillie and Dr Mann indicated, that the estimates provided on-the-spot are simply indicative of variations in animal fat content that may result from changes in dietary assumptions or components. To my mind, this evidence simply points to the speculative nature of the dietary assumptions concerning Mr Myers’ pre-service diet. The oral estimates of animal fat content arising from dietary variations put to Ms Smillie and Dr Mann during the hearing are subject to the caveats expressed –analysis would be required to provide a properly considered estimate for each dietary variation in order to assess any resulting variation in the level of animal fat or calories.
19. For these reasons, it appears to me that the dietary assumptions posited by Mr Jessop and Mr Orr, on which Ms Smillie relied when producing her reports, are not pointed to or raised by the materials before me; nor can those possibilities reasonably be inferred as ‘facts’, although not proved, rising from those materials.
20. Of course, the presence of materials setting out assumptions or possibilities, whether supported or not and however controversial or flawed, may be sufficient to raise a hypothesis.[33] This is a matter to which I will return.
[33] Repatriation Commission v Glanville [2010] FCA 405 at [57].
21. The second difficulty with the hypothesis posed by Mr Orr concerns the requisite connection between Mr Myers’ post-service diet, and his consumption of animal fat in particular, and the circumstances of his operational service. While much of the evidence and argument in this case has been directed to aspects of Mr Myers’ diet at various times, little attention was paid to the requirement for a causal relationship between the alleged increase in animal fat consumption and the circumstances of Mr Myers’ operational service.[34]
[34] Sections 8(1)(b) and 196B(14), Veterans Entitlements Act 1986.
22. The materials suggest that on demobilisation in August 1946 Mr Myers’ height was 5 feet 9 and 3/4 inches (177 centimetres) and his weight was 12 stones 8 pounds (79.8 kilograms).[35] The evidence of Ms Smillie and Dr Mann suggests that this equates to a body mass index of 25.5, in the ‘overweight’ category.[36] Ms Smillie’s evidence is that Mr Myers increase in height was a function of his age during the period of his service, but this alone would not explain the increase in his body mass index. Her evidence-in-chief is that the increase could only be caused by two factors – eating more or doing less. When further examined on this point she agreed that an increase in physical activity and related muscle mass may also produce an increased body mass index. Even so, her evidence, as reported, is that the increase in Mr Myers’ body mass index from June 1944 to August 1946 was likely to have been due to dietary increases.[37] Ms Smillie and Dr Mann agree that the increase in Mr Myers’ weight during the period of his service may be attributed in part at least to growth Mr Myers experienced in his late teenage years.
[35] T12 folio 160.
[36] T12 folio 106; Exhibit R1, p8.
[37] T12 folio 106.
23. Does this material point to or raise a hypothetical connection between Mr Myers’ post-service dietary preferences, especially in relation to animal fat, and the circumstances of his service?
24. Unfortunately there is very little material before me on this point. It is necessary to carefully examine all of the material to determine whether or not a causal link to service is pointed to or raised, or whether it can reasonably be inferred from those materials. This is not a case in which there is material from Mr Myers or from his widow, or anyone else for that matter, concerning his development of a liking for foods he consumed during the period of his service. Mrs Myers’ evidence points to Mr Myers disliking foods that he consumed on service. In her oral evidence she said that her husband told her that the food on service was not satisfying, the servings were small and they had a lot of canned food – “he said it was rubbish, especially the camp pie”. To that extent at least cases such as Tunks v Repatriation Commission[38] are distinguished.
[38] [2008] FCA 521 at [12].
25. Ms Smillie agrees with Dr Mann that food preferences are multi-factorial in origin and that there is presently insufficient evidence to demonstrate an addictive model of fat over-consumption,[39] on that subject she said that “the jury is out”. There is no material from Ms Smillie or Dr Mann that points to Mr Myers becoming habituated to or developing a dietary preference for fatty foods during the period of his service; the proposition that he may have developed a dietary preference for fatty foods is simply left open. Furthermore, there is no material to support Mr Orr’s submission that Mr Myers commenced eating fatty foods during the period of his service.
[39] Exhibit R1, p24; oral evidence of Ms Smillie and Dr Mann.
26. It appears that Mr Myers returned to live at the farm at Bootle Park, Bittern with his father in or about August 1946. There is very scant material concerning Mr Myers’ diet in the period from August 1946 to 1952. Mrs Myers’ evidence is that she met Mr Myers in 1948 and “he was slightly stocky with a little bit of a tummy and a girth”.[40] Her evidence is that she did not know what he was eating at the time, but he may have been eating sheep and vegetables produced on the farm with his father.[41] Mrs Myers married her late husband in 1952 and they assumed ‘traditional roles’. Her evidence is that she cooked simple and plain meals for her husband – “William liked their plainness. He was fussy with his food and did not like spices or different food. William ate a lot of food.”[42] Mrs Myers gave evidence that her husband made comments about her cooking – “He would say things like ‘You are a good cook’; ‘You make plain meals with good vegies, just the way I like it’; ‘This is delicious, better than I ever had’; and ‘I never got food this good at the war’. He would go back to the baking dish for more meat, and for seconds”.[43] In a second supplementary statement Mrs Myers stated that her late husband “enjoyed the fat on meat” and would “eat dripping on bread” as a snack or after meals.[44] On the evidence of Mrs Myers, Mr (Bryan) Myers and Mrs Jessop, it appears that these dietary preferences continued until at least 1970, when Mr Myers commenced a low-fat diet on medical advice. In her oral evidence Mrs Myers explained that Mr Myers told her that his meals on service were “rubbish, especially the camp pie”, “he ate it, but the servings were small”. When re-examined on this point, Mrs Myers explained that “he wouldn’t let me buy it. He said it was awfully greasy and he didn’t like it”.
[40] Exhibit A2, Supplementary Statement, 21 September 2009, p1.
[41] Oral evidence; Exhibit A2, Supplementary Statement, p1.
[42] Exhibit A2, Supplementary Statement, p1.
[43] Exhibit A2, Supplementary Statement, p2.
[44] Exhibit A2, Second Supplementary Statement, 28 June 2010 p1.
27. The evidence of Mrs Myers, Mrs Jessop and Mr (Bryan) Myers suggests that Mrs Myers’ late husband liked the kinds of food he was used to eating on the farm, with clear preferences for roast meat, particularly sheep and rabbit, vegetables cooked in dripping, and bread with dripping. The evidence of Mr Jack and Mr (Bryan) Myers suggests that he may have experienced a similar diet prior to the war, living on the farm with his parents. There is no material that points to Mr Myers developing a liking for fatty cuts of meat during the period of his service – the available material suggests that these preferences may have an earlier origin.
28. This evidence does not point to any habituation or preference for foods Mr Myers consumed during the period of his service.
29. There is very scant evidence concerning Mr Myers service diet, although on the evidence of Mrs Myers his diet at that time included quantities of canned meat. The evidence of Dr English, Ms Smillie and Dr Mann suggests that Mr Myers’ service diet may have contained quantities of canned meat in various forms, including substantial amounts of animal fat. There is no material pointing to Mr Myers developing new or different dietary preferences as a result of consuming these foods. The material before me suggests that Mr Myers’ diet, and his food preferences, after 1946 and in later years was similar to the diet he may have experienced on the farm as a child pre-war, and it was quite dissimilar to his diet during the period of his service. Mrs Myers’ evidence suggests that Mr Myers avoided foods that were similar to those provided during the period of his service. Furthermore, the post-service dietary analysis suggests that Mr Myers consumed a lower level of animal fat after service than during service. Thus, all that can be said on the present material is that the proposition that Mr Myers’ service diet influenced his food preferences in later life, especially in relation to animal fat, remains open as a possibility, but the possibility is not pointed to or raised by the materials before me and cannot, therefore, be assumed or inferred.
30. Thus, as it appears to me, the materials before me do not point to or raise a connection between Mr Myers’ food preferences, and any increase in his consumption of animal fat, in his post-service years with the circumstances of his operational service.
31. In sum on this point concerning the hypothesis posed by Mr Orr there are four things to say. Firstly, the materials before me suggest that the estimated amount of animal fat Mr Myers consumed from 1960, after the period of his operational service, was lower than the estimated amount he consumed on service – 70 grams per day compared to 122.5 grams per day. Secondly, the nature and composition of Mr Myers’ diet and the amount of animal fat he consumed prior to enlisting is a matter of conjecture; the amounts calculated by Ms Smillie and Dr Mann are based on speculative assumptions set out in reconstructed diets composed by Mr Jessop and other family members. These assumptions and the resulting dietary analyses of animal fat consumption are not pointed to by the materials before me and are inconsistent with objective evidence contained therein. Thirdly, constructing speculative possibilities and presenting these as hypothetical ‘facts’ in support of a hypothesis connecting the death of a veteran and the circumstances of his operational service is fraught with difficulty, especially when the possibilities raised are not consistent with objective known facts. This is not a matter of rejecting or evaluating the comparative weight or acceptability of the material; it is simply a matter of examining the materials before me to determine whether a hypothesis of connection is raised or pointed to. While it may be accepted that a hypothesis by definition exists in the realm of possibility, being no more than supposition, if the hypothesis assumes the existence of a ‘fact’, without resorting to proof the assumption or the hypothetical ‘fact’ must be pointed to by the materials before the decision-maker.[45] Fourthly, there are no materials that raise or point to any connection between the circumstances of Mr Myers’ operational service and his dietary preferences, including the amount of animal fat he consumed, at various times thereafter. The causal connection is simply left open as a possibility. This element of the posed hypothesis is not raised by the materials before me.
[45] Repatriation Commission v Glanville [2010] FCA 405 at [57]; Connors v Repatriation Commission [2000] FCA 783 at [19].
32. For these reasons, considering all of the materials before me, I am compelled to conclude that two essential elements of the hypothesis posed by Mr Orr are not raised by or pointed to by the materials before me. In consequence, I am reasonably satisfied and find that no hypothesis of connection between Mr Myers’ death and the circumstances of his operational service is raised on the materials.
33. Nevertheless, even if that were not so, or I am incorrect in that finding, it would not assist Mrs Myers’ case. I will proceed to consider the hypothesis posed by Mr Orr in relation to the applicable Statement of Principles.
34. The relevant Statement of Principles that applies in this matter is Statement of Principles No 28 of 2005. Mr Orr informed me that Mrs Myers is relying on factor 5(c) of that instrument. I am satisfied that no other factor is applicable in the circumstances.
35. As can be seen the particular factor requires ‘increasing animal fat consumption by at least 40% and to at least 50 gm/day and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate’. For a hypothesis relying on this factor to be a reasonable hypothesis the increased consumption of animal fat must be ‘related to the relevant service of the person’. Applying subsection 196B(14) of the Act, a factor is related to service rendered by a person if it ‘arose out of, or was attributable to, that service’.
36. Mere possibility is not sufficient to establish a reasonable hypothesis;[46] a reasonable hypothesis is one that conforms to the template of the applicable Statement of Principles.[47] One must apply the tests and the methodologies set out in the established authorities.[48]
[46] Repatriation Commission v Bey (1997) 79 FCR 364 at 373.
[47] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97.
[48] Repatriation Commission v Glanville [2010] FCA 405 at [70]; Repatriation Commission v Deledio (1998) 83 FCR 82 at 96.
37. Unfortunately for Mrs Myers, the hypothesis posed by Mr Orr does not satisfy the Statement of Principles on two grounds, concerning the quantum and causal elements of factor 5(c). Firstly, to my mind the materials do not raise ‘facts’, although not proved, that point to a 40 percent increase in Mr Myers’ consumption of animal fat in the period following 1959 (25 years prior to the clinical onset of his malignant neoplasm of the prostate) compared to his consumption of animal fat on or prior to service. The materials suggest that his estimated ingestion of animal fat after 1960 is 70 grams per day; this is substantially less than the estimated level of animal fat in Mr Myers’ service diet. The pre-war dietary assumptions on which Mrs Myers relies are not consistent with the objective facts and are not pointed to by the whole of the material before me and, as a result, the estimated level of animal fat ingestion arising from those assumptions cannot be assumed or inferred. The oral evidence of Ms Smillie and Dr Mann concerning possible variations in Mr Myers’ pre-service diet and possible resulting variations in the level of animal fat do not assist on this point – this evidence was subject to caveats concerning proper analysis and is purely speculative.
38. But this in not the only consideration. Secondly, the materials do not point to or raise a causal connection between any increase in Mr Myers’ consumption of animal fat at any time after service and the circumstances of his operational service. If anything, the materials point to a contrary conclusion.
39. Each of these considerations renders the hypothesis not consistent with the Statement of Principles 28 of 2005. On either ground, the hypothesis posed is not a reasonable hypothesis for the purposes of sections 120(3) and 120A(3) of the Act. For these reasons, even if it was found that the hypothesis posed by Mr Orr is raised on the material, as it appears to me it would not be a reasonable hypothesis.
40. Nevertheless, proceeding further for abundant clarity, even if the hypothesis was found to be consistent with the Statement of Principles and therefore reasonable, it would not assist Mrs Myers case. The simple reason for this is that the hypothesis relies upon dietary assumptions in relation to the period prior to Mr Myers’ enlistment in June 1944 that are not consistent with known facts. Analysis of the assumptions reveals that the reconstructed diet would not provide sufficient calories to meet Mr Myers’ energy requires – the diet would produce 1500 calories per day, whereas Mr Myers’ energy requirements were reported by Dr Mann and Ms Smillie to be in excess of 1800 calories per day at a very low level of activity. When one considers the strong likelihood that a higher level of activity was being undertaken, riding a bicycle or a horse up to 14 kilometres a number of days each week and playing sport for example, the calorie requirement is likely to be substantially greater – Dr Mann estimated an increase of more than 1000 calories per day. The evidence is tolerably clear that even at the lower level of activity, Mr Myers would be expected to lose up to 1 kilogram per week for each week he continued on the reconstructed diet. The fact that stands contrary to this element of the hypothesis is the clear and objective evidence that Mr Myers did not lose any weight in the period from 12 May 1943 to 14 June 1944. This fact is clear evidence that Mr Myers’ diet during this period was not so deficient in calories that he lost weight. It is tolerably clear to me that the reconstructed diet cannot be sustained on the present evidence: it is not conceivable that Mr Myers maintained his weight and his healthy body mass index while surviving on the reconstructed diet. It follows that the estimate of animal fat in Mr Myers’ pre-service diet cannot be sustained. That essential element of the hypothesis of connection is disproved, beyond reasonable doubt, by the objective evidence contained in Mr Myers’ service records. That being so, it follows that there is no sufficient ground for determining that Mr Myers’ death was war-caused pursuant to subsection 120(1) of the Act. Mr Orr’s submissions concerning section 119 of the Act do not take the matter further. While inferences arising from the evidence cannot be ignored, the beneficial nature of the Act and section 119 cannot be used to plug evidentiary gaps in a veteran’s case.[49]
[49] Jakab v Repatriation Commission [2007] FCA 898 at [36]; Mason v Repatriation Commission [2000] FCA 1409 at [75].
41. Thus, when the whole of the material before me is considered, and the various methodologies are applied in relation to subsections 120(1), 120(3) and 120A(3) of the Act, Mrs Myers’ case must fail.
42. That being so, the decision under review must be affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ..................[sgd]..............................................................
AssociateDate/s of Hearing 31 August and 1 September 2010
Date of Decision 16 September 2010
Advocate for the Applicant John Orr
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Gerald Purcell
Solicitor for the Respondent Rosalinda Casamento
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