Patrick and Repatriation Commission
[2005] AATA 1291
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1291
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/775
VETERANS’ APPEALS DIVISION ) Re SUZANNE SHIRLEY PATRICK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date22 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for widows pension.
................SIGNED.............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – not related to service – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Suzanne Shirley Patrick, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Patrick claims that her late husband, Kenneth Wilmot Patrick, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Patrick’s claim are:
(a)Kenneth Wilmot Patrick died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Patrick was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is an accepted cause of prostate cancer.
(d)Mr. Patrick’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while he served in the Royal Australian Air Force (the RAAF).
(e)The food that he had become accustomed to eating during his years in the RAAF was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Patrick’s death from prostate cancer was related to his RAAF service.
4. Mrs. Patrick’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5. The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6. Mrs. Patrick seeks a review of that decision.
Legislative Framework
7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11. Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused 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 death with the circumstances of the particular service rendered by the person.
13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting 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 Statement of Principles (SoP) that upholds the hypothesis.
14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.
Necessary Elements of Hypothesis
15. In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the RAAF, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.
16. If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.
17. In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“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 the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:
….
(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 prostate.
Other definitions
8. For the purposes of this Statement of Principles:
“animal fat” means fat contained in or derived from:
(a)meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds.”
Material Placed Before the Tribunal
18. The following matters are not in dispute and the Tribunal finds:
(a)Kenneth Wilmot Patrick was born on 22 November 1921.
(b)He enlisted in the RAAF on 25 May 1941.
(c)He was promoted to Airman Pilot on 8 January 1942.
(d)He served in the RAAF for over 5 years and was discharged on 24 January 1946.
(e)He rendered operational service in New Guinea from 8 January 1943 to 16 March 1943, and in the United Kingdom from 7 April 1944 to 17 September 1945.
(f)He married Suzanne Shirley Patrick on 10 April 1967.
(g)He was first treated for prostate cancer in February 1991.
(h)He died on 16 March 1994. The cause of death was renal failure – 2 weeks; carcinoma of prostate – 4 years; and metastases to rectum and abdomen – 6 months.
(i)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. Mrs. Patrick provided a written statement and gave oral evidence. She also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She met her husband in June 1966 in Shute Harbour and they were married on 10 April 1967. This was her husband’s second marriage.
(b)Her husband came from a boating family and went to sea from the age of 6. The only long term abstinence from this was during the war years.
(c)After the war, her husband built several boats and then his own 30 foot fishing boat, which he used for professional fishing for tuna and mackerel for about 11 years. This was hand line fishing where he would often have 2 or 3 lines over the side to catch the large fish. Generally he fished by himself or with one other person.
(d)When she met her husband he did all his own cooking, he was a good cook, but he cooked fatty foods.
(e)During his employment at sea, Mr Patrick normally cooked for himself.
(f)When he was home from work, she would cook him what he requested and liked.
(g)Mr Patrick was a very heavy drinker; he loved rum with a beer chaser and would drink plenty of it. He was also a heavy smoker. He would have a drink at lunch and dinner and throughout the afternoon. He drank beer or rum and coke or rum and milk.
(h)When Mr Patrick was working for a tourist resort he would normally eat at the resort’s buffet which had a wide selection of food. When Mrs Patrick was visiting him at the resorts, she would observe that he ate similar food to that which she would cook for him, such as fried or roasted food and food that contained cream.
(i)When her husband cooked he always used a lot of oil. When Mrs. Patrick would go out of an evening and he was doing his own cooking, she would observe that when she came home a ring of fat would be around that top of the stove left over from his cooking.
(j)For breakfast Mr Patrick would eat 2 pieces of toast and some fish past or peanut butter and margarine with a very strong coffee, two sugars and no milk. He only had bacon at weekends.
(k)For morning tea Mr Patrick would eat 2 sandwiches, usually ham mustard and margarine.
(l)For mid-afternoon he generally drank beer or rum.
(m)For dinner for many years he would eat a roast or steak with vegetables. If he had a steak, it was normally a big rump. Often the steak would be wrapped in bacon before being fried in a pan with dripping.
(n)To accompany the steak or chops for dinner, Mr Patrick would either have mashed potatoes plus beans or peas. The potatoes always had butter and milk added and the beans or peas always had butter and gravy added over the top.
(o)Mr Patrick always ate the fat around the side of steak and chops, while Mrs Patrick cut hers off.
(p)Mr Patrick enjoyed eating roasts. These would always be cooked in a pan with vegetable oil and vegetables. The vegetables that always accompanied a roast were potatoes, pumpkin and onion.
(q)While Mr Patrick enjoyed milk in his rum, he did not drink milk on its own. However, he enjoyed eating cream on desserts. He could eat half a carton of cream desserts in one sitting. He had cream two to four times per week.
(r)Mr Patrick loved cheese and it was not uncommon for him to eat a 250gram block of cheese in a week. He liked to snack on cheese between meals and would also snack on cheerio’s between meals.
(s)He used butter on his bread once per week. He used margarine the rest of the time.
(t)She described his fitness as always extremely high and provided the following timeline for Mr Patrick’s work years:
(i)1966-1970 4 years with Roylen Cruises as an engineer.
(ii)1970 – 1973 3 years with Fenwich Tugs as Tug Master.
(iii)1974 – 1981 Roylene Cruises as boat builder/repairer and general maintenance.
(iv)1982 Skipper at Hayman Island about 3 times throughout the year. Each time approximately 2 to 3 months.
(v)1982 – 1984 14 months Skipper at Lindeman Island.
(vi)1984 – 1985 Few relief jobs.
(vii)January 1985 Moved to Witt Island, Gladstone. Mr Patrick inherited a 5 acre property after his mother died.
(u)He worked for Roylen Cruises (based in Mackay) which kept him away from home five and a half days per week and on Brampton Island, usually for a week at a time, for many years. The companies were owned by the one person.
(v)Mr Patrick then worked for Fenwick Tugs where he had regular 24-36 hour shifts. He also worked on Hayman Island where he would be away for up to three months at a time. Later he worked on Lindeman Island where he had a fourteen month stay away from home.
(w)Mrs. Patrick would see Mr Patrick during his long voyages, she would go out on a cruise a couple of times a year with their daughter Janelle so they could visit and see various places.
(x)As an engineer Mr Patrick was constantly climbing up and down ladders to get to the engine room. He also had to strip down or partly dismantle an engine if there was a problem. Machine maintenance and acting as Skipper required large amounts of energy as he would make multiple trips and load and unload cargo.
(y)When he inherited the property at Gladstone, Mr Patrick was 63 years and Mrs Patrick was 43 years. The property was a tree covered, rock strew island with no beach and only one landing area which was rough with shell grit. There was a pre-1938 fisherman’s shack on it and an outside toilet. Nothing else. The Patrick’s cleared a road and then built a house on the land. She assisted her husband in building the house. There was a lot of physical labour involved and they had to do a lot of travel to get materials and to do their personal business.
(z)Towards the end of Mr Patrick’s life, Mrs Patrick injured her back helping to build the house and from carting boulders, rocks and soil to make retaining walls and garden areas. She went to the mainland to live to recover and to get some part-time work. Mr Patrick remained on the island and refused to leave. He would not move until his health deteriorated.
(aa)Until about the last year or so of her husband’s life he was physically active he was adamant that he would not leave the island unless he was “in a box”. However, he occasionally stayed with her in the apartment that she had. Mrs Patrick did his grocery shopping, and got his library books. She did all of his washing and ironing. He stayed in town with her during his cancer treatment.
20. There is no evidence as to what Mr. Patrick’s animal fat intake was prior to his service in the RAAF. A national survey conducted by the Australian government in 1936-38, concluded that the average Australian adult male consumed about 126 gm of animal fat per day.
21. There is no specific evidence as to what Mr. Patrick ate while he was in the RAAF. The records show that when he served in New Guinea in early 1943, his ration pack would have contained 113.9gm of animal fat per day. During his service in the United Kingdom in 1944/45 his ration packs would have contained 86.9 gm of animal fat per day.
22. The material available to the Tribunal indicates that Mr. Patrick’s consumption of animal fat probably decreased during his RAAF service, compared to his pre-service diet.
23. There is no evidence as to what Mr. Patrick ate in the twenty years following World War II, from 1946 to 1966. Suzanne Patrick was only able to give evidence about Mr. Patrick’s diet after they met in 1966.
24. There seems to be no doubt that Mr. Patrick had a diet which was relatively high in animal fat content from 1966 onwards. However, it is impossible to tell from the material available to the Tribunal whether Mr. Patrick’s taste for animal fat arose pre-service or in the twenty years post-service. He does not seem to have had a diet high in animal fat content during his RAAF service.
25. There is no evidence that Mr. Patrick’s post 1966 diet had anything to do with his RAAF service.
26. Consequently, the material placed before the Tribunal does not raise a hypothesis that Mr. Patrick increased his consumption of animal fat whilst on service, such that he then increased his consumption of animal fat in his post-war service diet.
27. No hypothesis is raised which links the death of Mr. Patrick with the particular circumstances of his eligible service.
28. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05;
20, 22.6.05; 30.9.05
Date of Decision 22 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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